One, under no possible interpretation of 4th Amendment do police in public enjoy an expectation of privacy. And indeed, both the 1st and 4th Amendment to the Constitution ought to protect private citizens filming police in the public square. Moreover, as a matter of public policy, if there is police misconduct, the public has a right to know. Taping someone in the public square has the benefit of protecting the public, the police, and police suspects. Punishing such taping is what one would expect from the regime in North Korea - not something that would happen in America.
Yet today, a man faces a 16 year prison sentence in Maryland for doing precisely that. This from ABC News:
That Anthony Graber broke the law in early March is indisputable. He raced his Honda motorcycle down Interstate 95 in Maryland at 80 mph, popping a wheelie, roaring past cars and swerving across traffic lanes.
But it wasn't his daredevil stunt that has the 25-year-old staff sergeant for the Maryland Air National Guard facing the possibility of 16 years in prison. For that, he was issued a speeding ticket. It was the video that Graber posted on YouTube one week later -- taken with his helmet camera -- of a plainclothes state trooper cutting him off and drawing a gun during the traffic stop near Baltimore.
In early April, state police officers raided Graber's parents' home in Abingdon, Md. They confiscated his camera, computers and external hard drives. Graber was indicted for allegedly violating state wiretap laws by recording the trooper without his consent.
Arrests such as Graber's are becoming more common along with the proliferation of portable video cameras and cell-phone recorders. Videos of alleged police misconduct have become hot items on the Internet. YouTube still features Graber's encounter along with numerous other witness videos. "The message is clearly, 'Don't criticize the police,'" said David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber's defense team. "With these charges, anyone who would even think to record the police is now justifiably in fear that they will also be criminally charged."
. . . In Palm Beach County, Fla., Greenacres resident Peter Ballance, 63, who has Asperger's syndrome and has to record conversations to help his memory, settled a civil lawsuit for $100,000 last year. In August 2005, police officers tackled and arrested Ballance for refusing to turn off his tape recorder.
. . . Rocah of the ACLU [said] . . . "It's not that recording any conversation is illegal without consent. It's that recording a private conversation is illegal without consent," he said. "So then the question is, 'Are the words of a police officer spoken on duty, in uniform, in public a 'private conversation.' And every court that has ever considered that question has said that they are not."
Rocah said actual wiretapping prosecutions, though rare, are happening more frequently. But intimidation with the threat of arrest for taping the police is much more common.
"Prosecution is only the most extreme end of a continuum of police and official intimidation and there's a lot of intimidation that goes on and has been going on short of prosecution," he said. "It's far more frequent for an officer to just say, 'You can't record or give me your camera or give me your cell phone and if you don't I'm going to arrest you. Very few people want to test the veracity of that threat and so comply. It's much more difficult to document, much more prevalent and equally improper." . . .
The vast majority of the middle class (the Harvard Prof. Henry Louis Gates's of our country aside) trusts the police. I can think of no quicker way to end that trust and to drive a wedge between the police and the middle class than this overreach on behalf of the state. And bad things will inevitably happen when Middle America no longer has trust in the police.
(H/T Crusader Rabbit)