In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops

Saturday, May 29th, 2010

In a column last month I wrote about Anthony Graber, a Maryland man who was arrested for posting a video of a traffic stop to YouTube. Graber was pulled over on his motorcycle by Maryland State Trooper Joseph David Ulher. Uhler drew his gun during the stop. Graber was wearing a camera on his helmet. Graber thought Uhler’s actions were excessive, so he posted the video to the Internet. Days later, police raided the home of Graber’s parents. Graber was arrested, booked, and jailed. He was charged with violating Maryland’s wiretapping statute. In an interview he gave to blogger Carlos Miller shortly after, Graber said, “The judge who released me looked at the paperwork and said she didn’t see where I violated the wiretapping law.”

In my previous column, I interpreted that to mean the judge had dropped the charge. Apparently that isn’t the case. Graber is due in court next week. He faces up to five years in prison. State’s Attorney Joseph Cassilly has also charged Graber with “Possession of an Interception Device.” That “device” would be Graber’s otherwise-perfectly-legal video camera.

Graber’s case is starting to spur some local and national media discussion of the state’s wiretapping law. As I mentioned in my column last month, his arrest came at about the same time the Jack McKenna case broke nationally. McKenna, a student at the University of Maryland, was given an unprovoked beating by police during student celebrations after a basketball game last February. McKenna would probably still be facing criminal charges and the cops who beat him would likely still be on the beat were it not for several cell phone videos that captured his beating. According to Cassily’s interpretation of the law, if any of those cell phones were close enough to record audio of the beating, the people who shot the videos are felons.

Now we have another video of an arrest during the Preakness Stakes in which a Baltimore police officer can be heard telling the camera-holder, “Do me a favor and turn that off. It’s illegal to record anybody’s voice or anything else in the state of Maryland.”

That simply isn’t true, and it’s outrageous that Maryland law enforcement keeps perpetuating this myth. Perhaps that officer was merely misinformed. But Maryland police spokesmen and prosecutors are giving the impression that the state’s wiretapping law is ambiguous about recording on-duty police officers. It really isn’t. They’ve just chosen to interpret it that way, logic and common sense be damned.

Maryland is an all-parties-consent state, which means you have to get permission from all parties to a conversation before you can record it. But unlike Illinois and Massachusetts, Maryland’s law does include a privacy provision. That is, if the non-consenting party does not have a reasonable expectation of privacy with respect to the conversation that has been recorded, there is no violation of the law. State and federal courts across the country have determined that there is no reasonable expectation of privacy in public spaces. This is why someone can snap your photo in public without your consent.

The Graber-Uhler traffic stop would fall under the “oral communication” provision of the law. Here’s how the statute defines that term:

“Oral communication” means any conversation or words spoken to or by any person in private conversation.

Seems pretty clear, doesn’t it? Graber is now represented by the Maryland ACLU. Yesterday, I spoke with David Rocah, who is handling Graber’s case. “To charge Graber with violating the law, you would have to conclude that a police officer on a public road, wearing a badge and a uniform, performing his official duty, pulling someone over, somehow has a right to privacy when it comes to the conversation he has with the motorist,” Rocah says.

Not to mention the gun. Under Casilla’s view of Maryland law, not only is a cop permitted to pull a gun on you for a misdemeanor traffic offense, but his privacy rights protect you from documenting the encounter.

To date, no Maryland court has ruled that a police officer has a right to privacy in his on-duty interactions with the public. I’ve been researching this issue for a couple of months now, and to my knowledge no other state or federal court has, either. Massachusetts courts have upheld the convictions of people charged with recording cops under the state’s wiretapping laws, but Massachusetts does not have a “reasonable expectation of privacy” provision in its law. Illinois passed the toughest wiretapping law in the country specifically because the Illinois Supreme Court ruled that cops have no right to privacy in their interactions with the public. In response, the state legislature revoked the expectation of privacy provision from the wiretapping law for the express purpose of making it illegal to record cops on the job.

But in Maryland it actually gets even more absurd.

In 2000, Maryland Attorney General Joseph Curran, Jr. was asked to issue his opinion (PDF) on whether a plan by the Montgomery County Police Department to install recording devices on patrol officers would violate the wiretapping statute. To date, Curran’s opinion has not been modified or changed.

Curran determined that because protocol for the plan required officers to inform motorists they were being recorded, it did not. But Curran was also asked to determine what would happen if an officer inadvertently recorded someone without informing him first. Curran again said the officer would not have violated the statute. But a footnote to that opinion included the following language:

It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as “private conversations.”  For example, any driver pulled over by a uniformed officer in a traffic stop is acutely aware that his or her statements are being made to a police officer and, indeed, that they may be repeated as evidence in a courtroom.  It is difficult to characterize such a conversation as “private.”

I suspect most people would find this to be common sense. No one expects what they say to a cop during a traffic stop to be private. But when you combine that with how some Maryland cops and prosecutors are interpreting the law, such as in Graber’s case, you get a perverse result: When a cop pulls you over or detains you for questioning, he—the public servant with the badge and the gun—retains a right to privacy for the entire encounter. You don’t.

