One law for them, another for us: is it illegal to record the police on the job?

In Reason magazine, Radley Balko takes an in-depth look at all the places in the USA where it's nominally illegal to record the police, and all the people who've faced fines or prison for recording law enforcement officers breaking the law with illegal beatings and harassment. High courts at the state and federal level are pretty consistent in ruling that privacy rules don't protect cops who are, say, beating someone up in an alley or waving their guns around at a roadside stop, but this doesn't prevent cops and prosecutors from dragging people who record law enforcement misdeeds through the criminal justice system.

The second incident came on April 13, about the same time McKenna's case began to make national news. Maryland State Trooper David Uhler pulled over motorcyclist Anthony Graber for speeding and reckless driving. Graber had a video camera mounted to his helmet that was recording at the time of the stop. Uhler, dressed in street clothes, emerged from his unmarked car with gun drawn, yelling. Graber was given only a traffic ticket, but he was miffed at Uhler's behavior. So he posted the video on YouTube. Days later, Maryland State Police conducted an early-morning raid on Graber's home, held Graber and his parents for 90 minutes, confiscated computer equipment, arrested him, and took him to jail.
Graber was charged with two felonies. The first was violating Maryland's wiretapping law by recording Uhler without the trooper's consent. The second was "possession of an intercept device," a provision in the same law that was intended for bugs and wiretaps but in this case referred to Graber's video camera, a device that is perfectly legal to own and use in just about any other context. Thanks to legislation written to prevent the surreptitious interception of communications, Graber faced up to 16 years in prison for recording a cop during a public traffic stop.
Wiretapping statutes apply to audio recordings, with or without video. Maryland is one of 12 states with a wiretapping law that requires consent from all parties to a conversation for someone to legally record it. But in 10 of those 12 states, including Maryland, the statute says a violation occurs only when the offended party has a reasonable expectation that the conversation is private. This privacy provision prevents people who record public meetings or inadvertently pick up conversations while shooting video in public from accidentally committing felonies. Civil liberties advocates argue that on-duty police officers, like people attending city council meetings or walking down a public street, do not have a reasonable expectation of privacy. For Graber to be convicted under Maryland's wiretapping law, a prosecutor would have to argue that Uhler--a police officer who had pulled over a motorist, drawn his gun, and yelled at the guy on the side of a busy highway--had a reasonable expectation that the encounter would remain private.

The War on Cameras (via /.)

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flytch

this guy should be a cop no more!!! this is way over the top!!!.. I was passed by a cop yesterday… I was doing 70mph on a 65mph road… and he was doing 80! most cops become cops so they can speed and skirt the laws…
This really gets me mad!!!! I agree with fireinwinter on this… this was way over the top!!!…
Anonymous

It is interesting to dwell on how many people have thought in some way about this issue. I am in the UK and we have seen video evidence increasingly used in cases of police malpractice. I wonder if this state trooper ever thinks about the 800,000 people whom have watched this event and what they are thinking about his actions.
Anonymous

My feelings about the motivations of police comes from knowing a few personally including one in training. It seems to boil down to a few common traits:

- They have deep contempt for other people. Everyone who they don’t know personally is a bum, crook, or defective moron. Not unlike how Archie Bunker disliked all blacks except for the ones next door that he knew.

- A lack of empathy

- It is canned authority. They don’t have to earn respect they just get hired and then they can demand it.

- An intense desire to be obeyed and if you threaten that they freak out. This includes calling them out on an obvious mistake. In turn they blindly obey those above them. This is like a dog mentality.
Anonymous

They want to monitor us more, but they hinder us from monitoring them, even when we are within our legal boundries. Its because they do not want to be held accountable for their actions. Even when people get them on camera doing things wrong real justice is never served. Remember Oscar Grant.
Ivan R.

