The Maryland Public Policy Institute
OP-EDS
AUGUST 11, 2010
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"You can't tape me, but I can tape you." That seems to be the rule for police in Maryland when making traffic stops and arrests.
Witness Anthony Graber, a 25-year-old Abingdon resident who faces up to 16 years in prison for videotaping a state trooper. The officer pulled him over on I-95 for speeding on his motorcycle in March.
The tape, posted to YouTube, shows the officer jumping out of an unmarked car with gun drawn, yelling at Graber for a few seconds before identifying himself as a police officer. After the officer discovered the video, he received an arrest warrant for Graber for violating state wiretap law, which requires the consent of each individual involved in a private conversation prior to audiotaping it. The warrant led to police seizing his video camera and his family's computers.
In July, the attorney general's office released an opinion on the case favorable to Graber. But it is nonbinding, and the case filed against him by Maryland State Police and the Harford County state's attorney is set for trial in October.
Construing a traffic stop as a "private conversation" is a non sequitur. It's like saying that making out in a public park is a private act. And since when has I-95, one of the busiest thoroughfares in the country, been considered private? As one of Graber's attorneys, David Rocah of the ACLU, said, "It's a dangerous and ludicrous position to take."
Besides, in 2000 then-Attorney General J. Joseph Curran made the law clear. He was asked by the chief of police of Montgomery County to determine if a police officer violated state wiretap laws by inadvertently audiotaping a traffic stop in addition to videotaping it, which is normal practice.
Curran said most conversations between police officers and motorists could not be considered private under state law because "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, may be repeated as evidence in a courtroom."
If that is true, shouldn't the same rules apply for citizens taping police officers during a traffic stop? Robert McDonald, the chief counsel, opinions and advice, for Attorney General Doug Gansler's office, thinks so. He said Curran's ruling and the findings of other state courts analyzing similar laws make it seem likely that a traffic stop will not be considered a situation generating an expectation of privacy in his July opinion.
But even if the wiretap law applies, there are bigger issues to address, as Matthew Esworthy, a partner at Shapiro Sher Guinot & Sandler in Baltimore, said: "Assuming the Act applies, the next question will be does this violate Graber's rights under the First Amendment of the U.S. Constitution and Articles 2 and 40 of the Maryland Declaration of Rights."
For all the reasons listed the Maryland State Police and the Harford County state's attorney should drop the case. Given that the state police only two years ago were caught putting nonviolent war protesters and peace activists under surveillance as terrorists, the case shows a pattern of subverting the law for their own purposes. The least state residents should be able to expect is equal treatment for themselves and police.
Marta Mossburg is a senior fellow at the Maryland Public Policy Institute. Contact her at mmossburg@mdpolicy.org.
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