This does not sound like a serious interpretation of the law. But it’s apparently the interpretation among Maryland law enforcement officials. A cynic might conclude that law enforcement officials in Maryland are reacting to the McKenna embarrassment by threatening and cracking down on anyone who videotapes on-duty cops, and they’ll interpret the law in whatever way allows them to do so. At least until a court tells them otherwise.

Whatever their motivation, their legal justification is dubious. The McKenna case is a strong argument in favor of more citizen monitoring of on-duty police. The police not only beat the kid, they then lied about it in police reports. The security camera footage of McKenna’s beating, which is controlled by University of Maryland Campus POlice, mysteriously disappeared. The officer in charge of the camera system is married to one of the officers involved in the beating. Does anyone really think the charges against McKenna would have been dropped—and the officers who beat him suspended—if it weren’t for the cell phone videos?

There are strong constitutional arguments in favor of a basic right to record on-duty police officers. But the prosecution of Anthony Graber is also wrong by any reasonable interpretation of state law, and by any sane concept of good public policy. This is the state that’s home to the notorious Prince George’s County Police Department, for God’s sake—the department that spent five years under federal oversight because of the repeated use of excessive force among its officers.

Maryland Attorney General Doug Gansler should put an end to this faux ambiguity and declare that Marylanders who record on-duty cops are breaking no laws, much less committing felonies. He should also make it clear that so long as they don’t physically interfere with an arrest or police action, they also are at no risk of having their recording equipment confiscated or destroyed.

If he doesn’t, the state legislature should do it for him.

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73 Responses to “In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops”

  1. #1 |  Porcupine Picayune | 

    I believe it’s time for Federal Legislation to legalize the recording of Police and other Public Officials whilst they are on Public Property

    Fortunately – and amazingly – the law is on our side in Idaho, and the police acknowledge it [ http://www.porcupinepicayune.com/2010/05/boise-police-department-approves-boise.html ]

  2. #2 |  Dave Krueger | 

    Until recording devices became ubiquitous, cops have always operated under the assumption that, in any encounter with the public, they can freely define the truth any way it suits them. That power turned them into such habitual liars that they are practically paralyzed without it. Like the habitual liar, telling the truth is beyond their capacity. For them, it’s not a matter of having to correct their behavior in response to the new reality. It’s a matter of them having to outlaw the new reality because changing their behavior is simply out of the question.

    Law enforcement may be the only legal profession where lying, deceit, and trickery are actively taught, encouraged, and openly practiced. While most people have a conscience that alerts them with feelings of guilt when they lie, that inner voice has been drummed out of cops as a matter of policy. Although they are aware there are occasions that call for honesty, there is no downside to ignoring that fact. They lie and everyone they work with lies with impunity, so it’s normal. Add to that the authority they are used to wielding and the resultant sense of superiority that gives them and there’s just no way they are going to suddenly accept the idea that they are now suddenly answerable to the public instead of the other way around.

    In other words, this is going to get worse before it gets better.

  3. #3 |  Just Plain Brian | 

    “Perhaps that officer was merely misinformed. “

    Ignorance of the law is no excuse.

  4. #4 |  Greg N. | 

    The U.S. Supreme Court has already ruled that a dog sniff of a vehicle is not a “search” under the 4th Amendment because a motorist doesn’t have a “reasonable expectation of privacy” in odors emanating from a vehicle in public. It would be oddly inconsistent were the Court to simultaneously argue that police – public employees performing public duties – in the same stop, somehow have a privacy right motorists don’t have. What could be the reasoning?

    Ultimately this issue will have to be resolved by the Court, most likely. That’s a frightening thought.

  5. #5 |  PB | 

    Shouldn’t all of these state laws be extraneous anyway?
    Last time I checked, freedom of the press was still specifically protected in the Constitution.

  6. #6 |  Boyd Durkin | 

    You should have the right to record any and all interactions with any and all state officials at any and all times.

    Pretty damn simple to make that fucking law unambiguous.

    Wiretapping laws should be in place to protect the public from the state…and in some limited cases protecting the public from the public.

  7. #7 |  Boyd Durkin | 

    It would be oddly inconsistent (…of the Court)…

    Ha! SCOTUS rules in favor of the state (and against the people) at every opportunity. Consistency is not a factor.

    There is the ruling elite with special powers and rights. Then, there is the peasant class who are tied to the oar and bled daily. “All men are created equal”…except those that work for the state and unions.

  8. #8 |  JS | 

    The law is just paper, guns however seem more powerful. Guns win.

  9. #9 |  Mark R | 

    How did unions get into this?

    I just don’t get it. Unions have a history of opposing the same exactly institutions of power that libertarians are fighting right now. But still there is some kind of hate that oozes out from every corner of libertarian thought. Is it the success of their methods and the complacency of their contemporaries that treats unions as some kind of birthright?

    I don’t mean to derail the thread, but I’ve never understood the libertarian position on Unions. Isn’t the limited liability corporation a much more disruptive force in a truly free market than a union?

  10. #10 |  Dave Krueger | 

    I don’t have any problem with unions. I only have a problem with laws that force companies to permit them, employ them, finance them, and negotiate with them.

    I believe in employees’ rights as embodied in their right to quit and go elsewhere.

