DebateGate

General Category => 3DHS => Topic started by: Universe Prince on May 31, 2010, 12:04:09 AM

Title: Do police on duty have an expectation of privacy?
Post by: Universe Prince on May 31, 2010, 12:04:09 AM
Radley Balko is picking on poor ol' police officers again. He seems to think private citizens ought to be allowed to record on duty police officers in the course of the police officer's work.

http://reason.com/blog/2010/05/29/maryland-cops-say-its-illegal (http://reason.com/blog/2010/05/29/maryland-cops-say-its-illegal)
         In a column last month I wrote about Anthony Graber, a Maryland man who was arrested for posting a video of a traffic stop to YouTube. Graber was pulled over on his motorcycle by Maryland State Trooper Joseph David Ulher. Uhler drew his gun during the stop. Graber was wearing a camera on his helmet. Graber thought Uhler's actions were excessive, so he posted the video to the Internet. Days later, police raided the home of Graber's parents. Graber was arrested, booked, and jailed. He was charged with violating Maryland's wiretapping statute. In an interview he gave to blogger Carlos Miller shortly after, Graber said, "The judge who released me looked at the paperwork and said she didn’t see where I violated the wiretapping law."

In my previous column, I interpreted that to mean the judge had dropped the charge. Apparently that isn't the case. Graber is due in court next week. He faces up to five years in prison. State's Attorney Joseph Cassilly has also charged Graber with "Possession of an Interception Device." That "device" would be Graber's otherwise-perfectly-legal video camera.

[...]

Maryland is an all-parties-consent state, which means you have to get permission from all parties to a conversation before you can record it. But unlike Illinois and Massachusetts, Maryland's law does include a privacy provision. That is, if the non-consenting party does not have a reasonable expectation of privacy with respect to the conversation that has been recorded, there is no violation of the law. State and federal courts across the country have determined that there is no reasonable expectation of privacy in public spaces. This is why someone can snap your photo in public without your consent.

[...]

In 2000, Maryland Attorney General Joseph Curran, Jr. was asked to issue his opinion (PDF) on whether a plan by the Montgomery County Police Department to install recording devices on patrol officers would violate the wiretapping statute. To date, Curran's opinion has not been modified or changed.

Curran determined that because protocol for the plan required officers to inform motorists they were being recorded, it did not. But Curran was also asked to determine what would happen if an officer inadvertently recorded someone without informing him first. Curran again said the officer would not have violated the statute. But a footnote to that opinion included the following language:

      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.”      

I suspect most people would find this to be common sense. No one expects what they say to a cop during a traffic stop to be private. But when you combine that with how some Maryland cops and prosecutors are interpreting the law, such as in Graber's case, you get a perverse result: When a cop pulls you over or detains you for questioning, he—the public servant with the badge and the gun—retains a right to privacy for the entire encounter. You don't.
         

To no one's surprise, I agree with Balko. Things like this are why I don't trust law enforcement. They get my respect, but not my trust. Law enforcement always assumes a position of special privilege. (Also, this is an example of why I believe the supposed anti-racial profiling clause in the Arizona immigration law is meaningless. It's not going to stop police profiling anybody. But that is a whole other argument.) Which is not say law enforcement doesn't have such a position. But there is a difference between being allowed the use of force or speeding to a crime scene, and insisting private citizens have no right to record the actions of law enforcement. That law enforcement is law enforcement means private citizens should be able to record uniformed officers on duty. Law enforcement to should be held to a higher standard, and being recorded by private citizens is one very important way of making sure that happens. Think I'm being unfair? I'll close with this, from the same article:

         Graber's case is starting to spur some local and national media discussion of the state's wiretapping law. As I mentioned in my column last month, his arrest came at about the same time the Jack McKenna case broke nationally. McKenna, a student at the University of Maryland, was given an unprovoked beating by police during student celebrations after a basketball game last February. McKenna would probably still be facing criminal charges and the cops who beat him would likely still be on the beat were it not for several cell phone videos that captured his beating. According to Cassily's interpretation of the law, if any of those cell phones were close enough to record audio of the beating, the people who shot the videos are felons.

[...]

Whatever [Maryland law enforcement officials] motivation, their legal justification is dubious. The McKenna case is a strong argument in favor of more citizen monitoring of on-duty police. The police not only beat the kid, they then lied about it in police reports. The security camera footage of McKenna's beating, which is controlled by University of Maryland Campus Police, mysteriously disappeared. The officer in charge of the camera system is married to one of the officers involved in the beating. Does anyone really think the charges against McKenna would have been dropped—and the officers who beat him suspended—if it weren't for the cell phone videos?
         
Title: Re: Do police on duty have an expectation of privacy?
Post by: Kramer on May 31, 2010, 12:53:43 AM
no
Title: Re: Do police on duty have an expectation of privacy?
Post by: Xavier_Onassis on May 31, 2010, 11:27:11 AM
The police are public officials. They work for the public. It should be illegal to record a cop off duty, but on duty, they work for us and their actions are public actions, as they act in the interest of the public.

So this guy had a right to record the officer and put him on YouTube.
Title: Re: Do police on duty have an expectation of privacy?
Post by: kimba1 on May 31, 2010, 11:51:42 AM
uhm
 I thought wiretapping and recording device are legally different? has that changed?

Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on May 31, 2010, 12:35:08 PM
Quote
It should be illegal to record a cop off duty, but on duty, they work for us and their actions are public actions, as they act in the interest of the public.

Couple of points.

1 the gun slinging cop was not in uniform so he was either off duty or under cover. Perhaps if he was undercover he didn't want to have his image on the inter nets. Which begs the question. Is it legal to blow an undercover cops cover?

2. the biker passed a trooper in the video at around the 1 minute mark and did not pull over for another 2.5 minutes.

Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on May 31, 2010, 12:38:19 PM
Quote
It should be illegal to record a cop off duty, but on duty, they work for us and their actions are public actions, as they act in the interest of the public.

Couple of points.

1 the gun slinging cop was not in uniform so he was either off duty or under cover. Perhaps if he was undercover he didn't want to have his image on the inter nets. Which begs the question. Is it legal to blow an undercover cops cover?

2. the biker passed a trooper in the video at around the 1 minute mark and did not pull over for another 2.5 minutes.



Undercover cops should not make traffic stops.
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on May 31, 2010, 07:27:46 PM
He didn't make the stop. He assisted. The trooper who made the stop was in pursuit for a couple of minutes.
Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on May 31, 2010, 08:30:18 PM
He didn't make the stop. He assisted. The trooper who made the stop was in pursuit for a couple of minutes.


They really should not assist either, the "cover" they are under is valuable.

Unless the policeman was in evident distress he could have driven on to preserve the cover.
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on May 31, 2010, 09:32:02 PM
Absent the camera his cover would have remained reasonably intact, if he was in fact undercover or less covert, simply in plain clothes.

 
Title: Re: Do police on duty have an expectation of privacy?
Post by: Xavier_Onassis on May 31, 2010, 10:17:43 PM
I say that the cop has no case at all trying to claim that he has a right of privacy. If he wanted privacy, he did not even need to "assist".
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on May 31, 2010, 11:21:55 PM
Does a bus driver have a right to privacy?

How about a garbage man?

Is doing your job outside different than doing your job inside. Would a nuclear power technician have a reasonable expectation that he would be able to do his work without and citzen du jour filming his every move?

Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on May 31, 2010, 11:24:38 PM
Does a bus driver have a right to privacy?

How about a garbage man?

Is doing your job outside different than doing your job inside. Would a nuclear power technician have a reasonable expectation that he would be able to do his work without and citzen du jour filming his every move?



While he is on public road or on my property?

I think not , would I be in trouble fixing a camera onto my garbage cans to find out why they were being smashed?
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on May 31, 2010, 11:48:48 PM
Bus driver on a public road.

Should a passenger be allowed to stand next to him and film him as he drives?
Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on June 01, 2010, 12:27:12 AM
Bus driver on a public road.

Should a passenger be allowed to stand next to him and film him as he drives?



Film yes , stand no.
Title: Re: Do police on duty have an expectation of privacy?
Post by: Kramer on June 01, 2010, 12:31:25 AM
Bus driver on a public road.

