Wiretap charges dropped against motorcyclist who videotaped cop

An update on a story blogged earlier here on Boing Boing by Beschizza. BB reader Alex says,

A judge in Harford County, MD, threw out felony charges against motorcyclist Anthony Graber for taping a policeman who stopped him using a helmet-mounted camera. Graber admits he was speeding and may have been riding recklessly when an officer in plain clothes and an unmarked car pulled in front of him, drew a gun and ordered him off his bike before identifying himself as police. However, under Maryland's law which makes it illegal to videotape a police officer, he faced 16 years in prison.

Baltimore Sun coverage here. (via BB Submitterator, thanks Phyrkrakr, Cowicide, and AlexG55)

Man faces jail for videotaping gun-waving cop

Boing Boing editor/partner and tech culture journalist Xeni Jardin hosts and produces Boing Boing's in-flight TV channel on Virgin America airlines (#10 on the dial), and writes about living with breast cancer. Diagnosed in 2011. @xeni on Twitter. email: xeni@boingboing.net.

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Baldhead

I’m thinking that even if the law cited is valid- that videotaping a police officer is illegal- I would also think that anything that officer does immediately prior to identifying themselves would still be legal to tape. Which would include the bit where an unidentified man jumps out of his car with a gun in hand- an act which surely is a violation of gun laws, and certainly of common sense. As was posted above, there are many people who would have shot this policeman in the time it took him to identify himself, and would not have been wrong to do so.
Phikus

It’s a sad sign of our times when any kind of recording or filming gets lumped under “wire-tapping”. I personally believe those who serve the public trust should be surveilled mandatorily 100% of the time while on duty, dumped to an independent server they have no access to.
bcsizemo

I watched the video….

And F that.

As soon as he cut me off I’d dumped the clutch and zoomed off.

Everyone is right, that cop is extremely lucky he didn’t get pinned to the car door by the bike. I know I felt uneasy just watching it.

I’m not condoning how the biker was driving, but I didn’t see an extremely aggressive driving style being presented by the biker. Alright he was speeding, but he really wasn’t weaving in and out of traffic. He slowed down as he approached cars, he didn’t zip right between them.

I’m gonna assume that was the cop behind him at the off ramp? (3 min mark in the video) If so, how about flashing some lights, something?!

I wonder if the cop would have had the same reaction to someone riding a Harley (or that type of bike) wearing all leather and looking a little more rough than our guy here?
jackdavinci

I’m confused about why someone in an unmarked car also has to be in plain clothes unless they are on a specific mission. If they caught someone randomly, it sounds like they must have been off duty.
Anonymous

“However, under Maryland’s law which makes it illegal to videotape a police officer, he faced 16 years in prison.”

That’s just it. It is NOT illegal to videotape a police officer in public, because he has no expectation of privacy. Those charges should never have been filed. This was not a good-faith interpretation of the wiretapping law.
doppeldude

I am an ex LEO, and crap like this is why I will not work in the field again. The department I worked for lost an off duty officer in a similar incident, the guy was in his personal car, saw a guy driving fast in a parking lot, he tore around and cut him off, then proceeded to jump out of his car, weapon in hand. The citizen he cut off had a CCW and shot the off duty officer dead, a shooting that was ruled self defense. Afterwards there was a lawsuit, which the department lost(I don’t know the details) As in the incident with the motorcycle there was no crime sufficient for a weapon to be drawn. The whole “you can’t videotape” issue is so ridiculous it’s hard to believe they attempted to go with it. If someone had cut me off and jumped out with a gun I would have shot him before he was halfway out his door.
- rebdav
  
  Thanks for this. So many cops could be great cops but the culture in many jurisdictions is very entrenched against professionalism when dealing with suspects and the public. The preference toward hiring from the military is a major part of the problem. You are starting with people who have already had shock and awe beaten into their heads from boot camp on. Shock and awe are a great tool when destroying an opposing army or suppressing a occupied population.
  There needs to be a long boot camp like reeducation system for anyone coming from the military to reprogram new officers to view civilians including suspects as people and not wartime enemies.
  The military mindset is for oppression not protecting and serving.
narddogz

Yes, you should be able to record police.

