A Maryland judge has thrown out the first of three assault charges against two police officers who were caught on tape beating student John McKenna after a 2010 University of Maryland basketball game. The judge said "there was not enough evidence" to show the officers were engaged in first-degree assault. Second-degree assault and official misconduct charges remain.
We might argue about whether dropping those charges was the right call. What we know for certain is that before the tape surfaced, McKenna was the one charged with assaulting officers and a police horse. A good samaritan's cell phone video was the only thing standing between justice and the student being branded a criminal and thrown in jail.
The lesson should be clear. Citizens recording police encounters can reveal truths the police might prefer to hide. Evan Banks and I made a short video detailing the incident (among others) and the importance of protecting the right of bystanders to record the police.
Right to Record, a website devoted to the legal aspects of recording police officers, has the scoop. A panel of the First Circuit Court of Appeals affirmed the right of citizens to openly record police officers.
Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’” This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.
Read the whole thing. It provides a great discussion of the developing legal landscape, as well as some juicy details — like the fact that the attorney defending the statute for Massachusetts wrote her student note about how the Massachusetts wiretapping law is unconstitutional.
This decision is a big deal. The case comes from Massachusetts, one of two states (the other being Illinois) that continues to criminalize recording audio in public. It’s the latest in a string of victories against the Massachusetts wiretapping law that has become a useful tool for police who want to shield their actions from public scrutiny. A Massachusetts District Attorney recently refused to proceed with charges against a woman who recorded a vicious police beating, the D.A. declaring that police officers have no reasonable expectation of privacy while on duty and in public. Cop Block founders Pete Eyre and Adam Mueller were just acquitted on felony wiretapping charges for openly recording their encounter with police officers Massachusetts.
Moving on to the other holdout, Illinois, a woman who surreptitiously recorded Chicago Police Internal Affairs officers trying to persuade her not to file a sexual harassment complaint against police officers was acquitted of felony wiretapping charges. All of this sets the stage for the ACLU v. Alvarez, a lawsuit seeking to prevent future wiretapping charges against citizens who record on-duty police in public.
For more Cato work on the right to record police, take a look at this video and this post on Anthony Graber’s victory over abuse of the Maryland wiretapping statute. Speaking of which, Right to Record provides a page on the Maryland wiretapping statute, supplying the decision in Graber’s case for anyone who faces similar charges in the future.
The controversy over citizens getting arrested for recording on-duty law enforcement officers is prompting legislation. Connecticut has a two-party wiretap law (the audio of a recording is the justification for arrest) and is looking to pass a statute that specifically protects citizen journalism. This is preventive medicine more than anything — Maryland, Illinois, and Massachusetts have been the chief offenders — but a welcome development nonetheless.
The headset cameras I’ve written about are going to make their reality TV debut on Police POV on the TruTV network. The series will show footage of officers in Cincinnati, Chattanooga, and Fort Smith, Arkansas, all filmed with cameras mounted on the officers. The promotional footage shows at least one SWAT raid, proof positive that if you’re willing to strap on a helmet and 45 pounds of body armor and gear, a couple of extra pounds of camera aren’t a bridge too far, and ought to be required.
While Radley Balko has highlighted some shenanigans with police reality TV shows, creating a new normal where officers not only accept the prospect of being filmed on the job but embrace the technology for evidentiary and liability reasons is a step in the right direction. I make the case for more cameras in law enforcement operations with Radley and Clark Neilly in this video:
Maryland Circuit Court Judge Emory A Pitt, Jr. has ruled that motorcyclist and Maryland Air National Guardsman Anthony Graber did not violate the Maryland wiretapping statute when he recorded his traffic stop. The wiretap law does prohibit the recording of audio where there is a “reasonable expectation of privacy,” but Judge Pitt found that a police officer performing a traffic stop has no such expectation of privacy.
"Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public," the judge wrote. "When we exercise that power in public fora, we should not expect our actions to be shielded from public observation."
As I said in this op-ed, and as Clark Neily, Radley Balko and I pointed out in this video, Maryland police officers have used the “expectation of privacy” claim as a tool to deter anyone from recording on-duty police officers. In Anthony Graber’s case, a Maryland state trooper cut off Graber in an unmarked car and emerged from the driver’s side door in jeans and a gray pullover, gun drawn and badge not visible. It looked like a carjacking, and Graber was not charged for recording the encounter until he posted it on YouTube. The message to other Marylanders was clear: record the police, and you will face arrest and felony prosecution.
The prosecutor behind the case against Graber, Joseph Cassilly, spoke on a panel last week at Cato. He made clear that he disagreed with the structure of the Maryland wiretapping law, and was using the case to push the legislature toward a single-party consent wiretap statute. While I agree with a move to a single-party consent law, it is satisfying to see the charges against Anthony Graber reduced to the traffic violations that instigated the encounter in the first place.
