Making a recording of a police traffic stop is not a crime in the opinion of Maryland’s attorney general. In a ruling issued last month from the state’s top law enforcement office, Chief Counsel Robert N. McDonald found the legal grounds weak for felony wiretapping charges of the type brought against a motorcyclist who posted a video of himself being arrested on YouTube. Maryland State Police had taken advantage of ambiguity in the law to prosecute Anthony Graber, 25 for the April 13 recording.
“No appellate decision in Maryland specifically addresses the application of that law to recording of police activity,” McDonald wrote in his opinion.
Graber had been stopped for speeding on Interstate 95. While driving an unmarked car in plain clothes, Maryland State Trooper Joseph David Uhler cut off Graber as he brought his motorcycle to a stop. Uhler then jumped out of his car, gun drawn, commanding, “Get off the motorcycle” before identifying himself. Graber had a camera on his helmet that recorded the entire incident, which he later posted on YouTube (view video). The sight of Uhler wielding his weapon in public over a traffic infraction drew a storm of criticism. Uhler responded by ordering his colleagues to raid Graber’s residence and confiscate all of his computer equipment as evidence of wiretapping. By filing charges that could send Graber to prison for sixteen years, the state police wanted to send a clear message to anyone who might consider documenting police misconduct in the future.
Under the interpretation of the state police and prosecutors, a police officer has an expectation of privacy while working on public streets. Ordinary citizens on those same streets, however, have no such expectation and are subjected to constant monitoring by the state’s red light cameras, speed cameras and recently expanded automated license plate recognition systems. The attorney general’s office examined the question of whether the conversation in a traffic stop constituted an “oral conversation” that is “intercepted” under the wiretap act if a citizen records the arrest. After considering a related attorney general ruling from 2000, McDonald ruled that there is no difference between a police officer and a citizen as far as the statute is concerned.
“The reasoning of that excerpt, which suggested that a police officer would not face prosecution or liability under the act for recording an arrest or traffic stop in a public place, would apply equally well to a private person involved in the same incident,” McDonald wrote.
Several other states, with the exception of Massachusetts, have developed case law that clearly allows the recording of police traffic stops. The attorney general’s ruling did not directly consider the details of the Graber case, but it concluded that the most likely outcome should it come to trial would be acquittal.
“A court could hold that a police stop of an individual necessarily is not a ‘private conversation’ and therefore does not involve an oral communication covered by the state wiretap act,” McDonald ruled. “This conclusion would be consistent with the suggestion made in the 2000 opinion and with the holdings of the courts in most other states construing state eavesdropping statutes. Given the language of the Maryland statutes, this seems the most likely outcome in the case of a detention or arrest.”
A copy of the decision is available in a 1.3mb PDF file at the source link below.
Source: 
On the Maryland Wiretap Act (Attorney General, State of Maryland, 7/7/2010)
[Courtesy: Thenewspaper.com]
Editor’s note: For an another perspective on this issue, check out Radley Balko’s interview with two prosecutors and a police officer who defend the police’s right to arrest citizens who videotape them, over at Reason.com.
I’m surprised it had to go this far. With just about every LEO group out there taping traffic stops, it seems that it would have to be legal for the public to do the same.
So, does this invalidate the legality of the recording of Rodney King getting the stuffing knocked out of himself by a bunch of thug cops? I doubt it. This one is ripe for a Supreme Court ruling.
BTW, from my former experience, and I’m glad it’s former, Maryland is one of the best (or worst) examples of a “police state” that I have ever encountered; makes me glad that I left there many years ago.
I wonder how much stuff was confiscated during the search and how much of it he will get back.
Radley Balko wrote a detailed piece about this (and two other) prosecutions.
http://reason.com/archives/2010/08/09/police-officers-dont-check-the
“But that opinion [The AG’s opinion, referenced in the TTAC post above] isn’t legally binding, and may not affect Anthony Graber’s case. In fact, when I spoke with Cassilly [The prosecutor on Graber’s case] (we talked before Gansler’s opinion), I asked him about a 2000 Maryland AG’s opinion stating that motorists have no privacy expectations during a traffic stop. Cassilly replied, “Those opinions are just the attorney general paying some lawyers to tell him what he already thinks. I don’t have to agree with it.”