But this guy should never be able ride a motorbike again on the public streets. The motorcyclist just had his gun out too, a 400 pound missile traveling at 120 miles an hour that going through a windshield would do the same job as a cop’s bullet. Jerks like this spoil it for motorcyclists like myself who follow rules and try to keep the danger in hobby down to its lowest possible minimum.
- delt664
  
  There are already established penalties for driving a vehicle at 120 mph, and there are already established penalties for threatening somebody with a gun, and there are established police procedures for making traffic stops. Lets start with applying the rules we already have to everyone evenly.
Anonymous

Question: can anyone provide a rational reason why “videotaping” a police officer should be against the law?

Thanks.
- Anonymous
  
  It is not illegal to video tape ” a cop”. It is not illegal to video anyone that is in a public place or a private area where there is no expectation of privacy. It is illegal to record voice on anyone in Maryland without a warrant or consent. The law applies to everyone, police and non police alike recording police and non police alike. That is why when MSP stops you they have to tell you that the stop is being recorded. It is also why if you call MSP the line beeps and they have to tell you the line is being recorded.
- Grey Devil
  
  I’m paraphrasing from memory so some details might be wrong…
  
  From what i recall they slapped antiquated wiretapping laws on the motorist because the plain clothes officer was an undercover cop, and revealing the identity of these officers is frowned upon if not illegal.
  
  Still the wiretapping charges were BS, considering that he never identified himself initially. Plus how could he not see the large camera strapped to the guy’s helmet?
  - Anonymous
    
    IF that is true, then why did he stop the motorcyclist in the first place? I think someone who’s not only stupid enough possibly blow his cover for a meaningless traffic stop but also aggressive enough to ready his sidearm w/o cause should not be an undercover cop.
    
    What an ass. (The cop, not you.)
- Anonymous
  
  as I recall part of the argument is that the tapes 99% of the time get uploaded to youtube and such and would put the officer in danger.
  
  however in this case it seems that the gentleman didn’t tape a police officer. He taped a guy with a gun that got out of his car and after a ‘get off the bike’ could have been assumed to be attempted armed robbery. And THEN said “I’m a police officer”. So the biker wasn’t knowingly taping, or breaking the law.
  
  and hopefully the officer will get a little rip down for failure to identify himself immediately
- Anonymous
  
  If it wasn’t against the law then it would be more difficult for them to hide there mistakes, and they wouldn’t be able to break the law themselves as much.
rebdav

Disarm the cops. The good ones will stay and adjust their tactics. Also no more muscle cars or aggressive driving.
- apoxia
  
  If all you have is a hammer, everything looks like a nail.
  - Tdawwg
    
    Eh. A 120-MPH-driving motorcyclist who’s recklessly endangering himself and others will look like a nailâ€”a loose, dangerous, begging-to-be-hammered-down nailâ€”no matter what you’re holding.
- AlexG55
  
  That’s a Chevy Malibu- not a muscle car in any sense of the word. It’s also (I think) the officer’s personal car, so the police department’s choice of patrol car has nothing to do with it.
  
  @PARLIAMENT- This guy deserves to be arrested, fined and possibly to lose his license for a while (he’s sold the bike). On the other hand, the fact that someone drives recklessly does NOT mean that they are likely to assault a police officer or flip out and kill people as you seem to be implying. There are at least 2 things I would rather Officer Uhler (hopefully soon to be ex-Officer, but I wouldn’t bank on it) had done:
  
  Wait for an on-duty officer like the one who appeared in the video later on to make the arrest. The biker wasn’t evading pursuit- he was stopped at a light!
  
  More importantly: lead with the badge not the gun. From the biker’s point of view, a random stranger just leapt out of the car in front brandishing a pistol at him. Everyone involved is lucky he didn’t panic, dump the clutch and get away from the gun-wielding maniac as quickly as possible.
  
  You don’t wave a gun and shout “Get off the bike! Oh, by the way, I’m a policeman.” You wave your badge and shout “Police! Get off the bike!” and then *maybe* draw your gun if he looks likely to attack you or someone else (reckless driving isn’t worth killing a fleeing suspect over).
Mark Frauenfelder

“But Harford County State’s Attorney Joseph I. Cassilly said the ruling ‘will make it more difficult for the police to do their jobs’”

Because the small percentage of police who are nothing more than armed thugs will have to think twice before attacking people they have sworn to protect and serve.
nerd

Because being worried about a Rodney King-style debacle will decrease their ability to keep the peace? How about just don’t kick people’s asses?
sapere_aude

