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Earlier this year, Anthony Graber was charged with violating Maryland’s wiretap law for videotaping a traffic stop. Yesterday, a Harford County judge dismissed the charges, ruling that police officers do not have an expectation of privacy on the job. We’ll learn more about the ruling and its likely impact on Maryland’s notoriously strict wiretapping laws.
- David Rocah Staff Attorney, American Civil Liberties Union of Maryland
Anthony Graber’s video of a plainclothes Maryland state trooper pulling him over that resulted in the felony charges against him that were dismissed earlier this week:
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, filling the hours after the final bell rings, a look at effective after school programs. But first, an update to a story we discussed back in June. Maryland resident Anthony Graber, not Eric Graber but Anthony Graber, got in big trouble earlier this year after video recording a traffic stop. The state trooper who stopped him was in plain clothes and waived a gun at Graber before identifying himself as police. Graber posted his video of the encounter on YouTube and was later charged with violating the states' wiretap law, a felony. But earlier this week, a Harford County judge dismissed those charges, ruling that law enforcement officers do not have an expectation of privacy while on the job. The case is being closely watched by civil liberties advocates.
MR. KOJO NNAMDIAnd we wanna know what you think. When is it okay to record another person, especially a public official? What constitutes public space? And what's private in an era when cell phones and flip cams are now so common? You can start calling us now at 800-433-8850 or shoot in an e-mail to firstname.lastname@example.org or making your comment at our website kojoshow.org. Joining us by telephone from Baltimore is David Rocah. He is a staff attorney with the American Civil Liberties Union of Maryland. He was one of the attorneys who represented Anthony Graber in the wiretapping case against him. David Rocah, thank you for joining us.
MR. DAVID ROCAHThank you so much for having me, Kojo.
NNAMDIDescribe, if you would, what happened between Mr. Graber and the trooper of -- on that day that Mr. Graber was stopped for speeding on I-95.
ROCAHWell, it was a fairly routine traffic stop. The only thing unusual about it is that Anthony Graber had a GoPro video camera mounted on top of his motorcycle helmet and he was recording his motorcycle ride, something that, I gather, motorcyclists not infrequently do. So when he was pulled over by the state trooper for speeding -- there were two troopers involved, one in an unmarked unit and one in a marked unit. The one in the unmarked unit pulled in front of him at -- on the exit ramp from I-95, and essentially cut him off. And the trooper then leaped out of his unmarked car in plain clothes brandishing a pistol and shouting at Mr. Graber to turn off the motorcycle. And it wasn't until several seconds in that he identified himself as a state trooper. Ultimately, the -- he was -- Anthony was given a ticket for speeding, for doing 85 in a 65 mile-an-hour zone and sent on his way.
NNAMDIAnd then went home and posted the video of the encounter on the web.
ROCAHHe did. Several days later, he posted. He had -- because he had been recording his ride, the video camera, which was still recording when he stopped, recorded the trooper getting out of his car, et cetera, and he then posted that, an excerpt to -- of -- that excerpt of his longer ride on YouTube and it generated a fair amount of negative -- well, of mixed commentary about the state police. A fair number of people criticizing the state trooper for not having identified himself as a trooper immediately or for not wearing a badge, a visible badge, other people coming to the trooper's defense. And you know, all of that is, of course, what makes this country great. Everyone can express their opinion on everything and anything, whether...
ROCAH...they think about it or not. (laugh)
ROCAHAnd then several weeks after the video was posted on YouTube, the state police obtained both an arrest warrant and a search warrant from a district court judge in Baltimore County charging Mr. Graber with violating the states' Wiretap Act which prohibits the interception of all communications. And I'll explain that more in a minute. And with those warrants, they came to his house early in the morning, seized all of his family's computers, hard drives, flash drives and video equipment. And Graber was, ultimately, arrested and charged with several counts of violating the state's Wiretap Act and, ultimately, then superseding indictment, charged him with both the illegal interception of the communication, illegal dissemination of the communication, meaning posting it on YouTube, and possession of a device (unintelligible)...
