Wrongful Charges Dropped Against Motorcyclist Prosecuted for Videotaping Encounter with Police

September 27, 2010 12:00 am


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BALTIMORE, MD – Vindicating the First Amendment right to document what public officials say and do, the American Civil Liberties Union of Maryland applauded Harford County Circuit Judge Emory A. Plitt Jr’s decision today to dismiss all of the wiretapping charges against Anthony Graber. The Maryland State Police had charged Graber with violating Maryland’s wiretap statute, a felony, after he posted on YouTube a video and audio recording of his encounter with a state trooper in plain clothes who stopped him for a traffic violation with his gun drawn.

In today’s decision, Judge Plitt ruled: “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. “Sed quis custodiet ipsos cutodes” (“Who watches the watchmen?”).

“Today is a banner day for our First Amendment rights,” said David Rocah, staff attorney for the ACLU of Maryland. “The ACLU has long been concerned about improper police threats that Maryland’s wiretap law prevents citizens from recording their encounters with law enforcement. This ruling upholds the fundamental right to hold police accountable to the public and constitutional principles they serve.”

As to the wiretapping charges (contained in Counts one and two, which alleged the interception and dissemination of a “private conversation”), Judge Plitt found that police have no expectation of privacy in their public, on-the-job communications, and thus held Graber’s conduct could not be a crime: “The encounter in this case took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the Troopers has any reasonable expectation of privacy in the conversation with the Defendant which society would be prepared to recognize as reasonable.”

As to Count three, which alleged that Anthony had possessed a “device primarily useful for the purpose of the surreptitious interception of oral communications (referring to the video camera mounted on the top of his helmet), the Judge found that the Indictment failed to establish that Anthony possessed any such device. The Judge noted that under the State’s theory of which devices were prohibited under the statute, his own pocket size recorder would be illegal, as would “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices.”

Finally, the Judge concluded that Count seven, which alleged a violation of a law prohibiting the intent to film a traffic violation, should also be dismissed because the statute was facially unconstitutional in that it criminalized otherwise protected activity (filming public activity).

Joshua Treem, a partner at Shulman, Treem, Kaminkow & Gilden, and one of the pro bono lawyers for Graber, said that Judge Plitt’s opinion “implicitly recognizes the danger that can flow from giving police and prosecutors the unrestrained ability to bring these types of prosecutions, and quite appropriately clarifies that they are improper.”

John Stewart, a Partner at Crowell & Moring, and another pro bono counsel for Graber said, “Today’s opinion is consistent with opinions from around the country that have protected citizen’s ability to record and document what public officials do, and that ability is central to a free society.”

On March 5, 2010, Anthony Graber was riding his motorcycle on Interstate 95, and was confronted by a plainclothes Maryland State Police trooper as he came to a stop at an exit. Graber had a video camera prominently mounted on his helmet to record his ride, and the camera recorded the officer’s actions and statements at the outset of the encounter, which ended with Graber receiving a ticket for speeding. Five days later, Graber posted a video on YouTube showing the encounter, in which the state trooper leaps out of his unmarked vehicle, not in a uniform, and with his gun drawn, yelling at Graber for several seconds to get off of his motorcycle before identifying himself as a police officer.

On April 7, after seeing the video online, the State Police obtained an arrest warrant charging Graber with a violation of the state wiretap law. Based on the wiretap charges, the State Police also obtained a search warrant authorizing them to seize all of the Graber family’s computers, hard drives, and thumb drives, along with Graber’s video camera. Several weeks later, the Harford County State’s Attorney obtained a grand jury indictment adding several additional motor vehicle charges, and additional wiretap violations, including one alleging possession of “a device . . . primarily useful for the purpose of surreptitious interception of oral communications,” referring to the widely sold and clearly noticeable video camera that had been mounted on Graber’s motorcycle helmet.

The ACLU believes that police officers doing their jobs in a public place, such as an interstate highway, cannot reasonably claim that their communications are private. This is especially true for highway stops, since many police departments – including the Maryland State Police – record the stops themselves.

Graber, a Staff Sergeant in the Maryland Air National Guard, and a computer systems engineer, had faced up to 16 years in prison if convicted on all of the charges, along with the loss of his job if convicted of any of the wiretap charges, each of which was a felony with a maximum penalty of five years in prison. Graber lives in Harford County with his wife and two young children.

Graber was represented by pro bono lawyers Joshua Treem, David Weinstein, and Nicholas Vitek at Schulman, Treem, Kaminkow & Gilden in Baltimore, John Stewart, Ann Mace, and Cynthia Kendrick at Crowell & Moring in Washington, D.C., and David Rocah at the ACLU of Maryland.

To read the decision and see additional information about the case and the legal issues, go to: www.aclu-md.org/aPress/Press2010/092710_Graber.html

The YouTube video can be found online: www.youtube.com/watch?v=BHjjF55M8JQ or www.youtube.com/watch?v=G7PC9cZEWCQ&NR=1

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