At the risk of being a nitpicker, the headline should read that the case was dismissed, not that the charges were dropped. Saying that the charges were dropped implies that the district attorney decided not to prosecute, which is not what happened. The judge threw the case out of court. Judges in the US often get a bad rap; but, more often than not, judges are the chief defenders of the rights and liberties of the people; and they deserve far more credit than they normally get.
- EricHarley
  
  The case wasn’t dismissed. From the article, “The judge left intact only traffic violations that include speeding and reckless and negligent driving”
  - sapere_aude
    
    Sorry, I should have said that the specific charges of wiretapping were dismissed; not the entire case. But the charges were not “dropped” — which would indicate a decision by the DA not to prosecute, not a dismissal of the charges by the judge.
Trevel

To expand on the first poster:

Question: can anyone provide a rational reason why “videotaping” a *plain clothes* police officer *in an unmarked car* should be against the law?

Although I am suddenly struck by the urge to become a plain clothes police officer in Maryland, step into camera range of a family filming their vacation, and then have everyone involved arrested for it.
JB

Poor cop….he looks angry…I guess i would be as well if those were my jeans and I was filmed wearing Sketchers “shape ups”
zk

I don’t believe that the video part of videotape is at issue. I believe that the Maryland cops, along with a few other states (Mass ?) press charges based upon the audio part of the video recording.

Video only – OK. Video + audio — breach of wiretap laws.

Some will remember that Maryland’s wiretap laws were an issue in the Clinton/Lewinsky/Tripp saga
jeligula

The only thing I see is an aggressive asshole with a gun inviting me to run him down with my motorcycle before he shoots me.
theawesomerobot

I can only hope that the guy on the motorcycle can press his own charges against the police officer for using unnecessary force – to come out of a car in plain clothes wielding a gun like that is enough to cause anyone a fair amount of emotional trauma.
- Doramia
  
  If the motorcyclist is foolish enough to attempt legal recourse, he should expect retaliation. That’s foolishly naive.
jphilby

As the people in my little hometown used to say: sauce for the goose, sauce for the gander.
PARLIAMENT

Sometimes I wish that exactly this would happen to bikers who scream by with super-loud bikes at insane speeds. What do you want the cop to do, the guy’s in head-to-toe armor with his face covered, and he could be carrying a knife anywhere on him. He’s already shown that he won’t act reasonably and is willing to put lives at risk, he’s a threat. Of course, the wiretapping charge is outrageous.
- Anonymous
  
  What would I want him to do? I would like him to identify himself as an officer of the law *before* drawing a gun. Badge out, hand on pistol because if the guy saw he was a cop and gunned it the police office might be right to fire if his life was in danger.
  
  And erm, yes I supposed the guy could be carrying a knife, but so could anyone a cop stops, and they don’t pull a gun on everyone they stop. (Plus trying to unzip a pocket to get a knife out with motorcycle gloves on isn’t really that easy)
dainel

The wiretap laws only apply on the audio portion of the recording, not the video. So the reason is not because recording an undercover police officer will reveal his identity.

Police and DA is trying too hard to derive some legal/technical meaning of the word “wiretap”, that they’ve missed the obvious one.

Pitt ruled, Rocah said, that “if you are close enough to be able to hear with your own ears, then you can record”

Common sense from the judge (Emory A. Plitt Jr). It’s not wiretap if you can already hear with your own ears, what you’re recording.
Anonymous

“Question: can anyone provide a rational reason why “videotaping” a police officer should be against the law?”

The reason is shut up. That’s why!
Lucifer

What if another undercover or off-duty cop was nearby and saw the first undercover cop run out with a gun drawn? Cop-on-cop shootout?
Dismissing the illegal wiretapping charge was just plain common sense. The DA needs to get a lesson in reading comprehension.
- Anonymous
  
  Happened at a UCF tailgating party a couple of years ago. Overzealous cop grabs an under age drinker, pulls his gun, another cop saw him and……Boom.
Anonymous

It does not matter what the actions of the motorcyclist were prior to this event. That is not for a cop to decide. It is to be borne out by due process of the law, not on the side of the road.

If I were cut-off and confronted by a gun toting angry man while riding my motorcycle, my first reaction would have been to rapidly accelerate into the gun toting angry man.

This cop is lucky that he did not get killed or severely injured by the motorcyclist.

If you pull a gun on me, not being a cop, or having not introduced yourself as a cop, it is my right and duty to end your life to protect my own.
Art

I like how the rider made little proud remarks on his video, as if to brag…. “127 mph”….Wheelie!”.

