Citing a 2,000-year-old Roman quote, "Who will watch the watchers?" a Harford County judge skeptically questioned prosecutors Friday pressing criminal charges against a motorcyclist for recording his traffic stop and posting the video on the Internet.
Circuit Judge Emory A. Plitt Jr. said he would issue a written ruling shortly as to whether the case against Anthony Graber can proceed to trial Oct. 12, but he acknowledged that appeals courts have not ruled on the issue and that "we are on unplowed ground."
The judge referenced the videotaped beating of Rodney King in Los Angeles, the proliferation of surveillance cameras and the ease with which virtually anybody can quickly snap pictures and record events and self-publish with a click of a button.
Harford County State's Attorney Joseph I. Cassilly has already gone on a radio station to debate the merits of the case with an attorney from the American Civil Liberties Union, which brought a team of high-powered lawyers to court on Friday. Among them was Joshua R. Treem, a former federal prosecutor who represented one of the D.C. snipers and currently represents a Baltimore city councilwoman under indictment.
The conflict arises from a March 5 stop by a plainclothes state trooper who pulled Graber over after watching him speed through traffic topping 100 mph and pass several cars on one wheel with his motorcycle. Graber had been wearing a camera attached to his helmet to record his ride.
Trooper J.D. Uhler jumped out of his unmarked car with his gun in his hand, but did not point it at Graber, as he ordered him to dismount, and he issued several citations.
Five days later, after seeing the encounter —video and audio — posted on YouTube, state police obtained a search warrant and raided Graber's house. They seized his cameras and computers, and prosecutors later obtained a grand jury indictment charging the 24-year-old Maryland Air National Guard staff sergeant with violating the state's wiretapping laws. He faces up to 16 years in prison and the loss of his engineering job if convicted of a felony.
Maryland law says that a person may not "willfully intercept … oral communications" without consent. It defines "oral communications" as "any conversation or words spoken to or by a person in private conversation."
The question before Plitt is whether a conversation between a police officer and a person he stops on the side of the road is private. Maryland's attorney general issued an opinion in July advising police agencies that people have a right to record officers and that most interactions between the police and the public can not be considered private.
Treem argued that the indictment violates Graber's constitutional right to free speech, and he said it's perfectly legal to capture audio recordings in places where people have no expectation of privacy. He said Uhler made a traffic stop "in a public place on a public highway. The police officer was doing his public job."
Assistant State's Attorney David W. Ryden countered that "just because you are in a public place doesn't mean your speech is public." He noted that police officers should be able to talk to witnesses, even on a public street, without fear that the conversation will be recorded by a bystander.
Ryden said he should be able to have a "whispered chat" with his co-counsel on a park bench outside the courtroom without fear, but Plitt quickly told him the analogy wasn't credible because the issue with Graber involves an officer conducting official business.
The judge noted that the trooper could use any part of the conversation with Graber in court, hardly making the discussion private. "The only difference here is the camera," Plitt said. When the prosecutor said police may be concerned, Plitt shot back, "What difference does it make what the police think?"
Another assistant state's attorney, Scott H. Lewis, argued that many police officers in Maryland have cameras mounted in their dashboards and that the law requires them to notify drivers that they are being recorded on traffic stops.
That provision is there, Lewis said, because the law recognizes the back-and-forth between officer and driver "as a private conversation." The same rules, he said, should apply to citizens who want to record police.
But Treem said the law requires officers only to inform the motorist of the camera and that the recording can continue even without the driver's consent. The judge agreed, noting the police now "have it two ways" — requiring consent to tape officers but not requiring consent for officers to tape citizens.
Plitt also agreed with Treem, who said prosecutors' use of the word "devices" to describe the cameras they seized was insufficient to distinguish between "a bug," which he said the wiretapping law was designed to address, and a cell phone camera that has multiple uses and is not specifically designed for "surreptitious recording."
After Treem complained about the vague references to technology in the indictment and search warrant — prosecutors used the word "devices" — Plitt interrupted, "You mean like not recognizing YouTube at all?" At another point, the judge reached into his own pocket, pulled out his cell phone and held it up to demonstrate how easy it is to be a videographer. "Thirty seconds, audio and video," the judge said.
He then recited the quote, which he said he found in a 1972 Maryland Court of Appeals case on whether the state could send people to psychiatric wards.
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