You may recall the story in June about a motorist who videotaped a police officer writing him a ticket and posted the video on YouTube.  He was arrested and charged with violating Maryland’s wiretap law.  The prosecutor claimed that police exercising their public duty have an expectation of privacy.  The You Tuber was facing 16 years in prison.

Well, some activist judge dismissed the case.

Judge Emory A. Pitt Jr. had to decide whether police performing their duties have an expectation of privacy in public space. Pitt ruled that police can have no such expectation in their public, on-the-job communications.

Pitt wrote: "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. ‘Sed quis custodiet ipsos cutodes’ ("Who watches the watchmen?”)."

Graber was also charged with possessing a “device primarily useful for the purpose of the surreptitious interception of oral communications" — referring to the video camera on his helmet. The judge disagreed with the prosecutor that the helmet cam was illegal, and concluded the state’s argument would render illegal “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices."

Pitt’s decision is the first ruling in Maryland to address the legality of citizens taping police in the course of their duties. Because it is a circuit court ruling, it is not binding on other judges. However, unless it is appealed, said Graber’s attorney, David Rocah of the ACLU of Maryland, "it is likely to be the last word" on the matter and to be regarded as precedent by police.

No word yet on whether the state’s attorney will try to appeal the decision. Graber still faces traffic charges stemming from the incident.

No word on whether he got his four computers, external hard drives, thumb drives and a camera back that police confiscated. 

(Cross-posted on News Commonsense)

You may recall the story in June about a motorist who videotaped a police officer writing him a ticket and posted the video on YouTube.  He was arrested and charged with violating Maryland’s wiretap law.  The prosecutor claimed that police exercising their public duty have an expectation of privacy.  The You Tuber was facing 16 years in prison.

Well, some activist judge dismissed the case.

Judge Emory A. Pitt Jr. had to decide whether police performing their duties have an expectation of privacy in public space. Pitt ruled that police can have no such expectation in their public, on-the-job communications.

Pitt wrote: "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. ‘Sed quis custodiet ipsos cutodes’ ("Who watches the watchmen?”)."

Graber was also charged with possessing a “device primarily useful for the purpose of the surreptitious interception of oral communications" — referring to the video camera on his helmet. The judge disagreed with the prosecutor that the helmet cam was illegal, and concluded the state’s argument would render illegal “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices."

Pitt’s decision is the first ruling in Maryland to address the legality of citizens taping police in the course of their duties. Because it is a circuit court ruling, it is not binding on other judges. However, unless it is appealed, said Graber’s attorney, David Rocah of the ACLU of Maryland, "it is likely to be the last word" on the matter and to be regarded as precedent by police.

No word yet on whether the state’s attorney will try to appeal the decision. Graber still faces traffic charges stemming from the incident.

No word on whether he got his four computers, external hard drives, thumb drives and a camera back that police confiscated. 

(Cross-posted on Commonwealth Commonsense)

Following up my post last week about the Washington Post story of a man who videotaped his own arrest only to be charged with violating Maryland wiretap laws, the Poynter Institute has a column with advice for journalists and private citizens who videotape or sound record police, even if both the shooter and the police are on public property and the police officer is fulfilling his public duties.

There’s not much you can do to prevent the police retaliating, especially if you live in a state where the law requires both parties consent to a recoding, because you run afoul of the wiretap laws.

Gizmodo has more.

The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law – requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler’s license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

(Cross-posted on Commonwealth Commonsense)

Following up my post last week about the Washington Post story of a man who videotaped his own arrest only to be charged with violating Maryland wiretap laws, the Poynter Institute has a column with advice for journalists and private citizens who videotape or sound record police, even if both the shooter and the police are on public property and the police officer is fulfilling his public duties.

There’s not much you can do to prevent the police retaliating, especially if you live in a state where the law requires both parties consent to a recoding, because you run afoul of the wiretap laws.

Gizmodo has more.

The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law – requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler’s license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

(Cross-posted on News Commonsense)

This must be dubbed the “Rodney King Law.”

Apparently what a police officer does while on duty is a private act.  A guy posted a video of a state police officer writing him a ticket, one that he says he deserved.  But when he posted a video of the incident captured by a camera in his helmet, he found himself facing 16 years in prison.

On April 8, Graber was awakened by six officers raiding his parents’ home in Abingdon, Md., where he lived with his wife and two young children. He learned later that prosecutors had obtained a grand jury indictment alleging he had violated state wiretap laws by recording the trooper without his consent.

…Like 11 other states, Maryland requires all parties to consent before a recording might be made if a conversation takes place where there is a "reasonable expectation of privacy." (By contrast, Virginia and the District require one party’s consent to a recording.) But is there any expectation of privacy in a police stop? That’s where police and civil libertarians differ.

During a 90-minute search of Graber’s parents’ home, police confiscated four computers, the camera, external hard drives and thumb drives.

…The frequency of such arrests has picked up with the spread of portable video cameras and the proliferation of videos showing alleged police misconduct on the Web. [Miami journalist Carlos Miller, who runs the blog Photography Is Not a Crime] has documented eight arrests in the past few years, including one of an Oregon man who was arrested for using his cellphone camera to tape police he says were being rough with a friend and a Chicago artist who taped his arrest for selling $1 artwork. "Most of the people getting arrested are not criminals," Miller said. "It is just really a power trip on the side of police."

…"The question is: Is a police officer permitted to have a private conversation as part of their duty in responding to calls, or is everything a police officer does subject to being audio recorded?" [Harford prosecutor Joseph I.] Cassilly said.

Cassilly thinks officers should be able to consider their on-duty conversations to be private. Other officers share that view and have issued warnings to documentarians. Another video that surfaced on YouTube shows a Baltimore police officer at the Preakness warning a cameraman who was recording several other officers subduing a woman that such recordings are illegal.

State police spokesman Greg Shipley said that Uhler acted appropriately and that the officer never pointed his gun at Graber, putting it away as soon as he saw Graber comply with his commands.

Troopers are told to act as if they are being videorecorded, Shipley said. If they see someone videorecording them, they can ask them to stop but are to take no further action even if the cameraman continues, he said. If they think a private conversation is being illegally recorded, they are to contact the local state’s attorney’s office and let a prosecutor decide whether a violation occurred.

Now get this irony:

Complicating the issue: Maryland state troopers record traffic stops themselves, using dashboard cameras that were installed in all patrol cars as a result of a 2003 settlement with the state ACLU over racial profiling.

In an August 2000 legal opinion, the state’s attorney general wrote that "many encounters between uniformed police officers and citizens could hardly be characterized as ‘private conversations’ " and that "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."

But Cassilly says the use of dash cameras does not negate officers’ entitlement to privacy on the job. Police who use dash cameras must alert drivers that they are being taped, he said.

Yes, but the driver have the option to say “I don’t want to be videotaped”?

If the police officers in California had such a law, Rodney King would have been beaten near to death and no one would have known.