    There is almost nothing libertarian about labor unions as they exist today. They are state-sanctioned labor cartels that exist solely for the purpose of extorting wages and benefits from businesses. If unions had their way in the private sector, they would ultimately turn the entire country into one big Detroit. But, they way things are going, it looks more like they will probably destroy the country through the public sector first (probably turning it into one big Greece).

  11. #11 |  TomG | 

    Mark, I’d be likely to agree with you. LLCs are not really libertarian, and the modern unions are not as pro-worker as they want you to believe. The left-libertarians I have read tend to think of the IWW as not perfect but definitely better than the later unions that came to “accomodations” with those in power, both in corporate headquarters and the state.

  12. #12 |  cringing | 

    “The security camera footage of McKenna’s beating, which is controlled by University of Maryland Campus Police…”

    So the police want to say that it’s illegal to videotape things that the police are already videotaping — there are security cameras recording 24/7, but you can’t videotape people in the same places covered by those cameras, because that violates the privacy of people who have a right to not be videotaped.

    Only people in positions of authority can sustain arguments that are this stupid.

  13. #13 |  ClubMedSux | 

    I just don’t get it. Unions have a history of opposing the same exactly institutions of power that libertarians are fighting right now. But still there is some kind of hate that oozes out from every corner of libertarian thought.

    Mark- First of all, I’ll give the standard disclaimer that there’s no one unified theory of libertarianism so I’m only speaking for myself. Second, I appreciate that you asked for others’ rationale rather than simply decrying us as nutjobs.

    That being said, I would suggest there are two reasons for the anti-union sentiment here. The first isn’t so much anti-union in general as it is anti-police union. The police union has consistently placed protecting the jobs of its members ahead of protecting the constitutional rights of all citizens. I don’t care what the history of unions is; I find such actions to be odious.

    On a more general level, many libertarians object not to unions themselves but to the special protection afforded to them under the law. I have no problem with workers uniting; I do have a problem with labor laws that allow unions to intimidate others into joining (such as the card-check law endorsed by Obama). And if you object that corporations enjoy special protection under the law–which I’m sure you will given the mention of LLC’s–I would point out that most libertarians object to those laws as well.

    Now, I’m not sure what you mean when you say that “Unions have a history of opposing the same exactly institutions of power that libertarians are fighting right now.” Historically they fought against Big Business; now they mainly fight against governments as most unions are public sector. The problem, however, is that they’re not fighting against the government on behalf of the people. They’re fighting against the government on behalf of their members. Libertarians seek to reduce the power of government; unions seek to steer the power of government in their favor (often at the expense of the rest of the public). The end result is an uncomfortable relationship between unions and the government, which I see every day as a Chicagoan.

    On a personal note, my biggest issue with unions is that I don’t really think they represent the best interest of their workers. In a true market free of laws like the NLRA, workers could leave a union that stops serving their interests and join (or form) a different one. In reality, unions in concert with union-backed lawmakers have made it so that can’t happen. What we’ve seen in Detroit is a perfect example of what happens in such a scenario: union leaders didn’t suffer as the result of a terrible labor contract; the CEO’s of the Big Three didn’t suffer; most of the politicians involved didn’t suffer. The taxpayers suffer (footing the bill for a massive bail-out) and, more significantly, the laid-off auto workers suffer. There’s nothing libertarian about ANY of that.

  14. #14 |  El scorcho | 

    Cringing,

    Security camera’s don’t generally record sound which is the thing that gets most people in trouble. Wiretapping law does not generally forbid recording of images.

    I’m glad this is coming to a head and hopefully common sense will prevail and an overarching decision to follow the law will be made by the AG, courts or legislature soon.

    I have to disagree with anyone who thinks unions have ever resembled anything libertarian. Unions may have had the same enemies as libertarians, but it does not make them allies. Unions are full of people who do not want to better themselves, but want protection from others doing a better cheaper job than they will. Unions are the enemy of progress and improvement.

  15. #15 |  Paul | 

    While the idea that cops can tell you it’s illegal to record them is rediculous, I can’t get all that worked up about the kid on the motorcycle.

    First, the officer stopped him after he was running 80-100 mph up 95. It’s not like the cops just picked some kid for no reason. According to one (as far as I know not contested) version of events, the officer instructed the cyclist to turn off the bike, and he didn’t, and continued to rev the engine and roll back and forth. I’d pull my gun, too. Motorcycles can be weapons.

    So we’re not dealing with some innocent kid being picked on by the mean old police.

    Second, the officer asked the cyclist if his camera was on and if he was being recorded. The cyclist said no (as I recall, this was in the video on Youtube). That’s illegal, and rightly so. If the kid says “yes, you are being recorded,” I don’t think the officer has to give his consent given it’s a public interaction with no expectation of privacy. But when the kid says “no” he commits a fraud.

    Although it sounds like the way some in MD are interpreting all of this, someone stopped by a police officer could inform the officer that they don’t consent to any recording, and the officer would have to turn off a dash cam. Again, I don’t think that’s really the spirit of the law, though.

    (AFAK, the original intent of the law was to keep people from recording phone conversations without consent. I worked in a call center in MD and we recorded conversations, when we answered the phone, we had to get “Thank you for calling , my name is Paul, our conversation is being recorded, how can I help you?” out before the person calling talked.)

