Biker arrested for videotaping officer story updated

[ducatiz]

http://www.thenewspaper.com/news/32/3227.asp

Maryland Attorney General Upholds Right to Video Traffic Stops
Maryland attorney general rules that state police were wrong to charge motorist with felony for recording his traffic stop.

Making a recording of a police traffic stop is not a crime in the opinion of Maryland's attorney general. In a ruling issued last month from the state's top law enforcement office, Chief Counsel Robert N. McDonald found the legal grounds weak for felony wiretapping charges of the type brought against a motorcyclist who posted a video of himself being arrested on YouTube. Maryland State Police had taken advantage of ambiguity in the law to prosecute Anthony Graber, 25 for the April 13 recording.

"No appellate decision in Maryland specifically addresses the application of that law to recording of police activity," McDonald wrote in his opinion.

Graber had been stopped for speeding on Interstate 95. While driving an unmarked car in plain clothes, Maryland State Trooper Joseph David Uhler cut off Graber as he brought his motorcycle to a stop. Uhler then jumped out of his car, gun drawn, commanding, "Get off the motorcycle" before identifying himself. Graber had a camera on his helmet that recorded the entire incident, which he later posted on YouTube (view video). The sight of Uhler wielding his weapon in public over a traffic infraction drew a storm of criticism. Uhler responded by ordering his colleagues to raid Graber's residence and confiscate all of his computer equipment as evidence of wiretapping. By filing charges that could send Graber to prison for sixteen years, the state police wanted to send a clear message to anyone who might consider documenting police misconduct in the future.     

Under the interpretation of the state police and prosecutors, a police officer has an expectation of privacy while working on public streets. Ordinary citizens on those same streets, however, have no such expectation and are subjected to constant monitoring by the state's red light cameras, speed cameras and recently expanded automated license plate recognition systems. The attorney general's office examined the question of whether the conversation in a traffic stop constituted an "oral conversation" that is "intercepted" under the wiretap act if a citizen records the arrest. After considering a related attorney general ruling from 2000, McDonald ruled that there is no difference between a police officer and a citizen as far as the statute is concerned.

"The reasoning of that excerpt, which suggested that a police officer would not face prosecution or liability under the act for recording an arrest or traffic stop in a public place, would apply equally well to a private person involved in the same incident," McDonald wrote.

Several other states, with the exception of Massachusetts, have developed case law that clearly allows the recording of police traffic stops. The attorney general's ruling did not directly consider the details of the Graber case, but it concluded that the most likely outcome should it come to trial would be acquittal.

"A court could hold that a police stop of an individual necessarily is not a 'private conversation' and therefore does not involve an oral communication covered by the state wiretap act," McDonald ruled. "This conclusion would be consistent with the suggestion made in the 2000 opinion and with the holdings of the courts in most other states construing state eavesdropping statutes. Given the language of the Maryland statutes, this seems the most likely outcome in the case of a detention or arrest."

AG's opinion here: http://www.thenewspaper.com/rlc/docs/2010/md-youtube.pdf



My take:

Graber potentially has a lawsuit against Uhler for violating his civil rights in acting under color of law in issuing an arrest warrant and raiding his home for the videotaping. 


Pls keep comments civil. 

[Artful]

Thankfully there is still a shred of common sense and decency in this state. The girlfriend got two speed camera tickets and a red light violation in the mail last week. The speed tickets are on her, even if the speed limits are artificially low in my area, but in the redlight camera you can clearly see a box truck inches off her bumper that didn't brake in time, forcing her to run the light.

Obviously she's going to fight it in court, but the fact that you have to even show up for something that a live officer could see was the FAR safer option is absolutely infuriating.

Very tempted to brush up the marksmanship with the .22LR around here in the name of liberty...  

[Slide Panda]

I wondered how this one would go down. With the camera being in plain sight (mounted externally to a helmet) and the officer not identifying that he was and LEO for a several seconds, while displaying his firearm I figured the biker would have a case or two.

It's interesting to me, not being a law person, the differentiation between a police dash cam+mic set recording this incident and the fact that it was recorded by a citizen. 'Tiz, Stater any insights on this?

[ducatiz]

Dash cams are non-problematic as they are used in evidence collection and MOST do not record sound (which is the issue in this situation in MAryland -- NOT the video)


I was shocked when I first heard this story, given the asinine claim by the officer that it was a private conversation.  That being said, I think the AG's position is going to sway the court big time.

