Crime Scenes: Can you legally record police?

Confusion over state's wiretap laws

May 20, 2010|By Peter Hermann, The Baltimore Sun

Maryland State Police charged a motorcyclist who recorded his traffic stop on a helmet cam with violating the state's wiretap law. A Baltimore police officer implored a bystander to stop filming an arrest at last weekend's Preakness.

"Do me a favor and take a walk. Now," the officer sternly told the amateur cameraman, who promptly posted his video on YouTube after watching officers wrestle with a bleeding woman on the floor of the race course's club level.

"Do me a favor and turn that off," the officer warned. "It's illegal to record anybody's voice or anything else in the state of Maryland."

Did the police officer give a lawful command?

Some authorities emphatically say yes.

Recording audio without consent "is a violation of the law. Period," Maryland State Police spokesman Gregory M. Shipley said this month when questioned about the motorcycle stop. Harford County State's Attorney Joseph I. Cassilly not only agrees, he's prosecuting two other people who recorded their traffic stops in Havre de Grace on cell-phone cameras.

Many lawyers emphatically say no.

They argue that the Maryland law on recording is nuanced. They say judges and lawmakers have carved out exceptions that make it legal to capture voices of unsuspecting people in public areas where there is no reasonable expectation of privacy.

Still others, including Baltimore police officials, say they're not so sure. Department spokesman Anthony Guglielmi said the officer at the Preakness was not giving an order but asking a favor. He noted that the person who took the video was not arrested or charged, nor was the camera confiscated.

"It's very complex, and we don't think it's been legally resolved yet," he said of the wiretap statute. "The whole question is for lawyers — and the officer is not a lawyer."

But as with anything and everything with the law, the wording and meaning of laws and judicial opinions can be endlessly parsed.

A close reading of Maryland law shows that a person may not "willfully intercept" what it calls "oral communications." It defines "oral communications" as "any conversation or words spoken to or by any person in private conversation."

Is a conversation between a police officer and a driver on a traffic stop private? Is the arrest at the Preakness private?

The Preakness is held at the privately owned Pimlico Race Course, but it's certainly a "public venue," and it would be difficult to argue privacy when surrounded by nearly 100,000 people at a nationally televised event.

David Rocah, a staff attorney with the American Civil Liberties Union in Maryland, argues that a police officer stopping someone as part of his official duties has no expectation of privacy, regardless of whether it occurs on a deserted Maryland roadway or the crowded grounds of Pimlico.

Police telling citizens they can't record, he said, citing the Baltimore officer at the Preakness, improperly intimidates and chills attempts by people to hold law enforcement accountable.

"That cop at the Preakness couldn't possibly have thought his arrest was a private act," Rocah said. "It simply wasn't. There is nothing the slightest bit illegal about a citizen taping it. What's improper is the cop telling people they can't do it." He said such demands "have the intimidating effect of wrongly telling citizens they don't have the right to record what police officers do."

Maryland Attorney General Douglas F. Gansler declined to comment, saying his input has not been sought by law enforcement officials. But his spokeswoman pointed to an opinion written by his predecessor, J. Joseph Curran Jr., as a blueprint for interpreting the state's wiretap law.

In 2000, Curran told Montgomery County police that it was legal for them to mount cameras in their police cars and record video and audio of traffic stops. Curran wrote that officers need to inform citizens being stopped that they are being recorded. He also said that audio picked up inadvertently would not violate the statute.

"Statements that a person knowingly exposes to the public are not made with a reasonable expectation of privacy and therefore are not protected as 'oral communications' under the state and federal wiretap laws," Curran wrote.

Police argue that cameras in their cruisers more often than not clear officers accused of wrongdoing by proving accusations are unfounded or exaggerated. But those same officers don't like it when citizens train cameras on them.

Guglielmi — who has said his agency is "focused on going after bad guys with guns" and not on "citizens with video cameras" — noted that his department did not charge a teen who recorded a city officer push and berate a 14-year-old skateboarder at the Inner Harbor in 2007. In fact, the officer was punished for using discourtesy and excessive force.

Cameras are now everywhere. The person who posted the video of the Preakness arrest labeled it "excessive force" — though the video doesn't support that, and police say the woman punched an officer in the face and the officer punched back before the camera started rolling.

But the video did expose this: The Preakness was a bit busier than police had initially let on. They had said officers and security ejected 23 patrons but had made no arrests. A spokesman said the woman in the video had been arrested after the races were over for the day.

Without the video, the public might never have learned of the incident.

peter.hermann@baltsun.com

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