NNAMDIThis is the one I like most.
NNAMDII like this one most, a device primarily useful for the purpose of surreptitious interception of oral communications.
ROCAHExactly. Referring to his video camera, which is one of the top-selling video cameras on Amazon.com. And also charged him with violating a very unique state statute which makes it a separate crime to commit a traffic violation with the intent to film it. And I can talk more about that. The judge also dismissed those charges as well.
NNAMDIYeah, talk about that last crime right now 'cause I'm not really familiar with that one.
ROCAHA few people are. And I confess that until this case, I wasn't (laugh) either. It's a statute that the Maryland legislature passed just a few years ago.
NNAMDICould you repeat what it says, will you?
ROCAHThe statute makes it a crime to commit -- I mean, I'm oversimplifying a little bit...
ROCAH...but it essentially makes it a crime to commit a traffic violation with the intent to film it. And we argued that while, of course, the state can make traffic violations a crime and can set the penalties for those, and, you know, we would have nothing to say about that. The state cannot make it a separate crime to film something whether that something is or is not illegal as long as it's public activity.
NNAMDIWhat's the crux of the rest of the argument that you made on Anthony Graber's behalf?
ROCAHWell, the primary concern here was the wiretapping charges because Maryland's wiretap statute, like that of many states, prohibits the interception, meaning the taping, of oral communication, but the key there is that oral communication is not used in its colloquial everyday sense to mean any conversation spoken out loud between two people. It's a defined term in the statute, and it's defined as a private communication.
ROCAHNow, this is important because Maryland, unlike most states, is one of 12 states in the country that is a so-called all-party consent state. In most states in the country and under federal law, interception of an oral communication is illegal, but if one party to the conversation consents to the taping, then it isn't a crime. I did not say that very well. In most states, as long as one party to a conversation, to an oral conversation consents, then the wiretap statutes don't apply. In Maryland, all parties to an oral conversation have to consent in order for it not to be...
NNAMDISo if it's a telephone conversation between two people, they both have to consent. If it happens to be a conference call, then all participants have to consent under the Maryland law.
ROCAHRight. So Maryland is an all-party consent state, but, again, the law in Maryland doesn't apply to -- well, leave aside telephone communications because those are considered, per se, private. Okay? So what I'm talking about now are oral communications which are distinguished from wire communications. Telephone conversations are wire communications. I'm talking about oral communication, meaning face-to-face conversation...
ROCAH...spoken out loud. Maryland is an all-party consent state, meaning that if the three of us are talking, all of us have to know that it is being taped and have to consent. But, again, but -- and this is a very big but. This is the most important but. The law applies only to private communications, not any and all oral conversations. And that's what the state police ignored because in charging Mr. Graber, they had to both explicitly and implicitly assert that the police officer shouting at him to turn off his engine as part of a traffic stop while he was exercising his police powers in public on duty was engaged in a private conversation.
NNAMDIWe're talking with David Rocah. He's staff attorney with the American Civil Liberties Union of Maryland, and one of the attorneys who represented Anthony Graber in the wiretapping case we are discussing. That wiretapping case was thrown out by a Harford County judge. He dismissed those charges, ruling that law enforcement officers do not have an expectation of privacy while on the job.
NNAMDIWe're inviting your calls at 800-433-8850 or at our website, kojoshow.org. We like to know what you think when it's okay to record another person, especially a public official, what constitutes public space and what's private in this era. We invited Harford state's attorney Joseph Cassilly, who prosecuted the case against Anthony Graber, to join us today. He didn't respond by the time we went on the air, but he talked about this topic with us in June and offered this take on public versus private space.
