Judge Rules Man Within Rights to Record Traffic Stop

(POLICE LINK)   HARFORD COUNTY, MD – In a decision that could make it easier for citizens to record police officers in Maryland, a Harford County judge ruled Monday that state police and prosecutors were wrong to arrest and charge a man for taping his own traffic stop and posting it on the Internet.

Circuit Court Judge Emory A. Plitt Jr.‘s ruling helps clarify the state’s wire tap law and makes it clear that police officers enjoy little expectation of privacy as they perform their duties.

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” Plitt wrote. “When we exercise that power in a public forum, we should not expect our activity to be shielded from public scrutiny.”

Plitt threw out four counts of the grand jury indictment against Anthony Graber dealing with the recordings he made with a helmet-mounted camera and posted to YouTube after he was stopped by a trooper in an unmarked car on an Interstate 95 off-ramp in March.

“This is one of the best days in my life that I’ve ever had,” Graber said Monday evening. “It’s such a huge relief, I can’t even explain.” The judge left intact only traffic violations that include speeding and reckless and negligent driving.

Plitt cited the videotaped recording of the Rodney King beating in Los Angeles and the explosion of “rapid fire information technology” to note that virtually anyone in a public place should expect their actions could be recorded and broadcast.

The judge wrote that Graber’s encounter “took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.”

The case was being closely watched to determine the limits of the state’s wire tap law, which critics contend was written decades before video cameras fit inside cell phones — even before cell phones — and was designed to prevent people from breaking into phone lines and secretly recording conversations.

Plitt “makes it crystal clear that the conduct Anthony engaged in was not and could not be a crime,” said David Rocah, a staff attorney with the American Civil Liberties Union in Maryland, which defended Graber in court.

“I think it means that police officers around the state are on notice that it simply is not a crime to tape a police officer or any other public official engaged in the public performance of their duties,” Rocah said.

But Harford County State’s Attorney Joseph I. Cassilly said the ruling “will make it more difficult for the police to do their jobs” and warned that people armed with cameras might soon point their lenses at car accident scenes “and eavesdrop as police take medical history” from patients. Cassilly could appeal, but said on Monday that he had not yet read the judge’s ruling.

The video that Graber posted online showing the plainclothes trooper, J.D. Uhler, jumping from his sedan with his gun drawn quickly became a Web sensation. The trooper had pursued Graber, alleging he was recklessly speeding on the highway and passing cars on one wheel.

Uhler issued the 24-year-old Maryland Air National Guard sergeant several traffic citations and let him go. But after Graber posted the video, troopers obtained a warrant, raided Graber’s Abingdon house and seized his equipment.

If he had been convicted, Graber faced 16 years in prison, the loss of his job as a consultant for a defense contractor and his government security clearance.

Hours after the ruling, Graber said that it was “very unfortunate that I had to go through all this.” He did not dispute he was driving fast on his 2008 Honda CR-V motorcycle while testing the $300 helmet cam he had just purchased. But he denied accusations from prosecutors that he purposely goaded police to pull him over so he could record the confrontation.

“How could I entice a police officer to pull me over when he was undercover and in plainclothes?” Graber said. “I wasn’t trying to record myself doing anything illegal.”

Graber said he has since sold the motorcycle for $5,000, far less than the $10,500 he says he paid for it a year earlier. He said he still owed several thousand dollars on the bike but took the loss. “I don’t want to ever have a motorcycle again,” he said.

Police officers throughout Maryland have cited the law to seize cameras of people at crime scenes or those who are recording their activities. A Baltimore police officer at the Preakness last year sternly told an amateur cameraman to stop recording the arrest of a woman, telling him, “It’s illegal to record anybody’s voice or anything else in the state of Maryland.”

Other recent cases include a teenager who captured a fierce berating by a Baltimore officer of a teenage skateboarder at the Inner Harbor, which cost the officer his job, and video of Prince George’s County tactical officers beating a College Park student during an out-of-control street celebration.

Maryland State Police spokesman Gregory M. Shipley said the troopers in the Graber case “did their job, followed the law and went to the state’s attorney for legal review and advice. … The case has gone to court and the judge has ruled and that’s the end of it.”

Maryland law says a person may not “willfully intercept … oral communications” without consent. It defines “oral communications” as “any conversation or words spoken to or by a person in private conversation.”

Maryland’s attorney general issued an opinion in July advising police agencies that people have a right to record officers and that most interactions between the police and the public cannot be considered private. The question before Plitt was whether a conversation between a police officer and a person he stops on the side of the road is private.

Prosecutors who argued the case Sept. 3 warned that ruling in Graber’s favor would invite myriad intrusions into what had been considered private conversations.

“Just because you are in a public place doesn’t mean your speech is public,” Assistant State’s Attorney David W. Ryden had said in court.

His boss, Cassilly, went a step further in an interview on Monday. “What about at gang shootings, as police try to interview witnesses?” the state’s attorney asked. “People can insist on trying to record that. Most gang shootings take place on public streets.”

But Rocah said the judge’s ruling does not prohibit police from keeping people at reasonable distances away from traffic accidents and other crime locations.

Pitt ruled, Rocah said, that “if you are close enough to be able to hear with your own ears, then you can record. If cops don’t want people to hear what they’re saying, they can keep people at suitable distances, which is what they do at any crime scene. Police have always done their job and they will continue to do their job. What they can’t do is make it a crime to record what you otherwise can hear.”

Plitt noted that the state’s appellate courts have not weighed in on this issue, so his ruling broke new ground. His opinion pulls in definitions of “wire tap” and “privacy” from previous court decisions and from dictionaries. During arguments in early September, the judge referenced a 2,000-year-old Roman quote, “Who will watch the watchers.”

On Monday, he noted the “march in time and changes in technology” that have “changed rapidly as to cost, size, weight, quality and storage systems.”


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