Officers’ Right to Privacy When Being Recorded in Public

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In March of 2010, Anthony Graber was charged with felony violation of the Maryland wiretapping law. Mr. Garber was confronted by a plain-clothes police officer, Joseph David Ulher, for speeding and recklessly driving his motorcycle. Mr. Garber had a video recording device on his helmet, recording his drive. When Mr. Garber was confronted by Officer Ulher, he neglected to tell him that the device on his helmet was recording the interaction.

Mr. Garber felt that the confrontation by Officer Ulher was excessive, since Officer Ulher confronted Mr. Garber with his sidearm drawn. After the confrontation, Mr. Garber posted a video of the incident to YouTube. Within days, Mr. Garber was charged with violating Maryland’s wiretapping statute. Ultimately, most of Mr. Graber’s charges were dismissed.

Mr. Graber’s experience brought to light the state’s wiretapping law and how prosecutors and law enforcement interpret the law, usually to their benefit. Although this encounter took place five years ago, there still remains questions regarding civilian rights when it comes to videotaping an on-duty police officer.These two incidents in Baltimore County serve to further illustrate the legal murkiness involved here.

There is another video of an arrest during the Preakness Stakes, where a Baltimore police officer tells the person video-taping, “Do me a favor and turn that off. It is illegal to record anybody’s voice or anything else in the state of Maryland.” This is untrue, but it seems that law enforcement has continued to perpetuate this interpretation of the Maryland wiretapping law.

Although Maryland is an “all parties consent” state, the law includes a privacy provision. This provision means that if a non-consenting party does not assume that the conversation being recorded is private, then the wiretapping law has not been violated.

Across the county, courts have determined that there should be no inference of privacy in open public areas. An example of this is that you can video tape or photograph someone in open public areas without their explicit consent.

During the incident involving Mr. Gaber and Officer Ulher, in order for Mr. Garber to be charged it would have to have been deemed that Officer Ulher during the traffic stop, in a public space, doing his duty had a right to privacy during the interaction he was having with Mr. Gaber. There are no Maryland court rulings that accord a law enforcement police officer a right to privacy when on-duty while interacting with the public.

While Mr. Gaber was ultimately cleared of any wrongdoing in connection with the wiretapping charges, it seems that prosecutors and law enforcement continue to crack down on citizens who videotape on-duty police officers; even though their legal justification is debatable.

With a smartphone in practically everyone’s pocket, civilian monitoring of on-duty police officers can be conducted with ease; and with social media becoming an integral part of our lives, posting videos and photos of on-duty police officers’ interactions with the public is accomplished with a few taps.

In our connected, modern society it is imperative to know your rights when you decide to video tape an on-duty police officer and post the video online. You should know that you are protected by the law and should you face any kind of retaliation that you have the law on your side.

Seth Okin is a criminal defense attorney in the Baltimore area with Price Benowitz LLP, a law-firm in Maryland, D.C., and Virginia. Mr. Okin handles a range of cases, from serious felony cases to first time DUI cases.




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