Please. He was a danger to every single person on that road.

Welcome to the United States of Arrested Adolescents.
pauldryan

Across Canada, the Criminal Code s.184(2)(a) specifically permits the recording of any communication when one of the direct participants has given permission to the recording.

There is no requirement for an expectation of privacy by the unsuspecting participant to the conversation.

For the record, I would have thought a similar exemption existed in many US states; isn’t that how Mel Gibson is getting his chops busted by his Russian “indiscretion”.

Although I vaguely recall bewilderment when Linda Tripp was indicted, she was never charged in the Lewins*y affair and I believe that on at least four occassions US Federal Appeals courts have ruled that there must be evidence of intent to perform an illegal act with the recording.

â€œThe defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself,â€
delt664

As far as I have been able to tell, no badge was produced by this officer. From the perspective of the rider, this is just an angry man with a gun. This officer should be charged with assault with a deadly weapon, just as the rider should still be charged with whatever traffic offenses are appropriate.
redesigned

an officer in plain clothes and an unmarked car pulled in front of him, drew a gun and ordered him off his bike before identifying himself as police.

He obviously started taping long before the plain clothes cop in an unmarked car identified themselves as a police officer. They were not in uniform nor in a marked car, nor did the announce themselves as police or flash identification. That is a completely different act then intentionally taping an officer in uniform.

Making it illegal to tape police officers is a very dangerous thing. Shouldn’t they be publicly accountable for their actions? Without some sort of proof of misdeed or inappropriate action it would come down to an officers word vs that of a citizen. Taping helps ensure that our rights are not violated and that if they are the responsible parties are held accountable. that alone far outweighs any argument against taping.
chortick

The officer pictured above is cupping his left hand under the magazine of his semi-auto pistol. In the case of a critical failure, that pistol is designed to blow out through the magazine, i.e. straight down, through his hand. The correct position for the weak hand is around the grip. Even making allowances for a slim profile gun intended for concealed carry, someone needs to go back to basic safety training.
- insatiableatheist
  
  Wouldn’t blowing out through the magazine be even more dangerous, considering it has to blow through a full clip of live ammunition?
  I thought it was designed to blow out through the ejector casing.
- duggo42
  
  The video frame boingboing chose for the above image is EXTREMELY misleading. The offcer only had the gun in that position for all of a quarter of a second. The gun itself was unholstered for maybe six or seven seconds and was pointed at the ground the entire time.
  
  Go to 3:15 in this video and see for yourself: http://www.youtube.com/watch?v=G7PC9cZEWCQ
  
  Not saying the gun should ever have been drawn in the first place, just that the above image was chosen for sensationalism and does not accurately show how the gun was handled.
  - bassplayinben
    
    Misleading? A cop in plain clothes jumped out of his unmarked car with his weapon in hand and a scowl on his face. The image does accurately portray what happened : the police officer pulled out his pecker and waved it around in order to instill fear in the “perpetrator”. Like others here have said, he’s lucky he didn’t get run over.
    - duggo42
      
      Ok, I can see how it might be considered accurate if your observations are limited to, “the angry man jumped out of the car, he had a gun and I was scared.” For observations in the detail as Chortick was making, it is misleading.
      
      I’ll add that, in my opinion, he appears far more calm and deliberate in the video than in the image of a “gun waving maniac” above. The ability to alter context like this is probably the best argument they have against allowing police to be recorded.
      
      For the record, I’m 100% for allowing people to record police doing their jobs and I’m not condoning the recorded officer’s actions.
teapot

I can’t believe people are still coming down on the side of the cop.

THEY DROPPED THE CHARGES YOU FRIGGIN’ IDIOTS. The cop was obviously in the wrong, or the prosecutors would have never dropped their BS.