  16. #16 |  InMd | 

    Attorney General Gansler will do nothing of the sort. He made his career as a “hard ass” (i.e. civil liberties loathing) Montgomery County prosecutor. He was nearly disbarred in the late 90’s for violating Maryland’s rules of professional responsibility as they apply to prosecutors for constantly making public statements about ongoing cases which tended to heighten public outrage (a violation of the MD Rules of Professional Conduct). Included among these statements were threats to prosecute citizens who the state didn’t even have evidence against. Of course the Court of Appeals let him off under the dubious logic that it had yet to interpret the particular rules Gansler was charged with violating (most likely because those rules are pretty clear). Basically they said that he violated it but since there was no case he couldn’t have known he violated it. Point being the guy is no friend of the public when it comes to checking police power.

    Also regarding unions, I don’t think the libertarian position is anti-union per se. The rhetoric about them coming from the right borders on laughable to me at times since less than 10 percent of the private sector work force is unionized. The place where I think they really become problematic is public sector unions which is where they still hold considerable sway.

  17. #17 |  B8ovin | 

    Re: the University of Maryland beating “The officer in charge of the camera system is married to one of the officers involved in the beating.” and, “This is the state that’s home to the notorious Prince George’s County Police Department, for God’s sake…”

    The University of Maryland is in Prince George’s County.

  18. #18 |  Mark R | 

    @Paul

    No one is suggesting that this is some innocent grandmother. If we only defended the rights of people we like or who are completely innocent, we’d never protect anyone’s rights.

  19. #19 |  Cynical in CA | 

    The State as presently constituted cannot stand the light of day.

    When a citizen videotapes or audio records a police officer, in their mind, he/she is interfering with a police action.

    Expect this situation to fall the way of the State, with secret State police the logical end game. Qu’elle surprise.

  20. #20 |  Cynical in CA | 

    #8 | Mark R — “How did unions get into this? I just don’t get it. Unions have a history of opposing the same exactly institutions of power that libertarians are fighting right now.”

    Public employee unions don’t oppose institutions of power, Mark. They are institutions of power.

  21. #21 |  Mark R | 

    “Unions are full of people who do not want to better themselves, but want protection from others doing a better cheaper job than they will. Unions are the enemy of progress and improvement.”

    That’s an incredibly broad brush you’re painting with. So you’d contend that Unions haven’t advanced the progress of the common person or of society at all? Weekends, employer liability for worker safety, 40 hour work weeks, and eliminating child labor were the product of enlightened LLC magnanimity?

  22. #22 |  pedant | 

    Qu’elle surprise.

    Non.

  23. #23 |  Mark R | 

    “Public employee unions don’t oppose institutions of power, Mark.”

    We’re not in disagreement. I would completely agree that unions have become a negative force in the free market, and that they prevent the free market from operating optimally and can create very frustrating impediments to change and progress.

    But considering the distortion in the free market created by the monarchist LLC and the existence of direct government employment, how could you not expect labor to attempt to level the playing field? Why is the onus on the Unions to reform before the LLC’s and the government?

  24. #24 |  RWW | 

    Weekends, employer liability for worker safety, 40 hour work weeks, and eliminating child labor…

    Most of those are complex issues, but “eliminating child labor” (by force) has certainly been an act of evil.

  25. #25 |  thehim | 

    Here in Seattle, it’s our local Fox affiliate who tries to hide the footage of police misconduct.

  26. #26 |  Paul2 | 

    Re: Paul

    “First, the officer stopped him after he was running 80-100 mph up 95. It’s not like the cops just picked some kid for no reason.”

    I think he topped out at maybe 80. I watched the whole video, and didn’t see speeds close to “100” (you can tell by how fast he is passing cars, which he does consistently through the video, at maybe 10 to 20 mph faster than (one supposes) cars driving at speed limit.

    “According to one (as far as I know not contested) version of events, the officer instructed the cyclist to turn off the bike, and he didn’t, and continued to rev the engine and roll back and forth. I’d pull my gun, too. Motorcycles can be weapons.”

    Hogwash. The cop gets out of the car with the gun drawn. It is in the video. The video doesn’t pick up any “reving” or rocking. AND there is a regular cop car behind the motorcycle.

    “Second, the officer asked the cyclist if his camera was on and if he was being recorded. The cyclist said no (as I recall, this was in the video on Youtube). That’s illegal, and rightly so. If the kid says “yes, you are being recorded,” I don’t think the officer has to give his consent given it’s a public interaction with no expectation of privacy. But when the kid says “no” he commits a fraud.”

    This isn’t true. I watched the video posted, and the cop doesn’t ask any such thing. Furthermore, you are not required by law to tell the truth. You are not guilty of fraud if you tell a lie, if what you are doing is not against the law. In other words, if you lie to steal money, that is fraud. If someone asks you how tall you are, and you add a few inches, that is not fraud. In the first case, you are stealing money by lying, and that is fraud because stealing money is against the law. The latter is a lie, but it is not against the law to misrepresent your height, so it is not fraud. Not legally speaking.