MR. JOSEPH CASSILLYYou can have a private communication in a public place. The Supreme Court said that in a case called U.S. versus Katz where the United States placed a wiretap on a public phone and tapped the public phone while someone was speaking on it. And the United States argued, well, this is a public phone. We don't -- you know, we can put a wiretap on there. And the United States Supreme Court came back and said, well, you can have a private conversation in a public place, and that you can have an expectation of privacy. The Maryland wiretap law doesn't differentiate whether or not the persons involved in the conversation are civilians or police officers or one of each as to whether or not they should have a reasonable expectation of privacy. And, in fact, the police officers, you know, might have some reason for, you know, for wanting to be able to have a conversation without having it intercepted.
NNAMDIBefore we go to the phones, David Rocah, it would appear that this judge's ruling and dismissing the charges says it's not really about who the individual is who's having the conversation but in what capacity he's having the conversation. If he is having the capacity in pursuit of his public duties as a public official, it's a public conversation.
ROCAHThis is -- it's a little bit complicated. I don't want to sort of overcomplicate things. In general, I think you're right. The problem here I think is that Mr. Cassilly's statements sort of hopelessly confuses multiple issues. So I think it is true that the court was focused on the fact that in this case it was a police officer performing his official duties in public. That doesn't mean that no police officer could ever have a private conversation ever. For example, one can imagine...
NNAMDIIf he'd asked Mr. Graber for his phone number after making the arrest or giving the ticket because, oh, well, he may have wanted to meet his family or something like that. That would be considered private?
ROCAHNo. No, I wouldn't say that.
ROCAHI mean, he's still on the job in public and, you know, cloaked in the authority of the state in those circumstances. It's not the police officer privately asking Anthony out on a date. What I was referring to is, for example, one could imagine a police officer debriefing a confidential informant inside the station house in a locked room and that might be a private conversation.
ROCAHSo it isn't necessarily that no public official could ever -- it's not that a public official could never, ever have a private conversation...
NNAMDIWhile carrying out official duty.
ROCAHRight. I mean, we know that there are meetings that are closed and that kind of thing.
ROCAHThe key here is that public officials performing their job in public...
ROCAH...cannot claim that those are private conversations…
NNAMDIOn to the telephones then. Here is Carrie in Seat Pleasant, Md. Carrie, you're on the air. Go ahead, please.
CARRIEHi, Kojo. Thanks for taking my call. My point I want to make, which is a point that he just kinda cleared up, your guest there, is that when a public official's are in public, I mean, I don't think there is any question that all of that is public information. I mean, if this is the people's business being done by a representative of the people, the people should have the opportunity to review it. So I totally agree with the case being thrown out because I totally believe that he was on the right to be able to film that. As far as the case is solved, I think the case really is a case of the U.S. just continuing to push for this kind of public officialdom instead of public service and trying to create a space where they are the be all, end all of what's private, what's public, what you have a right to, what you don't. I think this is just more posturing by the Obama administration and his representatives to continue some of the Bush policies of...
NNAMDIYou lost me somewhere there. I don't understand the relationship between what happened in Maryland, the case we're discussing and what the Obama administration is trying to do.
CARRIEJust in general in terms of him reinstating or reinforcing respective orders where basically secrecy is kind of a new cornerstone of official business here, where you can have, you know, secret arrests and extraditions and all these other things. And I think this is just kind of in that same vein that is something that's been happening since the Bush administration, and I think that's what's emboldened state officials to do that same thing. So I'm glad this court case was solved the way it was because I think that is the right way...
NNAMDIDavid Rocah, you care to comment on that?
ROCAHWell, I do think that part of what was going on here with state police was an attempt to intimidate people from doing what I think they have both a statutory and constitutional right to do, which is document official behavior. I can understand why...
NNAMDIAnd you seem to imply earlier that one of the things that brought -- that caused these charges to be brought had to do with the comments to the YouTube video that Anthony Graber posted. You seemed to imply or I certainly seem to infer that that apparently annoyed the state...
ROCAHYeah. And I don't mean to just imply that. I mean to flatly assert it. The -- if you look at the way the state argued the motions in the circuit court, they point -- they made a very big point of repeatedly noting those comments as if that somehow should matter in anything. And of course, the people who were critical of the state police had a perfect First Amendment right to be critical, and the people who were supporting the state trooper had a perfect First Amendment right to support the state trooper.
