NMA Reboot: Recording Police—Legal but Perilous

This weekly post features recent news stories that highlight and update themes previously covered throughout NMA E-Newsletters and Alerts.

Editor’s Note: Two weeks ago in Arlington, Texas, police arrested three so-called “cop watchers” who were video recording police while they performed a traffic stop. Two of the observers were arrested for obstructing a highway and the third for not identifying himself. And while it is legal in all states to record police conducting their public duties, doing so can escalate already tense situations and citizens can quickly run afoul of local law enforcement, often with dramatic consequences. The 2010 NMA newsletter below describes one such case. For more on the do’s and don’ts of recording police, check out this NMA newsletter from 2012

NMA E-Newsletter: Issue #77

Anthony Graber, a Maryland Air National Guard staff sergeant, was stopped for exceeding the speed limit on I-95 outside of Baltimore by 15 mph. Graber was on his Honda motorcycle and, typical for most of his highway travels, he was recording his trip with a camera mounted on top of his helmet.

A Maryland state trooper in an unmarked car cut in front of Graber’s motorcycle to stop him, and unholstered his gun during the episode, perhaps because of the speed of travel and reports that Graber was seen popping a wheelie earlier. There were some tense moments, to be sure, but the situation de-escalated quickly and Staff Sergeant Graber accepted the speeding ticket without incident.

The firestorm began with Graber’s next step.

He posted a video of the encounter on YouTube. A few weeks later, police officers raided the home of Graber’s parents, where the National Guardsman lived with his young family. Maryland prosecutors alleged that state wiretap laws were violated when Graber recorded the traffic stop without the trooper’s consent. The police took several computers, the helmet camera, and other digital storage devices from the home. Graber spent 26 hours in jail after turning himself in, saying, “I just wanted to do the right thing.”

After being arraigned and being told that he faces up to 16 years in prison if convicted on all charges, Graber has declined to talk further in public about the incident.

Maryland’s wiretap law is over 30 years old, predating the last couple of generations of recording technology. In fact, the state law as written only pertains to audio recordings, but Maryland is one of 12 states that require consent by all parties before a conversation is recorded where there is a reasonable expectation of privacy.

“Reasonable expectation of privacy” will be a crucial element as the Graber case is adjudicated. This is not the first instance where prosecutors have raised the privacy issue with regard to recording actions of law enforcement officers, nor will it be the last as several legal issues must be addressed.

What is interesting is that the state’s argument in this case is in stark contrast to the typical prosecutorial claim that motorists who are photographed or videotaped by red-light/speed ticket cameras have no expectations of privacy when in public.

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