    “Although it sounds like the way some in MD are interpreting all of this, someone stopped by a police officer could inform the officer that they don’t consent to any recording, and the officer would have to turn off a dash cam. Again, I don’t think that’s really the spirit of the law, though.”

    Not true. As courts have held, even if you do not want to be recorded, you can be if you are in a public space with no expectation of privacy, in MD. Other states can have different rules. Video is always legal, audio is covered by wiretap laws.

    “(AFAK, the original intent of the law was to keep people from recording phone conversations without consent. I worked in a call center in MD and we recorded conversations, when we answered the phone, we had to get “Thank you for calling , my name is Paul, our conversation is being recorded, how can I help you?” out before the person calling talked.)”

    That is correct. You just are not correct about many issues around this particular case.

  27. #27 |  Mark R | 

    @Clubmed

    Thanks for the thoughtful reply clubmed. I don’t mean to keep harping on this, just that on the off chance that tomorrow we wake up to a new libertarian order, the LLC isn’t thought of as some kind of free market invention.

  28. #28 |  ClassAction | 

    #14:

    “If the kid says “yes, you are being recorded,” I don’t think the officer has to give his consent given it’s a public interaction with no expectation of privacy. But when the kid says “no” he commits a fraud.”

    Um… no. It’s not “fraud” at all. It was probably a lie, but lying is not by itself illegal. You have an absolute right to lie about many things in many circumstances. In some cases, lying is even the appropriate thing to do. When you are a public official, acting in your official capacity, in public, you have no reasonable expectation of privacy. It doesn’t matter whether you are being recorded or not, because whether or not you are being recorded should have __absolutely no impact on your behavior__. You can’t reasonably rely on someone’s statement that they are not videotaping you in order to determine whether or not you should engage in some kind of misconduct, because the misconduct is itself wrong.

  29. #29 |  Cornellian | 

    Sorry for the thread jack, but there’s an excellent article on police abuse of civil forfeiture laws in the May 29 issue of The Economist. See page 36 “A truck in the dock.”

  30. #30 |  CharlesWT | 

    @#26: Thanks.

    A truck in the dock: How the police can seize your stuff when you have not been proven guilty of anything

  31. #31 |  Xenocles | 

    If [the police] have nothing to hide, what are [they] worried about?

  32. #32 |  Lew | 

    This is just more proof that the Bush/Cheney legacy just keeps on keepin on.

  33. #33 |  An open, if pre-informed, mind | 

    “eliminating child labor” (by force) has certainly been an act of evil

    Care to elaborate?

  34. #34 |  MHR | 

    The Judge should let them present their contention that the HUGE CAMERA mounted on his helmet constitutes an interception device as a wiretapping law would require.

    Then upon presentation of this bogus, perverted, treasonous lie of a charge, should arrest State’s Attorney Joseph Cassilly on contempt of court charges.

  35. #35 |  wflan | 

    I don’t understand how police have built a culture where they are the group expected less of, who don’t have to follow the rules they enforce, as opposed to being the group held to a higher standard…

    If you are behaving correctly, evidence of you doing so is neither beneficial nor harmful. If you intend to behave poorly or illegally, then evidence of such would be cause for concern, no? The anti-recording crusade really seems like a way to (further) legislate away police accountability.

  36. #36 |  Jason Campbell | 

    “First, the officer stopped him after he was running 80-100 mph up 95. It’s not like the cops just picked some kid for no reason. According to one (as far as I know not contested) version of events, the officer instructed the cyclist to turn off the bike, and he didn’t, and continued to rev the engine and roll back and forth. I’d pull my gun, too. Motorcycles can be weapons.

    So we’re not dealing with some innocent kid being picked on by the mean old police.”

    Ummm, horse shit.

    The only version of events you need is what was recorded. It’s a good thing he WAS recording since apparently a story that was made up by someone, most likely the PD, is contradicted by what was recorded.

    The kid starts backing his bike up when an apparent lunatic pulls around from behind him, in an unmarked car, with no lights, and blocks him. The lunatic then emerges from his car with a drawn gun and doesn’t identify himself immediately.

    I would have done the same thing. Hell I probably would have done the opposite and took off forwards. I’m not going to sit around when an idiot suffering from road rage comes at me with a gun.

    The bike is turned off IMMEDIATELY after the officer identifies himself, though ‘identifies’ is a strong word since we never see him show a badge of any sort.

    There is no rolling back and forth, no revving of the engine. That’s all made up from someone’s imagination. It is directly contradicted by the video.

    The fact that this kid is being charged with these crimes is ludicrous. Speeding, yeah it looks like he was speeding. A wheelie, yep, but well before he goes past the ‘cop’. There was absolutely no reason to draw that gun. The cop should be fired. Period.

  37. #37 |  John Holland | 

    Maryland law enforcement deserves a break. If you knew that your officers regularly abused their power, would you want then to be recorded?! If you’re crooked, you don’t want your behavior caught on tape. 

    It’s clear that most cops in Maryland are not “good” cops. If they were, why aren’t the bad cops in jail? So, if most of your cops are bad, the last thing you want is a videotape of your bad actions. 

    Who can blame them? These officers are just trying to protect themselves!

