The facts are disturbing.  A plainclothes police officer pulls over a motercyclist for speeding on an interstate highway by waving a gun before producing any identification.  The motorcyclist captured the incident on tape with a camera in his helmet and posted the video on YouTube.  And remarkably the prosecutors throw the book at the motorcylist for having the temerity to record a public official in a public space, using wiretap laws intended to protect individual privacy.

Anthony Graber faced 16 years in prison for recording a public act while plainclothes officer Uhler’s irresponsibility in drawing his gun without producing any identification was defended as “appropriate” because the gun was never pointed at Graber.  The double standard on privacy does not seem to have bothered police or prosecutors.  Law enforcement regularly and aggressively challenges the rights of defendants to privacy, sometimes in their own home.  But these standards evidently did not apply to the men wearing the badge.

The last decade has seen a steady erosion of civil liberties.  However, today common sense won out.  Today Judge Emory A. Pitt, Jr. dismissed charges against Graber noting that “[T]hose 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?”).”  The judge dismissed the expectations of privacy by noting that the acts “took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.”

The good judge also noted that the prosecution’s interpretation of the video camera on Graber’s helmet as a “device primarily useful for the purpose of the surreptitious interception of oral communications” would make “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices” illegal.

So Graber walks free and Maryland’s effort to prevent private videotapes of the sort that exposed the Rodney King beating falls short for now.  In an age where President Obama invokes state secrets to reserve to right to assassinate an (admittedly vile) US citizen, it is a rare victory for liberty and common sense.

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Aj on 3 October, 2010 at 9:15 pm #

Ahem! a rare victory against prosecutors gone bezerk…


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