Maryland Judges Tosses the Felony Wiretapping Charges Against Anthony Graber

Monday, September 27th, 2010

Graber is the Maryland motorcyclist who had his home raided, was arrested, jailed, and charged with two felonies for recording his traffic stop and posting it to the Internet.

Here’s Harford County, Maryland Circuit Court Judge Emory A Pitt Jr.:

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”

This is great news, and it’s an encouragingly direct repudiation of Harford County DA Joseph Casilly.

But let’s also note the double standard, here. This is a question of whether Maryland law prohibits the audio recording of police in public spaces. If Anthony Graber had been wrong on the law, what harm would he have caused? He would have violated the privacy of an on-duty government official acting in his official capacity along a public highway. Yes, could make a pretty good case that Trooper David Uhler suffered no real harm at all.

Contrast that with the harm Casilly and the police department’s ignorance of the law inflicted on Graber. Graber and his parents were wrongly raided, based on a warrant obtained through an incorrect interpretation of the law. Graber was wrongly incarcerated overnight, then had to endure the stress and expense of felony charges hanging over him for several months.

Moreover, if Pitts had ruled the other way, Graber would have violated an ambiguous law, broadly interpreted in a way that most everyone else in the state (and for that matter the country), including the attorney general, believed to be incorrect. That is, he would have had no reason to believe that what he was doing was illegal.

Now you could perhaps argue that Casilly and the police department violated Maryland law unknowingly. But given their positions, that their responsibility as public officials is to enforce Maryland law, and that there isn’t a single court case that interpreted the Maryland statute in the way they did to justify their pursuit of Graber, I find it far more persuasive that they either knew they were breaking the law, that they were willfully ignorant of the law, or that they were pretty severely negligent in their duties.

Now consider the consequences under each scenario:

Had Graber unknowingly violated state law in a manner that caused very little actual harm to anyone else, he at the very least would have had felony record. He could have gone to prison for several years.

Instead, we have public officials who violated the law, who should have known they were violating the law, and who caused significant harm to someone else in the process.

So what will be their punishment?

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30 Responses to “Maryland Judges Tosses the Felony Wiretapping Charges Against Anthony Graber”

  1. #1 |  george cotz | 

    If your observation that the police action had no support under Maryland law, and it certainly didn’t have a basis in federal law, then Mr. Graber has a remedy by suing them under 42 USC 1983.

  2. #2 |  Yizmo Gizmo | 

    Doc No./Seq No.: 33/0
    File Date: 09/01/2010Close Date:
    Party Type: PlaintiffParty No.:1
    Document Name: State’s Motion for Protective Order

    I followed up to here, the last item on the docket.
    What are they “protecting,” exactly– their asses?

  3. #3 |  Lior | 

    george: First, Maryland claims to be a sovereign state. It should therefore regulate the behaviour of its own officers without needing the Federal government to do it. Second, you have neglected to note that US courts have rewritten 42 USC 1983.

    In the version of 1983 that the judges read there are two additional clauses that weren’t put in by Congress. The first categorically exempts prosecutors from the reach of 1983. The second says that, not only will every ambiguity in the law be resolved in the favour of the law-breaking officials, but that in fact they can’t be held liable unless the Supreme Court or the controlling circuit court has specifically said that the conduct is wrong. In other words, and as Radley points out, in the la-la land invented by the courts, 1983 cannot be used against this police officer unless a court has already ruled that an arrest under similar circumstances violates your civil rights — while mere mortals can be charged with breaking the law even if no court has previously found the conduct to be illegal (and note the circularity of the reasoning, especially given the recent SCOTUS ruling in Pearson v. Callahan) .

    How do I know that this re-reading of 1983 is an act of judicial legislation? Because the drafters of 1983 included a very specific and limited exception for prosecutors in certain circumstances (read the law, it’s very short!). Under normal methods of statutory interpretation this ought to make it clear that no other exception for prosecutors (let alone non-prosectors) was intended.

