Thursday, August 12, 2010

Don't Video Police Behaving Badly in Maryland: The Plight of Anthony Graber

Anthony Graber is a 25 year old staff sergeant with the Maryland National Guard. He loves to ride his Honda motorcycle so much that he often attaches a video camera to his helmet to record the trips. He was ticketed in early March for going 80 in a 65mph zone. He admits to it.

His problems began when he posted the video of the ticketing on YouTube a week later on March 10. The video shows him riding along and then stopping in traffic. Suddenly an unmarked, grey sedan swerves in front of him. A plain clothes state trooper jumps out of the car and jams a gun at Graber right up to the bike, ordering him to get off the bike. (Check YouTube).

Officer Joseph D. Uhler then holstered his gun and identified himself as “state police.”

Officer Uher’s conduct may well have crossed the line past overzealous into unreasonable and unprofessional behavior, if not into legal liability. Pulling a gun on a minor traffic infraction is not a generally accepted police practice today.

But that is nothing compared to the subsequent actions of the police and local prosecutor, Joseph I. Cassilly.

Graber is living with his wife and two children at his parent’s house in Abington, Maryland. Six police officers raided the house on April 8, wakening the family, and during the 90 minute search, seizing 4 computers, the camera, external hard drives and thumb drives.

Gruber was not then arrested because he was recovering from gall bladder surgery. He turned himself in a week later, and was rewarded with spending 26 hours in jail.

One might think this was a major drug bust.

Instead, the local prosecutor Cassilly had obtained a grand jury indictment alleging violations of the state wiretapping laws. Apparently the prosecutor is claiming that taping a law enforcement officer issuing a ticket in public is a major crime. If convicted on all the charges, Graber could face a prison term of 16 years.

The Maryland statute doesn’t cover videoing, but the recording of the audio. It was posting the video with audio of the officer that allegedly violated the law.

The Maryland statute requires all parties to consent to a recording of a conversation if there is “a reasonable expectation of privacy.”

Therein lies the rub. Courts have consistently held a police officer is a public figure, who has no expectation of privacy for public actions. That would clearly include an arrest or traffic ticketing. Incidentally, we, as private figures, do not have a reasonable expectancy of privacy with our public conduct.

Indeed, the regular cruisers of the Maryland Highway Patrol, as with many law enforcement agencies, have dashboard cameras on them to record traffic stops and arrests. We have no legal expectation of privacy in being taped under these circumstances.

But now, when this officer’s conduct is called into question, he claims his privacy has been invaded.

The vast majority of law enforcement officers act professionally, as evidenced by the dashboard video cameras. A relatively few step out of line and are captured on videos stepping out of line.

Cassilly argues that officers should be able to consider their on-duty conversations as private. The Maryland Attorney General in August 2000 and July 2010 legal opinions disagreeing with this argument, but it has not yet been judicially resolved in Maryland. Almost all appellate courts that have decided the issue have decided in favor of the releaser of the recordings.

In many states the radio conversations of police, such as to the dispatcher, are routinely recorded, and must be made available in litigation. No expectation of privacy can therefore exist for thrse conversations.

The conduct of the police and prosecutor raise serious First and Fourth Amendment issues.

Something else is present in the prosecution of Graber. Some law enforcement officials in Maryland are trying to discourage, through the full police powers of the state, the recording of police misconduct. The treatment of Graber is an attempt to send a message – You record us, and we will come down as hard as we can on you.

The attitude of Cassilly is as great an abuse of prosecutorial power as that as Mike Nifong with the Duke Lacrosse players.

We have all seen on TV, beginning with the Rodney King beating, videos of Law Enforcement officers apparently engaged in excessive force. Maryland had a similar episode last March after a Maryland-Duke basketball game. A student was beaten by three police officers. The student and a friend were accused by police of assaulting them. A video surfaced showing the students were innocent. The conduct of the officers is now under investigation.

Cell phones with camera and video capacity are ubiquitous today, precluding any expectancy of privacy.

My advice to Anthony Graber is that when he finally wins the case, he should bring a 42 U.S.C. §1983 case against the prosecutor and police for violation of his constitutional rights.

No comments: