Saturday, May 29, 2010

On-Duty Officers Have Expectation of Privacy When They Pull You Over . . .

. . . but you don't. At least, that's the theory being proposed by Maryland officials. And that expectation of privacy is the difference between a legal videotape that embarrasses the police and a 5-year felony charge for illegal surveillance.

While Anthony Graber was videotaping (via helmet cam) his reckless motorcycle stunt driving, a man exits a vehicle, pulls out a gun, and rushes at him. As it turns out, that man was a plain-clothes police officer, though it takes him a while to identify himself.

If you think it seems like a bit of an overreaction to pull a gun during a traffic stop, so did Anthony. He posted his helmet-cam video to YouTube. In a normal world, perhaps the police would have used this as a teaching moment to instruct their officers in how not to make a traffic stop. In bizarro-world Maryland, however what the police do is raid your house at 6:45 in the morning, turn it upside down, and arrest you for felony eavesdropping.

The kicker? It's only illegal to record someone in Maryland if they have a reasonable expectation of privacy. Does a police officer have an expectation of privacy while on the job, with his gun drawn, in full view of the public, and with a conspicuous helmet-camera trained on him? I don't think you could find a single reasonable person who would argue that they do. In fact, the Maryland Attorney General has argued against the expectation of privacy when dealing with the police:
It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as “private conversations.” For example, any driver pulled over by a uniformed officer in a traffic stop is acutely aware that his or her statements are being made to a police officer and, indeed, that they may be repeated as evidence in a courtroom. It is difficult to characterize such a conversation as “private.”

So if the justice department of Maryland doesn't consider police encounters "private", why did they arrest him? The answer is simple: contempt of cop. You embarrass them, they put you in jail, by any means necessary. Even the judge who signed off on the illegal warrant to search the house declined to put his name on it for "privacy" reasons.

I could have been worse for the department, I suppose. The officer could have lied about drawing his gun, the police could had categorically denied everything, and then a video could have surfaced.

But it could have been worse for Anthony too. He could have been Jack McKenna, who was charged with disorderly conduct after police beat him during a post-game celebration. When the surveillance video of the park was requested, the camera pointed at the corner where Jack was beaten had mysteriously gone missing. Later, when the police did "find" the footage, another mysterious "technical error" had deleted a key two minutes of the beating. Coincidentally, the woman who heads campus surveillance happens to be married to one of the officers involved in the beating. Luckily for Jack, there were other recordings made by people at the scene, or it is likely he would now be in jail, since the police initially claimed that he had thrown things at the horse, and that he was injured when the horse "kicked" him.

Land of the free indeed.

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