  4. #4 |  Waste93 | 

    Going to disagree with you only slightly here. Police are not lawyers and their knowledge of the law is generally derived by given a copy of the state and municipal ordinances. When they have a question they contact the DA and get their legal opinion. Add in that they had to get warrant that was signed off by a judge. I’m not absolving the PD. However I think far more ridicule should be directed at the DA and Judge with the fancy degrees that signed off on this and should have known better. But then again, they have absolute immunity so nothing will happen to them. You could file a bar complaint I guess but when lawyers keep check on lawyers even less gets done than when cops watch cops.

  5. #5 |  SJE | 

    “What will be their punishment?”

    Promotion, increased salary, AND getting to claim victimhood

  6. #6 |  Michael Chaney | 

    However I think far more ridicule should be directed at the DA and Judge with the fancy degrees that signed off on this and should have known better. But then again, they have absolute immunity so nothing will happen to them.

    Yep. It’s meaningless to make a judge have to sign a warrant unless the judge has some skin in the game. If he can face no negative consequences, then (short of morality) he has no reason to not simply sign every warrant that comes across his desk. Oddly, that describes pretty well what we see around these parts.

  7. #7 |  Howlin' Hobbit | 

    SJE: you left out the paid vacation while the “investigation” proceeds.

  8. #8 |  ThEDy | 

    Unfortunately, I think Cassily is running unopposed in the upcoming election.

  9. #9 |  Dave Krueger | 

    Graber and his parents were wrongly raided, based on a warrant obtained through an incorrect interpretation of the law. Graber was wrongly incarcerated overnight, then had to endure the stress and expense of felony charges hanging over him for several months.

    Yeah, yeah, yeah. But he was eventually cleared, so the system worked.

  10. #10 |  Dave Krueger | 

    So what will be their punishment?

    Hahahaha! Good one.

    That was a joke, right?

  11. #11 |  Michaelk42 | 

    But our favorite (alleged) cop caricature on the internet thinks the system worked:

    “I doubt the police knew about the video until it went viral. How could they charge him for a video they weren’t aware of?

    “Hmmm….so they charged him with a law that is on the books. He took it to court and a judge handed down a ruling that the law shouldn’t apply in this situation. Now there is a case law on this so it is unlikely that people will continue to be charged. Looks like the system worked.

    “It’s great that you guys can read the minds of the police and determine their motives. I wish I had that power.”

    http://carlosmiller.com/2010/09/27/maryland-judge-throws-out-wiretapping-charges-against-anthony-graber/#comment-36860

    So of course, no one needs punished. Uh-huh.

  12. #12 |  JS | 

    “So what will be their punishment?”

    Unaccountability

  13. #13 |  Jim | 

    You guys are being to hard on the nice police officers. I mean, they were only doing there jobs. First by pulling a gun on a traffic violation while not in uniform and not identifying themselves as a peace officer for like 10 or 15 seconds. I am sure Mr Graber knew he was facing a peace officer as soon as he saw the blue jeans and pistol.

    As for the arrest on the wiretapping charge, well, Mr Graber tried to undermine the peoples respect for law enforcement by posting that video. What were the nice police department suppose to do, just let him? No, that would be bad. So they found the wiretap law and twisted it so that they could arrest him for the public good. Maybe they were a bit misguided, but darn it, the public support for law has to come before individual rights, doesn’t it???

    So, the next time you get falsely arrested and maybe beaten, be glad there are no video cameras around that might show video that would hurt the support and respect that the police department demand. After all, if for the greater good.

  14. #14 |  Boyd Durkin | 

    ‘Sed quis custodiet ipsos cutodes’ (“Who watches the watchmen?”).”

    Nice to see the judge in the case get it right.

  15. #15 |  Steve Verdon | 

    Going to disagree with you only slightly here. Police are not lawyers and their knowledge of the law is generally derived by given a copy of the state and municipal ordinances.

    Right, but us civilians we have to know it as well as a lawyer knows it. This just underscores the level of bullshit that our legal system has sunk too.

  16. #16 |  John Thacker | 

    Weird thing about State’s Attorney Cassilly: He spoke at Cato last week on the subject and says that he thinks that that the law should be changed to clearly delineate the exception and in fact to make MD a one-party consent state.

    Not sure that I entirely buy his apparent argument that this was a useful test case to get the law changed, but a clear liberty-respecting law would be better than the status quo.