[Statler]

E'll let this thread keep going as it does directly relate to bikes.   Please follow ducatiz's lead and keep it civil.   

Artful, please leave off editorials like pinko state etc.  That type of political talk would get this thread locked elsewhere on the forum. 

I was also stunned at this story and figured it was one of those where there must be more to it that the news missed... Nope. 

[Artful]

Noted, I had to listen to the little woman gripe about speed/red light cameras all last night while trying to rebuild a Triumph rear caliper so I'm a touch feisty today.

There I Fixed It(tm)

[ducatiz]

E'll let this thread keep going as it does directly relate to bikes.   Please follow ducatiz's lead and keep it civil.   

Artful, please leave off editorials like pinko state etc.  That type of political talk would get this thread locked elsewhere on the forum. 

I was also stunned at this story and figured it was one of those where there must be more to it that the news missed... Nope. 

I'll lock it right away if it gets out of line. 

[tuanogus]

   

[The Mad King Pepe']

"Uhler responded by ordering his colleagues to raid Graber's residence and confiscate all of his computer equipment as evidence of wiretapping. By filing charges that could send Graber to prison for sixteen years, the state police wanted to send a clear message to anyone who might consider documenting police misconduct in the future."

This is the part that really ticks me off!

As if it weren't already bad enough that the cop lost his nerve, instead of realizing his mistake he makes things even worse by acting like a member of the Stalin's secret police.

I don't justify the biker in any way, but I can't stand cops on power drives, to me they're no better than bullies.

[Slide Panda]

Dash cams are non-problematic as they are used in evidence collection and MOST do not record sound (which is the issue in this situation in MAryland -- NOT the video)

A lot of jurisdictions have seem sound and video. Just look at all the police chase shows that are collections of dash footage. For the most part, there's audio to those.

[MongoReturns]

"Uhler responded by ordering his colleagues to raid Graber's residence and confiscate all of his computer equipment as evidence of wiretapping. By filing charges that could send Graber to prison for sixteen years, the state police wanted to send a clear message to anyone who might consider documenting police misconduct in the future."

I could be wrong, but this makes it seem like Uhler went to the barracks, rounded up his buddies, and raided the guys house.  I'm sure the proper channels were involved - warrant, etc. and all of that would have been fine due to the Md legal ambiguity.  I also think Uhler pulling his gun was fine (mind you I certainly don't like it!!!) as it would be a reasonable deterrent to the cyclist running, as has happened in Md before.  There may be a case for excessive force, but watching the video, the trooper seems fine after holstering his gun.  On the other hand it looks like a crazy guy waiving a gun, also which has happened in Md.

The McDonald memo is actually quite good, and I believe reaches the proper conclusion.

Side note:  utube "motorcyclist lowsides on mulholland in front of chp" is pretty funny.

[duccarlos]

So how does a dashboard cam setup for both video and audio difer from a go-pro on the helmet. I mean, they are both in plain sight, correct? Wou'd the police officer need to sign a waiver? Do the people that show up in those shows sign a waiver?

[Meerkat]

I find these constitutional issues quite fascinating, so I've been following this case for some time. I am not a lawyer, but here's my take on it. Part of the problem is that Maryland (unlike VA and DC) is a two-party consent state when it comes to recording. This means the the party recording and the recorded person must both consent to the recording being made. Maryland does not distinguish between police officers and private citizens, so police officers assume that they have a right to privacy and can refuse to be recorded without their consent. I think a large majority of two-party consent states distinguish PoPo from Jim Doe when it comes to this since they are a public entity and (at least in my opinion) don't have an expectation of privacy when doing their jobs.

So the moral of the story is...if you're gonna do something so stupid and tape the  who stops you, do it in DC or VA.

Attorney types feel free to correct me. My LO (law by osmosis) training is always open to updating.

[Raux]

hang on if MD is two party consent. then getting pulled over you can politely say, "i do not consent to being videotaped. please turn off the dash cam" ?

[Meerkat]

hang on if MD is two party consent. then getting pulled over you can politely say, "i do not consent to being videotaped. please turn off the dash cam" ?

Funny how you and I think alike when it comes to that, but do you really want to deal with the police without a camera running? yeah, me either; not all of them are a bad, but why take that chance. I've seen how they treat the students in College Park and want no part of that.

It will be interesting to see how this plays out if it continues in the courts.