July 30, 2010|By Justin Fenton, The Baltimore Sun
Marylanders appear to have the right to record interactions with police officers with devices such as video cameras and mobile phones, according to an opinion by the state attorney general's office. The advisory letter was issued as several people face or have been threatened with criminal charges for taping police.
It's unlikely that most interactions with police could be considered private, as some law enforcement agencies have interpreted the state's wiretapping act, wrote Assistant Attorney General Robert McDonald. The conclusion is based on prior rulings and opinions of courts in other states.
The American Civil Liberties Union of Maryland is representing a motorcyclist facing criminal charges in Harford County, one of at least two people who are being prosecuted there for recording police. State police raided the home of Anthony Graber in April after he posted a video of a traffic stop that he recorded with a helmet-mounted camera.
A 27-year-old woman also was charged after recording police in St. Mary's County; and a video made during an arrest at the Preakness and posted on YouTube includes a Baltimore officer who is overheard telling someone it is illegal to record police. The top prosecutor in St. Mary's County has since dropped the charge against the woman and joined the sheriff in acknowledging that people have a right to record police officers in public, according to news reports.
The advisory letter from the attorney general's office, dated July 7, was requested by Democratic and Republican state lawmakers, who asked if police were twisting the law and whether a legislative remedy was necessary. The opinion does not carry the weight of law but is meant to guide judges and state agencies.
The opinion "makes the point that there is no reasonable expectation of privacy when a police officer arrests a citizen, which makes it perfectly legal for a citizen to videotape or have an oral record of the arrest," said Del. Samuel I. Rosenberg, a Baltimore Democrat. "We want to know whether we have to change the law, and the answer seems to be no, we do not."
Harford County State's Attorney Joseph I. Cassilly, a Republican, who has brought the charges against the motorcyclist, said he thinks the wiretapping statute "criminalizes all sorts of conduct that government has no business regulating."
But he says that until the legislature makes long overdue changes to the law, his interpretation is literal and correct. For years, compelling audiotapes of criminal behavior have been routinely thrown out in court after defense attorneys cited the statute. The law can't be applied differently when police say they've been recorded without their consent, he said.
"I'm a civil libertarian kind of guy — yes, I'm in law enforcement, but give me fewer laws to enforce," Cassilly said. "I'm enforcing the law the way I think the law is written, and I'm happy that lots of people think the law needs to change. Great. I've been trying to make this point for 30 years."
David Rocah, a staff attorney with the Maryland ACLU, argues that a police officer stopping someone as part of his official duties has no expectation of privacy. Telling citizens they can't record, he said, improperly intimidates and chills attempts by people to hold law enforcement accountable.
Rocah said Cassilly was "abusing the law in a fashion and prosecuting Mr. Graber, who has committed no crime, to try to make a political point to get the legislature to change the law," which Rocah called "disgusting."
The state's wiretapping law was enacted in 1973, and since then the number of video and audio recordings made by both law enforcement agencies and citizens with hand-held and portable recording devices has exploded.
The Maryland statute is generally focused on matters of eavesdropping and says individuals may not "willfully intercept" any "oral communication," defined as "any conversation or words spoken to or by any person in private conversation." That has raised the question of what can be considered a private conversation.
"It is possible that a court might find that a particular encounter between an individual and a police officer involved a 'private conversation' and thus qualified as an 'oral communication' subject to the wiretap act," McDonald wrote. "This seems an unlikely conclusion as to the majority of encounters between police and citizens, particularly when they occur in a public place and involve the exercise of police powers."
State supreme courts in Illinois, New Jersey, Pennsylvania and Washington have upheld people's right to record police officers, though Illinois has since made it illegal to record anyone without their consent.
Maryland State Police record traffic stops themselves, via dashboard cameras required by a settlement in a 2003 racial profiling lawsuit. Rocah noted that should the state police face a lawsuit over the issue, the attorney general's office as state legal counsel would be called to defend their position.
