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Hullabaloo


Tuesday, July 27, 2010

 
Suppressing Evidence

by digby

It looks like this is going to be crazy Tuesday. Get a load of this:

The ACLU of Maryland is defending Anthony Graber, who potentially faces sixteen years in prison if found guilty of violating state wiretap laws because he recorded video of an officer drawing a gun during a traffic stop. In a trend that we've seen across the country, police have become increasingly hostile to bystanders recording their actions. You can read some examples here, here and here.

However, the scale of the Maryland State Police reaction to Anthony Graber's video is unprecedented. Once they learned of the video on YouTube, Graber's parents house was raided, searched, and four of his computers were confiscated. Graber was arrested, booked and jailed. Their actions are a calculated method of intimidation. Another person has since been similarly charged under the same statute.

The wiretap law being used to charge Anthony Graber is intended to protect private communication between two parties. According to David Rocah, the ACLU attorney handling Mr. Graber's case, "To charge Graber with violating the law, you would have to conclude that a police officer on a public road, wearing a badge and a uniform, performing his official duty, pulling someone over, somehow has a right to privacy when it comes to the conversation he has with the motorist."

The ACLU has posted a fact sheet (PDF) about this case.

You can see the video here.

This isn't the only incident. It's a trend:
In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

There's no reason that police officers should ever have an expectation of privacy when dealing with the public. Ever. The mere idea of it is authoritarian. I realize that videos and audio tapes don't always reflect the context, but the burden of proof is on the government, not the citizen and police have to factor that into their behavior.

Police have a very difficult job. They should be paid very well, have many benefits and be allowed to retire with good pensions at a fairly early age, a package which most of them have (thanks to unions) and which no one begrudges them. The stress level is extremely high and the dangers are many. But being a police officer requires a specialized set of skills that includes being able to govern their emotions and use common sense in difficult situations. Trying to suppress evidence of when they fail to do that is both illegal and immoral. And it flies in the face of American values on all sides of the tribal political divide. Let's hope the courts don't decide that we need to ratcvhet up the police state by siding with officers who hope to cover up their unprofessional and illegal behavior.


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