ROCAHWhat's wrong here is for the state to think that it matters what people think about their official conduct and that how they think or that Mr. Graber's action in subjecting them to potential ridicule is a basis for charging him with a crime...
NNAMDIOkay. Thank you very much for your call, Carrey. We move on to Andy in Westminster, Md. Andy, you're on the air. Go ahead, please.
NNAMDIHi, Andy. Are you there? Andy, I can't hear you, so we're going to have to move on to Anton in Rockville, Md. Anton, you're on the air. Go ahead, please.
ANTONHi, Kojo. I just wanted to talk about when it's actually important to videotape your public officials.
ANTONI'm a student at the University of Maryland, College Park, and last semester at the Duke riot games, a lot of students were indicted with either riots, rioting or resisting police arrest.
ANTONAnd one of the things that happened was a video camera footage from either people's cameras or security cameras came out and showed that either A, these people weren't rioting, they were just trying to move along their way and follow police officers orders, or B, there were instances of police brutality against the students and some of the people indicted for rioting actually got off because of the videos that came out.
ANTONAnd I know that – I guess this is my question too if there's this fear among students that they won't be able to tape police officers who do these kinds of egregious crimes without repercussions. And I'll take my comment off the air. Thank you.
NNAMDIWell, David Rocah, the Maryland State Police have said that it's their job to enforce laws that are on the books, but now this court ruling seems to give them very different guidance. How do you think law enforcement should and maybe will respond to this ruling?
ROCAHWell, let me say two things quickly if I can.
ROCAHI think that your caller's point is a very important one about why the ability to do this is so important because -- especially when you're dealing with encounters with the police or assertions of impropriety by the police. If there isn't an independent record, one that isn't subject to accusations of bias, faulty memory, faulty perception, meaning a videotape or an audiotape, then it is almost always the case that police cannot and will not be held accountable because they come to these conflicts with a built-in advantage of credibility and most people are perhaps appropriately willing to take the officers word over the citizen's word. And so without the ability that -- to create this independent record, we simply can't hold public officials accountable.
ROCAHAs to what -- as to the state police statement that we're only enforcing the law, I wanna say two things. First, while it is true that this is the first time, to my knowledge, that anyone in Maryland has actually been prosecuted under these circumstances for reporting their encounter with the police, there is -- there never was any credible basis for the police to assert that doing so was illegal because it's frankly ridiculous, which is what the judge found though he didn't put it as strongly as -- as I'm putting it now.
ROCAHBut it's frankly ridiculous to assert that public officials have an expectation of privacy in their public on-the-job communication. And no court anywhere in the country, ever in the history of the United States, has ever found that they do, and this issue has come up plenty of times in other courts around the country. So I wanna be clear, first of all, that they weren't simply enforcing the law here and acting in good faith. But now that we have a very clear and strong opinion from a circuit court judge here in Maryland, I hope that any departments that have not yet properly instructed their officers, that they are not to interfere in citizens' rights to tape them, video or audio, while they're publicly performing their duties...
ROCAH...that they will now instruct them (unintelligible) by the way...
NNAMDIWhat's the likelihood -- what's the likelihood or possibility that that ruling will be appealed?
ROCAHThere is a possibility and, you know, that's up to the attorney general's office and to the state's attorney and we'll see what happens. If it is appealed, we will of course continue to make our arguments in the appellate courts, and I fully expect that if that happens that we will win because I really think that the issues here are very clear and very important.
NNAMDII'm afraid that's about all the time we have, David Rocah.
NNAMDIThank you very much for joining us.
ROCAHWell, thank you so much for having me.
NNAMDIDavid Rocah is a staff attorney with the American Civil Liberties Union of Maryland, one of the attorneys who represented Anthony Graber in the wiretapping case against him. We're gonna take a short break. When we come back, filling the hours after the final bell rings, and look at effective after school programs. I'm Kojo Nnamdi.
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