Do police on duty have an expectation of privacy?

[Universe Prince]

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

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?

[Kramer]

no

[Xavier_Onassis]

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.

[kimba1]

uhm
 I thought wiretapping and recording device are legally different? has that changed?

[BT]

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.

[Plane]

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.

[BT]

He didn't make the stop. He assisted. The trooper who made the stop was in pursuit for a couple of minutes.

[Plane]

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.

[BT]

Absent the camera his cover would have remained reasonably intact, if he was in fact undercover or less covert, simply in plain clothes.

 

[Xavier_Onassis]

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".

[BT]

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?

[Plane]

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?

[BT]

Bus driver on a public road.

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

[Plane]

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.

[Kramer]

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