  38. #38 |  Helmut O' Hooligan | 

    #7 JS: “The law is just paper, guns however seem more powerful. Guns win.”

    “They got the guns, but we got the numbers…”
    – The Doors

  39. #39 |  Helmut O' Hooligan | 

    #24 Mark R: “I don’t mean to keep harping on this, just that on the off chance that tomorrow we wake up to a new libertarian order, the LLC isn’t thought of as some kind of free market invention.”

    Of course it’s not. Corporations are creations of the state. They are groups of people who receive special privileges from the state. And these groups seldom hestiate to turn down a favor from the state, no matter how much the executive class huffs and puffs about small government.

  40. #40 |  Someone Special | 

    At what point did the definition of “wiretapping” become so warped? Wire tapping is completely different than recording someone or general spying… It is intercepting a communication device to overhear conversations that are meant to be private. When two people are having a real-life conversation, the term “wire tapping” makes absolutely no sense whatsoever.

  41. #41 |  lessgov | 

    police and prosecutors have gotten a green light to abuse the american people from lawmakers with fascist proclivities. we are infested by unamerican vermin.

  42. #42 |  Jack McCauley | 

    #14

    You should go back and watch the video.

    There is no official cop to be seen in the initial part of the video. Most people don’t ride motorcycles and don’t realize it is very hard to see behind a motorcycle, even the ones with the best mirrors (and those aren’t sport bikes) have a huge blind spot directly behind them that you cannot see unless you turn your head around to look. It’s kind of like driving a car with no center rear view mirror — try it sometime and you’ll see what I mean.

    The first thing you see is a plain car drive up and nearly hit the motorcycle. As a motorcyclist, I can also tell you that drivers in cars can sometimes be unusually aggressive and angry towards motorcycles — I’ve had people intentionally and unintentionally try to run me off the road and had other scream and yell at me about how they were going to do me bodily harm after they failed to see me and almost hit me. You’re very unprotected and vulnerable on the bike, and interactions with irate drivers can be scary.

    What’s worse is, a plainclothes officer (meaning he looks like you and me) suddenly jumps out of the car with his weapon drawn. He doesn’t wait, he just immediately and aggressively gets out of the vehicle with what appears to be the intent to do bodily harm. The guy is backing up the bike at this point, which is not unreasonable considering that one, the car nearly hit him, two, the guy is getting out of the car, and three, he’s getting out of the car with a gun. He doesn’t “roll back and forth”, he’s trying his best to put distance between him and an irate motorist who STILL hasn’t identified himself as the police.

    The guy then orders him off the bike, but still hasn’t said he’s the police or produced a badge. I’d be frightened too, and no way in hell am I getting off the bike. Five seconds after he exits the vehicle and after he finally lays a hand on the bike, he manages to tell the guy he’s state police. Which at that point, the guy turns off the bike and gets off.

    I’m not going to defend his actions before the stop — the high speed and reckless riding were inappropriate and he deserved the tickets he got. However, that does not excuse the angry, unprofessional, and irrational judgement and decision making of the officer.

    Here, watch the video: http://www.youtube.com/watch?v=BHjjF55M8JQ

  43. #43 |  Jonny Law | 

    I am in complete AWE. I have used a recording device for years as a law enforcement officer. Charging a civilian for the same is complete hypocrisy. I would gladly testify in defense of this man, at my own expense. PERIOD.

    Truth digitized is truth immortalized.

  44. #44 |  Paul | 

    @ Mark –

    I’m not so sure his rights were violated. The reason I bring up the behavior of the cyclist is to make it clear I think the officer had a reason to draw his weapon. (If the version of events I described isn’t accurate, then my conclusion here might change).

    The recording is a separate issue, and as I mentioned, I think the cyclist committed fraud when he advised the officer he was not being recorded.

    Had he answered that question ‘yes’, or had the question not been asked the situation changes.

  45. #45 |  Paul | 

    Didn’t see the link in the last comment.

    Watched it. I’m on the fence on the weapon being drawn.

    I see he cut out the part where the cop asked about the recording.

  46. #46 |  Bob | 

    No, it matters not a whit whether he responded truthfully to the question “Are you recording”

    The law seems clear, you may only record if both parties consent or if there is no reasonable expectation of privacy.

    ‘Consent’ is not satisfied by being informed, and the cop has no reasonable expectation of privacy.

    Now, if the cop was talking to someone inside his car, with the windows up, he would have a reasonable expectation of privacy. As such, inquiring as to the status of the camera would be pertinent.

    There ARE questions this cop could ask that require a truthful response under the law, like “Do you have a Driver’s license” (Because he was riding a motor vehicle). But a non related question like “Is that camera running” does not warrant a response.

    Did the guy deserve a ticket? Oh hell yeah! Did he deserve to have his rights crushed and threatened with jail time for unrelated shit? Hell no!

  47. #47 |  pam | 

    Websters:

    fraud 1. a deliberate deception practiced so as to secure unfair or unlawful gain. 2. trickery. 3. a. one who defrauds: CHEAT. b. one who pretends to be what he or she is not: IMPOSTER

    Just looking at 1 alone, I’d say the cyclist was only trying to get a fair and lawful gain.
    2 & 3 seem to imply to the cop. Who’s the fraud?