Should a passenger be allowed to stand next to him and film him as he drives?


only is it's a par 5
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on June 01, 2010, 01:27:28 AM
Quote
Film yes , stand no.

Why the restrictions?

Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on June 01, 2010, 01:44:54 AM
Quote
Film yes , stand no.

Why the restrictions?



I have been a licensed Bus driver.

For safety the driver may demand passengers be seated.

I don't see a safety problem with being on film.

Some schools are placeing the cameras on busses now to help record the events as truely as possible.
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on June 01, 2010, 02:08:04 AM
You wouldn't think being filmed by some passenger would be a distraction to the driver and compromise the safety of all the passengers on the bus?


Title: Re: Do police on duty have an expectation of privacy?
Post by: kimba1 on June 01, 2010, 03:09:53 AM
You wouldn't think being filmed by some passenger would be a distraction to the driver and compromise the safety of all the passengers on the bus?

what??

it`s not uncommon for people to be uncomfortable being filmed. it`s kinda related to public speaking.
not everybody can handle it well.

bus drivers are not required to handle being filmed.
Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on June 01, 2010, 05:11:41 AM
You wouldn't think being filmed by some passenger would be a distraction to the driver and compromise the safety of all the passengers on the bus?




It is being done. I don't think a good driver would think much of it.
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on June 01, 2010, 06:13:05 PM
It's being done with automated systems and not by passengers with toys.
Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on June 01, 2010, 11:00:18 PM
It's being done with automated systems and not by passengers with toys.



So the employer can tape the video , the paying customer can't?

Why not? What is a driver going to do that being on camera will harm?

Have you parked in the Wall Mart parking lot lately?
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on June 01, 2010, 11:10:12 PM
So a paying customer filming the bus driver is doing it for security reasons , like the cameras at walmart and the bus company mounted cameras above the drivers seat?

Is the film public property or private, do i have the right to view it?

Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on June 01, 2010, 11:26:33 PM
So a paying customer filming the bus driver is doing it for security reasons , like the cameras at walmart and the bus company mounted cameras above the drivers seat?

Is the film public property or private, do i have the right to view it?




I do not know why the customer wants to make the tape. Unless something unusual happens this will be a very boreing tape. I don't see why the intent matters.

The guy that took the tape of the cops ythat stopped him had a helment mounted camera , should these be forbidden on public roads?

I certainly have an expectation of privacy in my house , but do I have an expectation of privacy on the road? In the woods? In someone eleses house? , place of business?

How was this guy supposed to have known that the fellow approaching him was an undercover cop? How can we give undercover cops a greater right to privacy that the ordinary guy they are pretending to be can have?


Quote
 
A man was driving down the road. He passed a traffic camera and saw it Flash.

Astounded that he had been caught speeding when he was doing the speed limit, he turned around and, going even slower, he passed the camera.

Again, he saw it flash. He couldn't believe it! So he turned and, going a snail's pace, he passed the camera. AGAIN, he saw the camera flash. He guessed it must have a fault, and home he went. Four weeks later he received 3 traffic fines in the mail, all for not wearing a seatbelt.

Submitted by Larry, Walkersville, MD.
 
 
Return to: Top of Page, List of Funny Stories, My little Sister's Jokes
 
http://www.emmitsburg.net/humor/archives/funny_stories/funny_stories_5.htm#A (http://www.emmitsburg.net/humor/archives/funny_stories/funny_stories_5.htm#A) man was driving down the road. He passed a traffic camera and saw it Flash.
Title: Re: Do police on duty have an expectation of privacy?
Post by: kimba1 on June 01, 2010, 11:35:47 PM
uhm
I might be seeing this wrong,but when it`s an iisue about undercover officer it`s not about privacy, but the well being of the officer. it`s a situational thing.meaning if somebody flashes a camera and gets beaten up the officer maybe risking his life if he gets involved.this is not a privacy issue at all.
Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on June 01, 2010, 11:51:48 PM
uhm
I might be seeing this wrong,but when it`s an iisue about undercover officer it`s not about privacy, but the well being of the officer. it`s a situational thing.meaning if somebody flashes a camera and gets beaten up the officer maybe risking his life if he gets involved.this is not a privacy issue at all.

