While police and prosecutors have encouraged the growth of a surveillance state, they don’t seem so enthusiastic about the growth of a surveillance citizenry. Maryland and other states have recently seen privacy laws invoked to squelch the unauthorized recording of public officers performing public duties in public areas. Until courts put an end to those bogus claims, we should make sure that police officers know that we may monitor traffic stops to protect our rights; I below offer a bumper sticker and magnetic door sign that ought to help on that front.
Radley Balko recently reported on the latest attempt to use privacy laws to punish citizens for recording police misconduct. In this case, Anthony Graber was arrested for posting on YouTube a video he’d captured on an un-uniformed Maryland state trooper, driving an unmarked car, pulling over and rushing at Graber with a drawn handgun. Soon after Graber posted the video, he was charged for violating the Maryland Wiretapping and Electronic Surveillance Act, Md. Code Ann., Cts. & Jud. Proc. § 10-401 et seq. (2010), which basically outlaws secretly recording a private conversation.
Maryland’s police must be feeling a bit testy, these days, about getting recorded on-the-job by uppity citizens. Earlier this spring, an inconvenient video of the beating of Jack McKenna put the lie to the claims of Maryland police that McKenna had provoked the incident by attacking the officers and their horses. State and federal officials have since launched “excessive force” inquiries.
Did that video violate the privacy of the three officers, clad in riot gear and swinging batons, who surrounded and beat the unarmed McKenna? No. Neither did the video that Graber shot of the Maryland trooper strutting towards him with a drawn handgun. Courts have already explained that wrongs under the Maryland Wiretapping and Electronic Surveillance Act require a showing that someone’s reasonable expectation of privacy has suffered violation ( see Fearnow v. C & P Tel. Co., 104 Md. App. 1, 655 A.2d 1 (1995), rev’d on other grounds, 342 Md. 363, 676 A.2d 65 (1996)), and no officer can have a reasonable expectation of privacy while on a public street, performing public duties. Continue reading →
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