The past six months have given us a number of police excesses caught on camera. Police officers savagely beat University of Maryland student John McKenna and filed false felony assault charges against him. Video of the event set the record straight. Prosecutors dropped the charges against McKenna, and four officers have been suspended and are facing state and federal investigations.
The McKenna case showed the value of video as an honest witness. Yet Maryland police officers continue to make the claim that the state wiretapping law forbids recording in public. I discuss this issue in a new Cato video, Cops on Camera, along with attorney Clark Neily of the Institute for Justice and Cato adjunct scholar Radley Balko.
We are hosting an event next Wednesday, September 22, on the right of citizens to record on-duty police, and the prosecutor in the high-profile Maryland wiretapping case against Anthony Graber will be on the panel. Registration available here.
You may remember the case of Anthony Graber, the Maryland motorcyclist charged with violating the state's wiretapping statute for recording his traffic stop and posting it on YouTube. I’ve said several times over the last few months that these charges are based on a misreading of the law; minus a “reasonable expectation of privacy,” recording an oral communication does not violate the wiretapping statute.
As it turns out, the Maryland Attorney General agrees.
The Maryland Attorney General has released an opinion advising a state legislator that, contrary to the claims of Harford County State’s Attorney Joseph Cassilly, a traffic stop is probably not an instance where a police officer can claim a reasonable expectation of privacy.
The AG’s opinion provides a thorough survey of Maryland’s and other states’ decisions on the issue, giving three possible interpretations of the wiretap statute as applied to a citizen recording a traffic stop.
First, a court might agree with the theory that police encounters are private conversations, but the AG found that this “seems an unlikely conclusion … particularly when they occur in a public place and involve the exercise of police powers.” That sounds familiar.
Second, a court might conclude that the Maryland statute forbids only the surreptitious recording of a police stop. The opinion deems this an unlikely outcome due to differences between the language of the Maryland law and the wiretapping statutes of Massachusetts and Illinois.
The opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the Maryland Attorney General’s previous opinions have said: the Maryland wiretap statute does not permit the prosecution of citizens for recording the actions of public officials in public places.
Graber’s court date is set for October. The AG’s opinion should halt his prosecution and further abuse of the Maryland wiretap statute.
The USA Today editorial board is criticizing the use of state wiretapping laws to prosecute citizens who tape on-duty police officers. I have written on this extensively: here, here, here and here. The editorial joins the Washington Examiner and Washington Post in this critique.
USA Today’s opposing view (presented by two AFL-CIO police union officials) provides this comment:
In today's environment, police officers have to assume that every action they take is captured on tape, somewhere. They must be comfortable that everything they say or do in the course of their duties may be shown on the 5 o'clock news.
Our problem is not so much with the videotaping as it is with the inability of those with no understanding of police work to clearly and objectively interpret what they see. Videotapes frequently do not show what occurred before or after the camera was on, and the viewer has no idea what may have triggered the incident or what transpired afterwards.
This is often true. The recordings that prompt public outcry are sometimes “gotcha” moments where the camera only captures the use of force with no context.
Here is an example from Maryland that shows officers arresting a woman during the Preakness Stakes. At the end of the video, an officer says to the person recording the arrest: “Do me a favor and turn that off. It’s illegal to videotape anybody’s voice or anything else, against the law in the state of Maryland.”
As the USA Today editorial notes, this is a misreading of Maryland law that is kept alive by the prosecution of Anthony Graber and others who record the police. My commentary on the issue is here. As Carlos Miller points out, Maryland prosecutors come to different conclusions about the scope of the state’s wiretap law.
The real problem (besides the fact that the officer is misstating the law to prevent public accountability) is that the officer felt it necessary to stop the filming in the first place. This arrest was justified. The woman bleeding on the floor assaulted another patron, and when two officers responded to the incident, she assaulted them as well. This was a justified and necessary arrest. Whether the level of force was justified is another question, and one that is harder to assess because there is no recording of it.
Here is the solution -- officers recording the incidents:
A handful of police departments already have their officers wearing video and audio recording devices. While I said a while ago that gun-mounted cameras are a good tool for police transparency and accountability, this head-mounted camera is a better option. It captures the prelude to the use of force, and doesn’t provide an incentive for the officer to draw his or her weapon sooner to get the event on film.
This is the future of American law enforcement. Departments will embrace this technology because it is a defensive measure against public outcry over the next “gotcha” video filmed with a cell phone and potential lawsuits. Law enforcement agencies will release their own footage of high-publicity events to show that their officers were complying with department guidelines on the use of force. The presence of a camera in an interaction between a cop and a citizen may also serve to keep behavior more civil since both parties know that the world is watching.
In 10 or 15 years, this technology will be ubiquitous just as police cruiser dashboard cameras are now, and law enforcement officers and the public will be better off for it.