It’s not like the guy got away for free – he’s still gonna have a ticket for reckless driving – so quit with the vitriol you god damn worry trolls. If the world was run by you it would be a boring, boring place.
- sapere_aude
  
  The prosecutors didn’t “drop the charges” (the headline above is wrong). The judge threw the wiretapping charge out. And the commenters here have not been “coming down on the side of the cop” with respect to the wiretapping charge (assuming that the cop had anything to do with the wiretapping charge in the first place). We all agree that it’s absurd to prosecute someone for videotaping a cop performing his or her duty on a public street. And most of the commenters here have condemned the cop’s overreaction, and his failure to identify himself as a cop before pulling his gun on the biker. The only sympathy for the cop that I’ve read here is due to the fact that the guy on the motorcycle was driving recklessly, endangering the public, and deserved to be arrested and charged. People are glad that a cop stopped him before he got someone killed or seriously injured. But I don’t think that anyone here is applauding the cop for how he handled the situation, or applauding the prosecutors for their absurd decision to file wiretapping charges against the biker for videotaping the incident.
Alan

I’d like to say that not all cops are assholes like this guy. I work at the University of Texas in Austin and encountered some SWAT guys shooting the breeze after today’s little event. I asked to take their photo, and they all were more than happy to pose. Though they were holding weapons, they weren’t going out of their way to display them, either. It was more akin to a group of coworkers standing and getting their picture taken. Another cop from another agency stood nearby and just smiled while the whole thing went on.

True, there wasn’t a situation at the time, but they didn’t seem bothered in the least.
- delt664
  
  I agree- the vast majority of LEO’s are good guys doing a tough job. The problem is when the bad ones are not held accountable because of institutionalized stone-walling, cover ups, and bullying.
  
  When this happens, all good LEO’s are tainted with the stench of the bad LEO’s actions.
redesigned

Most cop cars have cameras mounted inside to record all interactions and protect themselves. They wanted to charge this guy with a crime for doing what they consider standard practice. Police are not above the law and should be very cautious applying double standards.

My favorite quotes:

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” Plitt wrote. “When we exercise that power in a public forum, we should not expect our activity to be shielded from public scrutiny.”

and:

An officer arresting someone says anything they say can and will be used against them in a court of law, why should the officers be held less accountable.

I’m glad to see a judge who understands the situation and implications of their ruling. Thank you for upholding our rights and stopping unnecessary bullying by a police force trying to cover up a less then stellar pullover. 10 years….yeesh!
Brewtown

teapot,
It’s my understanding the cop may not have had anything to do with the wiretap charges. Those came afterwards once the video was uploaded to the internet.
Brewtown

And I’m not endorsing a “boring world”, but I have been cut off by too many jack-asses on the road that don’t give a shit about me or mine to have too much sympathy for this guy.

With that said, I’m lad the wiretapping charge got overturned…
Anonymous

There is no such law:
“under Maryland’s law which makes it illegal to videotape a police officer”

They are attempting to bend t he will of a wiretapping law; and in doing so are implying that OFFICERS HAVE AN EXPECTATION OF PRIVACY WHILE BEING PAID BY THE PUBLIC INTEREST…

Police state politics FTL. glad this was dismissed.
teapot

It’s my understanding the cop may not have had anything to do with the wiretap charges.

I am not suggesting he does – the Police Department would have been responsible for bringing the charges in order to protect their own kind. In any case, my point remains – whether or not the cop brought the charges is irrelevant. His actions were inapropriate, the video confirmed this, they tried to silence the ‘perp’ based on laws which were clearly not intended for this purpose but that was stepping over the line, as confirmed by the Judge’s ruling.

Generally speaking, motorbike riders are far better and far more careful than your average car driver. Why? Because if a bike crashes, the chance of it being a fatal accident is much much higher. People tend to group ‘reckless’ drivers with ‘fast’ drivers. While there is probably some ovbious crossover in the groups, they aren’t mutually inclusive. I see countless people everyday who are seemingly driving within the road rules, but whom are infact driving in a way which will, one day, cause an accident.

The less considerate other drivers are, the more dangerously I drive around them. Going 10km/h under the speed limit in the fast lane? Yes I will tailgate you, until the opportunity arises to overtake you. When I overtake you I will cut so close to the front corner of your car that you slam on the brakes out of panic. Why? Because you shouldn’t be driving 10k under the speed limit in the fast lane. Common courtesy goes both ways, but all the safety-nuts out there regularly forget this. So I make ‘em shit their pants.
- shadowfirebird
  
  “When I overtake you I will cut so close to the front corner of your car that you slam on the brakes out of panic. Why? Because you shouldn’t be driving 10k under the speed limit in the fast lane.”
  
  Are you also the sort of driver who taps the brakes when people tailgate them?
  
  If so, pray that you never find yourself driving behind yourself.
  - teapot
    
    Are you also the sort of driver who taps the brakes when people tailgate them?
    
    Why would that make any sense? If someone wants to get past me, I let them. That’s the whole idea behind common courtesy, you see…