The cop watched too much detective shows… Should be banned to carry guns and put to some safer environment.
Anonymous

I ride although not a sport bike and I don’t do wheelies. But I do have a permit to carry a concealed pistol and I do carry. If a guy pulled around me, blocked me, and got out of an unmarked car with gun drawn I’m not saying I would have drawn my weapon (after all he already has the drop on me) but I would have viewed it as extremely threatening. The cop told him three times to get off the bike before showing a badge or identifying himself as a police officer. Bike jacking? This cop should be disciplined. And before you label me a cop hater, I have a son who is law enforcement. I am very supportive of them when they act professionally.
cjp

It is quite legal to videotape the police in Canada, apparently. This week it was announced that an officer with the Toronto Police Force will face criminal charges of assault with a weapon after his beating of a peaceful protester at the G20 summit was videotaped by at least two witnesses. Toronto Chief of Police, Bill Blair, was also forced to apologize after falsely claiming that the first tape had been tampered with – a fact disproved by the second recording.

This incident and the resulting serious charge against the officer would indicate to me that not only should it be legal to tape the cops, it should be considered the moral prerogative of any concerned citizen who is witnessing abuse of power.
- cjp
  
  The problem is that that’s a huge assumption to make. Knowing the difference between right and wrong has never been a strong suit with the human race. Violence begets violence, but we should be growing as a species to move beyond that historical truth. Living our lives without weaponry is a step into the future. As a Canadian, I can tell you that it is possible to create a society where one feels secure without a sidearm.
  
  The pen (and the video camera) are far mightier weapons.
marmite turkey

Aggressive cops notwithstanding, any motorcyclist that pulls wheelies in traffic at over 100mph is an arsehole who needs to have their license taken off them. What an arsehole.
- Anonymous
  
  Well of course the motorcyclist is an asshole, but what has that got to do with the main point of this story, which is whether or not cops can be videotaped? The specifics of what the suspect is up to here are entirely irrelevant (and banal), so what you are doing seems like trolling in this context, unless your mission is truly to prowl the internet to decry reckless driving wherever you find it.
Anonymous

reply to Antinous/Moderator..

and then the Samurai class were eliminated..
Hel

My fiancÃ© and I had an experience yesterday this makes me think of. A few weeks ago, our car was wrecked when someone hit it while my fiancÃ© was stopped at a light. We found out on Monday that the car is officially totaled. We went to the police impound lot on Tuesday to get all of our stuff out of the car. There was a sign on the window in the impound office which said something like “You are currently on camera. Making audio or video recordings without the agreement of all parties is illegal in this state. Do not make audio or video recordings.” I said to my fiancÃ© “Funny how there was no indication before we walked in that there were video cameras, and we never consented to be recorded. Guess the consent only counts when it’s theirs!”
knoxblox

Move along, move along. Nothing to see here.

They gone?

*WHAM*
CLamb

There’s a related article by Radley Balko, this one on “How to Record the Cops”, at http://reason.com/archives/2010/12/21/how-to-record-the-cops
kevinsky

I hate tough guy cops who think they can harass people for filming them, and I hate tough guy cops who leap out of their car waving a gun, but I’m glad this prick got a ticket for doing wheelies on a crowded highway at those speeds.

Christ, what a couple of assholes.
Ubernostrom

I just love how the officer leaps out of the car, gun at the ready, demands that he get off the motorcycle serveral times before finally stating “state police”. If this were in Alaska, where we are not required to have a permit for concealed carry, and that were me, I probably would’ve shot him thinking he was trying to steal my bike.
fireinwinter

I get irrationally angry about this. Insane, foaming at the mouth, want to punch someone, pass out from my rage angry.

No, seriously. My heart is racing as I type this. Cops who try to stop people from filming them, cops who try to prosecute people for filming them are filth. They are corrupt and they filth.

This is one of my buttons, to say the least.

RRRGH.
technogeek

It should also be noted that, even where one can argue that there is a reasonable expectation of privacy, that has generally been held only to constrain DISTRIBUTION of the photos, not taking them in the first place. You may need a model release before you can publish the pictures, where “publish” has varying definitions — but my understanding is that you’re allowed to take them, and to make them available to anyone who was actually a witness to the event depicted.