  48. #48 |  ClassAction | 

    #34

    Paul, you don’t understand what “fraud” is. In order for there to be fraud, you have to lie to someone with the intent to induce them to act in a manner that would be appropriate to act if what you represented was true. That’s why the other person has to act in “reasonable reliance” of your representation.

    If you sell someone a fake Mickey Mantle rookie baseball card for the price of a real one by deceiving them as to its authenticity, that’s fraud.

    If, however, you tell your child’s babysitter that there are no “nanny cams” in the house, and you in fact have one in your bedroom and you catch them stealing your jewelry on it – that’s not fraud, because you can’t reasonably rely on someone’s representations because you want to engage in theft or other misconduct.

    Similarly, the police can’t reasonably rely on whether or not they are being videotaped to decide whether or not to engage in official misconduct, because that’s always wrong.

  49. #49 |  nickKage | 

    Radley is an anti union elitist :/

  50. #50 |  Big Chief | 

    If states don’t want LEOs taped, that tells me that are more interested in protecting police than civilians. That means it’s a state I don’t want to visit. If people are going boycott AZ they ought to add Maryland, Illinois, and Massachusetts to that list.

  51. #51 |  albatross | 

    I’m trying to work out what possible argument there could be for banning the audio recording of the police. I mean, I get the financial incentives to make it illegal to acquire evidence that lets you sue the city/county/state for brutality, but is there some argument that would make sense for forbidding this? I just can’t see one.

    It’s sort of like the pushback from the police and prosecutors about requiring videotaping of interrogations, or DNA tests on request for convicts challenging their convictions. The only arguments against it I can think of involve things like “we don’t want to get all our shoddy cases thrown out or overturned” or “we don’t want to be sued into bankruptcy when the video of how we got that confession comes out in court.”

  52. #52 |  Over the River | 

    It not only should be legal to video/audio record police activities, it should be required.

    While the number (as a percentage) of ‘wrongful’ activities by police may be slewed somewhat by this site*, it is clear they are doing harm to their profession by these (and many other) cases. The role of a police body should be to protect the public welfare. Cases like “SWAT Gone Wild”, misrepresentation of the law, and puppycide, turn the public off to what police offices should be doing.

    It should pain us all when we agree with posters who call for warning our children that “cops are bad”. That says far more about the police than the poster.

    *I don’t mean The Agitator is misrepresenting the numbers, it is more that we tend to see a higher number of stories about ‘bad’ cops, than ‘good’ cops. There is a good reason for that and I support the site for doing so.

  53. #53 |  SJE | 

    #42: good points. Basically, the motorcyclists is behaving as an ordinary person would if concerned that he is about to be harmed by someone who is not police. Sounds like too many tragedies from SWAT raids.

    And for those who think that unions got rid of child labor, you should read Charles Dickens, especially “Oliver Twist,” which stimulated the general societal condemnation of child exploitation. Child exploitation was outlawed at a time when unions were weak or even illegal.

  54. #54 |  SJE | 

    #52: Of course: stories like “area man was not killed today in a horrifying accident” or “student was not beaten by police” are not going to make the news. At the same time, we really do not know the real numbers of abuse, because the abusers cover their tracks.

  55. #55 |  Peter Ramins | 

    I can see “Student not beaten by police” as an Onion headline though.

    It would be really funny at first, but leave you angry.

  56. #56 |  albatross | 

    I think real-world versions of that story are extremely common, so common they’re not news. Otherwise, we’d all be scared to death of the cops all the time. Instead, most of the time, people being assholes to the cops simply get the ticket they might have talked their way out of, or get a “have a nice day sir” from a cop thinking “what an asshole.” But some fraction of the time, the cop realizes he can get away with beating the hell out of the guy who’s mouthing off to him, or can just pick some guy he doesn’t like the look of and use him to get even with life.

    We don’t know how often the cops misbehave, for a bunch of reasons. (Coverups, ambiguous evidence, criminals who are more concerned with getting out of jail time than suing for police brutality, etc.) But I’ve had maybe a dozen interactions with the cops at any significant level in my life, and they’ve never been worse than formally polite with me. Never. That’s what most people I know also have experienced. That’s just not consistent with most cops misbehaving most of the time.

  57. #57 |  SJE | 

    Albatross: I would agree that most cops don’t abuse, beat, kill, or steal from most people they encounter. Of course, if you were a black male in a rough neighborhood, your experience of police would be considerably more jaundiced: most black people I know have been given a hard time at least once for no reason.
    Nevertheless, the fact that most cops do not abuse, beat, kill or steal most people they encounter is insufficient reason to be alarmed at those who do. This is because (a) the cops that do this should not do so and (b) far too many cops, even if they do not abuse, beat etc, will cover for their buddies, and their union will and leaders will do everything possible to prevent accountability. Such corruption enables greater abuse and undermines the rule of law and society by destroying respect for authority in general.

    To put it in an entirely different way: to say that you have encountered police but have not been harmed is evidence that they can be trusted is like saying that because most people in Florida have not been eaten by alligators we should trust them enough to have an alligator as a family pet.