No this would become an issue of performing as an undercover agent well or poorly.

When it is necessacery to break cover to save a life or to stop a very serious crime there should be no reason to hesitate. But without extrodinary circumstances the undercover cop should act just as if he were what he was pretending to be, who stops to assist a traffic stop other than an officer?

I would not willingly endanger an undercover cop , but how can I be required to preserve the secret that should be secret also from me?  If I am useing a camera in a crouded area , should all of the undercover cops in the croud make themselves known to me so that I can blurr their image?
Title: Re: Do police on duty have an expectation of privacy?
Post by: Plane on June 02, 2010, 12:41:08 AM
http://www.autoblog.com/2010/04/19/motorcyclist-arrested-for-recording-cop-brandishing-gun-with-hel/ (http://www.autoblog.com/2010/04/19/motorcyclist-arrested-for-recording-cop-brandishing-gun-with-hel/)
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on June 02, 2010, 01:53:10 AM
Yeah i watched the whole video.

The biker passed a cop in the median at about a 3rd of the way into the video. my guess is at that point there was an active pursuit. According to the comments, reports said the biker was driving in excess of 100 mph.

again, if MD has a law on the books against recording audio communication without both parties being aware of it, so be it.
Title: Re: Do police on duty have an expectation of privacy?
Post by: Universe Prince on June 03, 2010, 04:56:51 PM
According to David Rittgers at Cato:
http://www.cato-at-liberty.org/2010/06/03/revise-the-maryland-wiretap-law/ (http://www.cato-at-liberty.org/2010/06/03/revise-the-maryland-wiretap-law/)
         If you ask some officers in Maryland, any recording of a conversation violates the wiretap statute. If you ask a judge, you will get an entirely different reading of the law. Even though Maryland’s wiretapping statute is considered a “unanimous consent” or “two-party consent” law, its language is different from other states put in the same category such as Massachusetts and Illinois. Where Massachusetts and Illinois have no protection for recordings of conversations outside of electronic means of communication, the first section of the Maryland wiretapping law restricts unlawful interceptions of “oral communications” to words spoken in a “private conversation.”

While the analysis for wire communications is made without regard to privacy, Maryland courts held in Fearnow v. C & P Telephone Co. that a “private conversation” is one where there is a “reasonable expectation of privacy.” Fourth Amendment jurisprudence provides plenty of guidance on where a “reasonable expectation of privacy” exists. Simply put, a traffic stop on an interstate is not a place where Anthony Graber or the officers who cited him have a reasonable expectation of privacy.

This conclusion is bolstered by the guidance given to the Montgomery County Police by the Maryland Attorney General in this 2000 advisory opinion on recording traffic stops. Since 1991, the wiretapping statute had an exemption for police dash cameras where officers could record interactions with motorists when they warned the citizen that the traffic stop would be recorded. The 2000 letter addresses the possibility that other people could show up after the receipt of consent from a motorist and potential “inadvertent interceptions.” The opinion concludes that there is little for officers to worry about, but the state legislature expanded the law enforcement exception in 2002 to address this concern anyway. In a footnote, the advisory opinion makes the point that, in any case, the motorists being pulled over have no reasonable expectation of privacy:

      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.”      

The Attorney General’s office provided further guidance on the issue in this letter to a state legislator in 2009, advising that surreptitious recording of a meeting of the Democratic Club would probably not be a violation of the Maryland wiretapping law because statements made in this setting lack a “reasonable expectation of privacy.”
         

That the biker was speeding doesn't matter. There is no reasonable expectation of privacy between a police officer and a citizen in a traffic stop when the officer is making the recording. Making an audio/visual recording of an encounter with a police officer in a traffic stop is not and should never be a violation of the law.
Title: Re: Do police on duty have an expectation of privacy?
Post by: BT on June 03, 2010, 09:31:12 PM
Then the judge who issued the warrant for the computer equipment and the arrest of the subject was wrong, which ruling  i guess will come out in trial or appeal, if the case makes it to trial.