Public Defense

Gun-waving cop has right to privacy

By Gideon

is that a gun in your hand or are you just happy to see me?

This incident occurred back in April, but is back in the news with an ACLU press release. The ACLU is representing Anthony Graber…well, you know what? Just watch:

That’s Graber, on the motorbike, and that’s Joseph David Uhler, gun-waving, taking-too-long-to-identify-himself, plain-clothed, unmarked-car-driving, off-duty, state police officer.

Graber got a ticket for speeding, which he gladly accepted, but was then subject to some Apple Gestapo tactics, with police getting a warrant to search his home and seize his computers.

He’s charged with illegally recording the conversation he had with the officer in public and thus violating the officer’s right to have a private conversation while waving a gun at a suspect and yelling at him on the offramp of an exit off the major interstate in the country, which is nonsense code for cops are above the law. Plus the fact that there’s a damn video camera stuck to the guy’s helmet.

Popehat (and the multitude of comments) covered this back in April, with an in-depth analysis. I won’t repeat it here, but I’ll give you this extract:

Allegedly, Graber is being charged with ?interception of an oral communication? under Maryland?s ?wiretap? law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to ?intercept? with an ?electronic device,? in this case the microphone attached to Graber?s prominent helmet camera, an oral communication in private conversation.

But that isn?t what Graber?s really being prosecuted for.  He?s being prosecuted for contempt of cop.  For embarrassing a cop.  A cop, and a department, that richly deserve the embarrassment they?ve gotten, and the embarrassment they?re going to receive.

Because the charge against Graber is utterly unfounded.  The definition of ?oral communication? under Maryland?s wiretap law requires that the conversation be ?private,? which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy.  Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff?d, 342 Md. 363, 676 A.2d 65 (1996).  According to the Maryland Attorney General?s office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.

It seems that Graber is not alone in this. Here‘s another recent arrest for the same charge, also in Maryland. Of course, law enforcement types are always good for some lulz:

Remarkably, the state Attorney General has already opined that when police record in public, that is not a private conversation subject to the same laws. In other words, in any public interaction between a police officer and a member of the public in Maryland, it is private for one of them but not the other.

I know most law enforcement agencies are opposed to videotaping interrogations, but this is a little ridiculous.

Full post as published by A Public Defender on August 02, 2010 (boomark / email).