Someone really needs to do a national educational campaign, informing police departments of what the law actually says in this regard and asking them to inform all the officers.

Not that this will stop some folks from trying to assert that the law is whatever they want it to be. But at least it’d put them on record as having been told otherwise.
Anonymous

The motorcyclist was only one of several cases, and even if the charges were ultimately dropped in that case, the article cites other cases. Police have shown a pattern of intimidating people who videotape them by pressing spurrious charges, and just because the charges were dropped in one highly visible case does not mean that the tactic is not effective in other cases.
- Anonymous
  
  Hell, having the charges dropped isn’t the issue, anyway, who the fuck wants to get tangled up in these sorts of charges long enough for a judge to see them and make a decision? That’s a non-trivial length of time and amount of stress and there needs to be some kind of sanction for police departments misusing these rules. Just having one case where a judge found out the police officer was on duty when the incident occurs and then slapping his shit would make us all feel a lot safer.
Steve

Gone are the days when a conservative like myself usually trusted the police and even defended them, in polite conversation/debates.

This just reaffirms my belief that we don’t need gov’t, just an armed populace.

“An armed society is a polite society”, assuming said society follows the 10 commandments and has a basic understanding of right and wrong.
- spencercat
  
  “An armed society is a polite society”, assuming said society follows the 10 commandments and has a basic understanding of right and wrong.”
  
  That’s one big whopping assumption.
- Loraan
  
  What part of, “Honor thy father and thy mother,” and, “Keep the sabbath holy,” has anything to do with a universal moral code? The majority of the commandments have to do with ways that Yaweh wants his followers to treat him, not how people should treat each other. Let’s see…
  
  “I am the lord your god.”
  
  Okay, so universal moral code goes right out the window there, since he’s not the lord my god, and most other people neither.
  
  “No gods before me.”
  “No graven idols.”
  “Don’t take my name in vain.”
  “Remember the sabbath and keep it holy.”
  
  Uhh… hey, Yaweh. When are you going to get to that universal moral code you were talking about?
  
  “Honor your father and mother.”
  
  Seems reasonable.
  
  “Don’t murder.”
  “Don’t cheat on your spouse.”
  “Don’t steal things.”
  “Don’t lie about what people did.”
  
  Uhhh… that’s it? That’s your big universal moral code? A second grader could have come up with that. That’s what we’re supposed to base the morality of our entire society on?
  
  “Don’t covet things other people have.”
  
  Okay, a second grader probably couldn’t have come up with that. One point out of ten.
- Cynical
  
  Further to Looran’s comments above me, the politest society I have had the pleasure to experience is easily Japan, which is neither armed nor follows the ten commandments. Perhaps “a polite society is a polite society” would be more accurate?
  - Antinous / Moderator
    
    You have to at least consider the possibility that Japan is polite because, until the second half of the 19th century, samurai could summarily execute people who got on their nerves.
    - Cynical
      
      I think you could make a bit of a case for saying that, but I think it’s a lot deeper than “being rude would get your head cut off”. It would probably be more accurate to say that the language evolved as a way of signifying social heirarchy, caste relationships, status, seniority and even age in a society with a particularly odd implementation of confucianist ideas, and that this language now dictates a certain level of proscribed politeness in formal situations in modern times.
      
      Japanese people can be rude as hell outside of situations where formality isn’t necessary, but it’s still a generally more polite, safer place than either the UK or the US. I think even if they legalised firearms in Japan, most people wouldn’t see the point in owning one.
      - Antinous / Moderator
        
        Having not been to Japan, I’m not an expert, but my impression from other people’s writings are that it’s not a polite society so much as a society in which socially inferior individuals are deferential to socially superior individuals. Or, in other words, just a cryptic caste society masquerading as a polite one. My understanding is that your superiors there can berate you in a way which would earn you a well-deserved knuckle sandwich in the US.
WaylonWillie

i’m sorry, but both of those guys are stupid
- kevinsky
  
  “”An armed society is a polite society”, assuming said society follows the 10 commandments and has a basic understanding of right and wrong.”
  
