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May 21, 2010

Recording in public

After I wrote a column and blogged about the motorcyclist who recorded his traffic stop with a Maryland State Police trooper -- and then got charged with violating the state's wiretap laws -- I heard from lots of people that I had missed the mark.

And it appears I had. I learned more information after a Baltiore police officer was caught on camera imploring the photographer at the Preakness to leave the scene of an arrest and turn off his video because he was breaking the law.

I had talked with state police officials, prosecutors and several defense attorneys (including one who was a former federal prosecutor). All told me that it appeared the Harford County State's Attorney was interpreting the law correctly, though most disagreed with his decision. His reading of the law is that it's illegal to record the voice of anyone without their consent, even in a public place.

(Cops get caught on tape all the time. Here is a compilation of some footage of a city officer berating a skateboarder at the Inner Harbor and Prince George's County tactical officers beating a student).

Turns out there does appear to be an exception for intercepting voices in public places, though the law isn't that explicit. The laws you cannot "wilfully intercept oral communicatons" and it defines oral communications as "any conversation or words spoken to or by any person inn private conversation."

That would appear to mean that if you record a person at the Inner Harbor without their consent, you're not breaking the state's wiretap law. That's how former Maryland Attorney General J. Joseph Curran Jr. interpreted it in an opinion that the current holder of his job points to as the blueprint:

"Statements that a person knowingly exposes to the public are not made with a reasonable expectation of privacy and therefore are not protected as 'oral communicatiions' under the state and federal wiretap laws."

Of course, now you can start parsing what is conversation exposed to the public? Seems that virtually anything that happens at the Preakness is public -- I mean how can you reasonably expect privacy at a drunk-fest attending by nearly 100,000 people. But what about the traffic stop? It occurred on a public road but can the officer legitimately claim that he had an expectation of privacy while talking to the driver? The Maryland ACLU says no, that the officer has no expectation of privacy while performing his duties.

Seems there's plenty left for the lawyers to do.

But aside from the law, I hear complaints all the time for from people who say they were told to stop filming police officers or told to stop photographing crime scenes. One explanation that is routinely given is that the person is interfering with the investigation. That certainly can be true, but it doesn't seem that way in the Preakness case.

There was a fairly large crowd that watched officers scuffle with a woman and ultimately arrest her. The officer singled out the man with camera, who appeared to be as far back as everyone else. Here's what the officer said: "Do me a favor and take a walk. Now. Do me a favor and turn that off. It's illegal to record anybody's voice or anything else in the state of Maryland."

Baltimore police spokesman Anthony Guglielmi, who says the law appears muddled, insists that the officer was not giving an order but merely asking a favor. Watch the video and decide, but to most people, the officer's tone, body language and terse voice makes this a command. Gugliemli notes correctly that the cameraman was not arrested, the camera was not seized and it appears that he continues to film for a few moments after the officer spoke with him.

Still, for the ACLU's attorney David Rocah, the intent was clear: the officer intimidated the photographer to stop recording by threatening him with a crime that does not exist. For him, that is part of a pattern of behavior by cops to bar people from filming them.

The ACLU has taken up the case of the motorcyclist. Not only does the group contend he had every right to record the stop, but they say they plan to argue that state police charged him only to retaliate for posting the humiliating video on YouTube. Police told me they charged him after the video appeared only because that's how they discovered the stop had been taped.

That trial is scheduled in Harford County on June 1.

Posted by Peter Hermann at 7:37 AM | | Comments (7)
Categories: Confronting crime, Courts and the justice system


There was a 2nd cell phone video of this Preakness incident. The police demanded the cell phone from the witness and returned it 7 minutes later with his entire cell phone erased. Of course the Police are denying this statement.

I'm no expert, but it seems to me that recording something in a public place is fair game unless it is the government recording a suspect (4th and 5th amendements to the constitution bar that).

However, there's a certain 'reasonableness' that I think we can all apply: In the case of the motorcyclist, the Trooper asked him if he was being recorded, and the motorcyclist said 'no'. That's a crime, IMO. Had he said 'yes' then no harm, and the recording is legal.

The recording at the preakness certainly seems legal to me.

"... it's illegal to record anybody's voice or anything else in the State of Maryland..."
-unidentified Baltimore Police Officer

That was an outright lie. He lied. He lied. He lied. Not only did he lie. He violated that cameraman's civil rights. He broke the law. He broke the law in the execution of his office. But of course, we are told Baltimore Police must break the law to enforce the law. That's not law enforcement; that would be lie enforcement, a genetic trait of the BPD.

This ones going to come back and bite them too. Cameraman has a solid civil case. Plenty of witnesses to ID the perpetrator. We will be hearing about this one as well. -Love it!

Doesn't Pimlico have dozens of security cameras? Where's that footage? To Baltimorean, believe it or not cops are allowed to lie while carrying out their duties. It's up to you to know your rights. They can say anything they want but if you lie to them it's a crime.

I wonder who else in "Maryland" is interpreting the law so they can listen and record whoever they please.

After the Harford County incident I looked at the Maryland law and was surprized that among all of the exceptions for "intercepting" voice communications, there was no exception for the media. Apparently everytime the local news rushes an unwilling participant in an interview, they are in violation of the law. Now we all know that that's absurd, but that's exactly what prosecutor's are saying in this case. I suppose all of our favorite reporters had better prepare themselves to be charged too.

This is crap, Cassilly needs to be impeached, and this attitude among the police needs to get crushed.

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About Peter Hermann
Peter Hermann started covering news for The Baltimore Sun in 1990, first in Anne Arundel County and, starting in 1994, reporting on the Baltimore Police Department. In 2001, he was assigned to Jerusalem as the Baltimore Sun's Middle East correspondent. He returned in 2005 as an assistant city editor overseeing crime coverage. In 2008, Peter returned to the beat as a daily reporter and blogger. A recent BBC report featured him in a segment on the harsh realities of covering crime in Baltimore.

Coverage will focus on crime trends, problems in neighborhoods in the city and elsewhere, profiles of victims and police officers and try to offer readers a fresh perspective on one of the most vexing issues facing Baltimore and its future.

Contributing to this blog is Justin Fenton, who joined The Sun in 2005 and has covered the Baltimore City Police Department and the criminal justice system since 2008. His work includes an investigation into Cal Ripken Jr.’s minor league baseball stadium deal with his hometown of Aberdeen, a three-part series chronicling a ruthless con woman, coverage of the killing of five Amish children at a schoolhouse in Nickel Mines, Pa., and a job swap with a British crime reporter to explore differences in crime-fighting. A special report looking into how city police handle rape cases led to sweeping reforms that changed the way sexual assaults are investigated in Baltimore. He was recognized as the best reporter in Baltimore by the City Paper in 2010 and by Baltimore Magazine in 2011.

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