    More here.

  17. #17 |  Chris in AL | 

    Apparently the judge that issued the search warrant for Graber’s house also does not understand the law. Obviously he did not refuse the search warrant because the act for which they were searching for evidence is actually perfectly legal.

    I wonder what the ramifications would be if they had found some incriminating evidence of a different, unrelated crime on the guy’s computer? Inadmissible because it was obtained after arresting a man for a non-crime and during a search for evidence to support the charge of a non-crime?

  18. #18 |  Chris in AL | 

    OK, correct me if I am wrong here, but it was not the cop in the video that arrested him for the wiretapping charge. That did not come until later, after he posted it on youtube right?

    So this isn’t a case of a cop making an immediate mistaken interpretation of law. This was a police department with time to review the video as well as the law, consult with the DA’s office on whether a law was violated and make a fully informed decision. And then they had to get a warrant, allegedly from someone tasked with making sure the suspect’s rights were not violated.

    And they decided to harass a guy on something they could not really believe would ever hold up in court. It is good the charges were dropped, but this is no win for liberty. I am guessing everything went exactly as the cops thought it would.

  19. #19 |  Mannie | 

    #15 | Steve Verdon | September 28th, 2010 at 1:04 pm

    Right, but us civilians we have to know it as well as a lawyer knows it. This just underscores the level of bullshit that our legal system has sunk too.

    The cops are civilians, too. We are Citizens!

  20. #20 |  JS | 

    Chris in AL “Apparently the judge that issued the search warrant for Graber’s house also does not understand the law. Obviously he did not refuse the search warrant because the act for which they were searching for evidence is actually perfectly legal.”

    That’s the real scandal. Judges just accept that they are an appendage of the police and rubber stamp any damn thing the cops want without having to show the least probably cause. It undermines the whole purpose for having to get a warrant in the first place.

  21. #21 |  Grenadier1 | 

    “Yep. It’s meaningless to make a judge have to sign a warrant unless the judge has some skin in the game. If he can face no negative consequences, then (short of morality) he has no reason to not simply sign every warrant that comes across his desk. Oddly, that describes pretty well what we see around these parts”

    I will make a note of this and once the shooting stops we can fix this going forward.

  22. #22 |  Robert | 

    What happened to the motorcyclist illustrates the old saying:

    You might beat the rap, but you won’t beat the ride.

  23. #23 |  That Was Fun, Wasn’t It? | Truth and Justice For All | 

    […] analysis by Radley Balko on the Anthony Graber case and the judge dismissing the portion of the case relating to […]

  24. #24 |  Charges Dropped Against Man Who Recorded Traffic Stop : Dispatches from the Culture Wars | 

    […] has some good news. Anthony Graber, a Maryland man who was charged with felony wiretapping for recording a police […]

  25. #25 |  Charges Dropped Against Man Who Recorded Traffic Stop « Later On | 

    […] in Daily life, Government, Law at 9:52 am by LeisureGuy Randy Balko: Graber is the Maryland motorcyclist who had his home raided, was arrested, jailed, and charged […]

  26. #26 |  syd | 

    The judge’s last name is Plitt. The Baltimore Sun got it wrong originally.

    http://www.harfordcountymd.gov/directory/PhoneDeptDirectory.cfm?APull=Agency&IDAg=46

  27. #27 |  MadScientist | 

    Not to mention the old “ignorance of the law is no excuse for breaking the law” – it obviously doesn’t apply to the ignoramuses who are meant to enforce the law.

  28. #28 |  pam | 

    driving in circles gets boring. Cops look for more exciting things to do.

  29. #29 |  Defending People » Blawg Review #284 | 

    […] making us safer. Sometimes, as in the Anthony Graber cop-recording case, it fails—Radley Balko (The Agitator) and Mirriam Seddiq (Not Guilty) write separately about the court’s dismissal of the charge. […]

  30. #30 |  Rebel of the Week: RevisitedSilver Circle Political Blog | Silver Circle Political Blog | 

    […] 2 felony charges have both been dropped.  The Hartford County judge hearing the case has some game changing words to say about the incident: “Those of us who are public officials and are entrusted with the […]

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