Caught on tape

Our view: There can be no expectation of privacy for police acting in their official capacity

September 29, 2010

As sworn officers of the law, police have every right to expect respectful compliance with their orders in the discharge of their official duties. What they have no right to expect is that their interactions with the public in that capacity should remain hidden from public view in public places.

That principle was reaffirmed Monday when Harford County Circuit Court Judge Emory A. Plitt Jr. ruled that police and prosecutors were wrong to charge a man for taping his own traffic stop and posting it on the Internet. In throwing out the charge, Judge Plitt reminded everyone that police officers are first of all public officials, and as such they have no expectation of privacy when performing their official duties.

Anthony Graber was zipping through traffic along I-95 in March when a plainclothes trooper in an unmarked car pulled him over for speeding and other violations. Unbeknownst to the officer, Mr. Graber was recording the incident with a video camera mounted on his helmet.

The snippet of video appeared on YouTube showing the officer emerging from his car with gun in hand, ordering Mr. Graber off his bike. But after the tape was posted online, authorities raided Mr. Graber's home, seized his cameras and computers and charged him with violating Maryland's anti-wiretapping law, which makes it a crime to record conversations without consent.

That law, originally designed to prevent people from breaking into phone lines to eavesdrop on private conversations, was drafted long before the invention of cell phone cameras and other high-tech devices. But Maryland police have used it repeatedly to prevent people from videotaping crime scenes, recording officers' activities or snapping anything else they deem objectionable. In recent years, police too often have interpreted the law to mean that it's illegal to record anyone or anything without the subject's permission.

That makes no sense, as Judge Plitt pointed out in dismissing the charge against Mr. Graber. Citing the explosive growth in communications technology that has produced a vast array of new recording instruments — from iPhones and BlackBerrys to networked surveillance cameras that keep watch over whole city blocks — the judge even suggested that there may be virtually no public space in which people can reasonably expect their actions to remain private.

When such people happen to be police, the expectation of privacy shrinks even further. As officials accountable to the public, officers should assume they are being watched and recorded — as indeed they have been in a number of highly publicized incidents that showed them behaving badly. No one would ever have witnessed the beating of Rodney King by Los Angeles police, the unprovoked attack on a University of Maryland College Park student by Prince George's County officers or the out-of-control verbal assault on a teenage skateboarder by a Baltimore patrolman at the Inner Harbor if those incidents hadn't been recorded by concerned citizens.

It's highly unlikely that any of those officers would ever have been called to account, either. An attorney for the American Civil Liberties Union, which defended Mr. Graber in court, rightly praised Judge Plitt's ruling for putting police on notice that "it simply is not a crime to tape a police officer or any other public official engaged in the public performance of their duties."

Harford County officials raised a number of hypothetical cases in which the videotaping of officers could lead to bad consequences, such as the videotaping of an officer taking an injured person's medical history or of an officer talking to potential witnesses to a gang shooting. First of all, officers probably should seek to avoid having such sensitive conversations within earshot of the public, video cameras or no. And second, no such circumstance applied to this case or to others in which police have recently objected to videotaping. The common thread is the police's desire to protect themselves from scrutiny, not to protect the privacy of witnesses.

When police and other officials leave work and return to their homes at day's end, they have as much right as anyone else to privacy. But when they act in their official capacity in the public arena, they surely would be wise to remind themselves that anywhere and at any time, the public to which they are accountable may be watching and taking note.

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