  58. #58 |  anarch | 

    @ Albatross #56 – Attributed to Pauline Kael in 1972: “How can Nixon have won? Nobody I know voted for him.”

  59. #59 |  Over the River | 

    Thank you for the follow-up to my #52.

    I wanted my point to be about police activity that should be brought to light. I do agree we will always see fewer stories about sunshine, lollipops, and (not-shot) puppy dog tails, regardless of the media.

    I feel one of the greatest values of this site, and Mr. Balko’s press appearances, is to educate the public (including law makers) that police activities like these do little to protect the public welfare, and actually harm the ability of LEO to gain public support for what they should be doing.

    I am old enough to remember when news was printed once a day and access to information was what someone allowed you to read. The Internet (and WWW) has allowed instant, far reaching coverage of things needing exposure. The Internet also allows for our comments and our spreading the word.

    You are all correct we need to see these stories; and shining a light on what could have been covered up is critical to our ability to participate in a democracy. We as a nation, are what we allow.

  60. #60 |  Yizmo Gizmo | 

    I got caught up in my own video-related brouhaha in 2002 in FLA.
    They wouldn’t release the video of the cop pulling me over.
    He had recently shot (and killed) someone who was unarmed, so PR was an issue.
    The atty was too chickenshit to get it. I said compel it then with a motion.
    She said no. I said I’d go to the bar. She said go ahead. I went to the bar with a complaint. She (eventually) got disbarred. Case fell apart when video
    demanded by new atty.
    I sued her (orig atty) in small claims and won.
    Shows ya how “in bed” some lawyers are with the system.

  61. #61 |  JS | 

    #60

    Wow Yizmo, See I wouldn’t have known to do all that crap. I get an education reading y’all on here.

  62. #62 |  Steve Verdon | 

    Porcupine Picayune,

    You are a fool to think that the feds are going to come down on the side of the citizen. I know its nice to pretend that there is pony somewhere inside government, but the reality is that it is filled up with nothing but power hungry parasites.

  63. #63 |  Revise the Maryland Wiretap Law? | Austrian Economics Blog | 

    […] Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and […]

  64. #64 |  Revise the Maryland Wiretap Law? | Think Tank West | 

    […] Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and […]

  65. #65 |  The Liberty Papers »Blog Archive » Ohio Supreme Court Speeding Ruling Lowers Burden of Proof and Opens the Door Civil Liberty Abuse by Police | 

    […] Ohio police can now pull over someone for no reason at all, lie about his or her rights, and threaten to write a speeding ticket if the motorist fails to ‘cooperate.’ Some motorists might think it wise to make audio and/or video recordings of any such interaction with the police to ensure such abuses are documented or prevented but as Radley Balko reports, this can have its own set of risks.** […]

  66. #66 |  jaycee | 

    Pimlico Policies from their website

    Items that are OK to bring into Pimlico’s Infield and Top of the Stretch on Preakness Day:

    Cellular Phones, Cameras (up to 35mm), Camcorders and Binoculars

    Items that are OK to bring into Pimlico’s Grandstand and Clubhouse on Black-Eyed Susan and Preakness Days:

    Cellular Phones, Cameras (up to 35mm), Camcorders and Binoculars.

    http://www.preakness.com/pimlicoMaps

    So a private property owner is noting in the private property owners rules that camcorders are allowed. So do the police think that paying ticket holders on private property are bringing the camcorders to just carry around.

  67. #67 |  Chattering Uncontrollably » Blog Archive » Nut jobs, Ohio being retarded, civil forfeiture, Maryland also being retarded. | 

    […] if you try to videotape an officer giving you a shady estimate of your driving speed, you can get sent to jail for 5 years. The cop can demand that you submit to a recording but not the other way around? Last I heard, […]

  68. #68 |  Downer § Unqualified Offerings | 

    […] about the camouflage uniforms, I’m also talking about the ones in squad cars.  Seeing people getting in trouble for taping police activities that take place in the open makes me despair for the future.  I assume that the restrictions on taping cops will only get more […]

  69. #69 |  Maryland cops trying to suppress evidence in their dealings with the public « HCS and Gen’s Place | 

    […] In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recor…. Filed under Anti-Americanism, New World Order Comment (RSS)  |  Trackback  |  Permalink […]

  70. #70 |  Valor Devalued | Truth and Justice For All | 

    […] exception to the law. Radley Balko, whose The Agitator blog I follow regularly, has now taken on the Maryland situation in light of some citizen-cop confrontations there, one of which appears on the brink of a gross […]

  71. #71 |  Maryland Attorney General Sides with Anthony Graber | Think Tank West | 

    […] opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the […]

  72. #72 |  keith goodwin | 

    if i see the police doind a wrongfull act ima still record it for proof in court. i have rights to do so. the police uses this method all the time. if they try to lock me up for that im sure my lawyer and i will get paid. this is america the land of te free. also im tired of or crooked government officials and cops.

  73. #73 |  In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops « My Rights in the USA | 

    […] http://www.theagitator.com/2010/05/29/in-spite-of-state-law-maryland-law-enforcement-officials-still… Share this:TwitterFacebookLike this:LikeBe the first to like this post. Categories: Photography, Police Comments (0) Trackbacks (0) Leave a comment Trackback […]

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