  A world where everybody is armed and biblethumping? I’d never sleep again. Sounds horrific!
  
  I assure you, I know right from wrong better than most of the bible-believers I’ve ever met. I also know the bible better than most of the bible believers I’ve ever met, have any of these people even read the damn thing? For one thing, if they had, they wouldn’t be touting it as a decent guide to morals or ethics. You’re better off reading Moby Dick or Harry Potter if you’re looking for morals and ethics.
Anonymous

Cops on a power trip believing laws are for civies …get used to it Amerika
Anonymous

It got my heart going watching a guy dash out of a car with a gun pulled.
jimjambandit

Jeez! shouldn’t the first thing the cop pulls out be his badge?!
Let me be the first to say “Christ, what an asshole”
querent

Yeah, this is nuts. Another case of those we hire to serve and protect us getting vindictive and aggressive when they feel like we challenge their “authority” (they are servants).

Going that fast on a crowded road, he could kill somebody. But the worse crime, apparently, is filming the cops.

If you think the police aren’t (generally) HIGHLY vindictive, get involved with copwatch for a while.
Steve

I don’t carry a gun but I sometimes carry a small digital camera.

So maybe some people should carry both.
- P1rat3
  
  Or a small camera mounted on a gun! ;)
efergus3

Ummmmm, Cory, the wiretapping charge against Graber was thrown out of court back in Sep. The judge ruled that an on duty officer had no reasonable expectation of privacy. He WAS later convicted of his traffic violations. http://news.slashdot.org/story/10/09/27/2244216/Motorcyclist-Wins-Taping-Case-Against-State-Police?from=rss
efergus3

Sorry, better detail: http://www.exploreharford.com/news/6186/wiretapping-charges-against-motorcyclist-dismissed/
EyeInHand

So, just to claify: Police can video us to prove that we are breaking the law, but we can’t video tape them to prove we are not (or that they are). Also, wondering if states that prohibit video taping without consent also happen to have surveillance and traffic cameras running 24/7. When laws don’t apply to lawmakers or their enforcers we have a problem.
efergus3

What started the whole McKenna thing. As soon as the police started getting busted, they did the usual – charge the victims. http://www.gazette.net/stories/04132010/prinnew153805_32578.php
- IronEdithKidd
  
  More disturbing to me is the fact the PGC recently came out of Federal oversight and immediately starts behaving the way they did to gain oversight to begin with.
  
  Seems you can’t get a leopard to change it’s spots. You need to change the leopard.
Anonymous

I’m with marmite turkey, perhaps this isn’t the best example. This person was driving in a reckless and dangerous manner. They are putting everyone else on the road in danger. Not cool.
mrdysgo

This is absurd. What if this was in a state that allowed for concealed weapons? If the motorcyclist shot the cop, what would the case consist of?

Hypothetically, if that was the circumstance: The way I would see it, is that a random guy, walked up to another guy, during a police stop, with a gun, he (rightfully) felt threatened and fired, having no awareness of the fact that the man who approached him, was indeed, a cop.
- falnfenix
  
  FYI, Maryland DOES have a carry law. It’s just rare to find someone who actually has a permit to carry.
Anonymous

If you pull someone over and they have a camera attached to their helmet, isn’t it reasonable to assume that it’s recording? I’ll bet he was wearing a GoPro and the little red light was flashing.
Anonymous

Look at this from FOX News in Boston, they obtained a Boston police training video which every boston officer is required to watch, outlining that it is not illegal to record police officers in public.

http://www.myfoxboston.com/dpp/news/local/training-video-could-be-used-against-boston-police-in-lawsuit-20101222
SonOfSamSeaborn

I think this is just a case of a dickhead police officer. He should definitely be disciplined for drawing his weapon with no reason, but I’m wary of declaring police state dichotomies because I think issues like this need to be approached reasonably in order to highlight any absurdity coming from the administrations involved.