Anyone at all interested in the evolving role of police in our society would do well to check out Balko’s work at Reason.com and at theagitator.com. I linked to the piece you reference in the “Editors Note” at the end of the post, because it is one of the best pieces on this topic around. Thanks for helping highlight Balko’s high-quality reportage!
There’s some parallels to the Brent Darrow case in Missouri a few years back. The difference here is that Maryland officers actually attempted to be aboveboard, where the officers in Missouri had to be a bit more underhanded.
The Comedian, thanks for the Reason link.
As I said somewhere below, as long as it doesn’t interfere with my ability to do my job or create a safety hazard, I don’t have a problem with being recorded while I’m working.
This is not a smart position:
“The only person doing any harassing here is Mr. Allison, who was harassing our public officials with his tape recorder,” [Crawford County State’s Attorney Tom] Wiseman says. “They may have problems with some bad police officers in some of your urban areas. But we don’t have those problems around here. All of our cops around here are good cops. This is a small town. Everyone knows everyone. If we had a bad police officer here, we’d know about it, I’d know about it, and he’d be out. There’s just no reason for anyone to feel they need to record police officers in Crawford County.”
I have to admit if someone headed me off and came out of their car wielding a gun like that I would run them over trying to get away. What would you guys do?
While I don’t agree with the motorcyclists style of riding, I think its safe to say that a plain clothes officer in an unmarked vehicle should identify himself before wielding a gun and ordering someone off their bike.
Chalk one up for The People, wooo hooo!!!
I think that brings the tally to:
People 1 – Government 234,990,217
The end result should be that the trooper and the state are sued and a sizeable award will go to the motorist.Police are required to identify themselves, and having a gun drawn for a traffic stop only, is just inexcuseable. The trooper should be fired immediately. The motorist hopefully will still recieve a ticket for speeding.
You mean the taxpayers pay the legal bill and the punitive damages? No thanks. I’d rather see the trooper be docked 3 months pay or lose his job completely. If proven in court, the trooper should bare the responsibility for his actions, not the general public.
geez, how fast was he speeding?
There is no mention of the circumstances of the traffic stop. How fast was the biker going? Was he attempting to run before being cut-off? I’ve seen bikes on highways doing in excess of 100mph. Seeme to me that if the guy had a camera on his helmet he was probably taping his speed run to show his buddies…..what is the rest of the story?
The circumstances of the traffic stop are immaterial to the “wiretapping” issue at hand. Riding like an ass or not, Mr. Graber wasn’t arrested until after he left the scene, went home, posted the arguably embarrassing video on the internet, then had his house raided by the MSP.
“Graber thought Uhler’s actions were excessive, so he posted the video to the Internet. Days later, police raided the home of Graber’s parents. Graber was arrested, booked, and jailed. He was charged with violating Maryland’s wiretapping statute.”
http://reason.com/blog/2010/05/29/maryland-cops-say-its-illegal
I believe here is the part before he was pulled over:
No youtube @ work…care to give details?
The perp is going 127 MPH at points during the video. An officer in plainclothes in an unmarked car pulls him over, and brandishes a large automatic immediately after getting out of his car. He exhibits the usual angry-cop face but doesn’t point the weapon at the speeder.
Scary — not just the cop’s behavior, but the knee-jerk institutional response to protect him and keep citizens from recording misbehaving cops.
The “officers right to privacy” law is probably some police union crap that protects asshats, like the officer in question here, and their bad behavior. The sooner everyone has the right to record their interactions with the police the better for everyone.
It’s not the officer’s right to privacy, it’s whether or not the state has an unambiguous law concerning recording of conversations in a public setting. In this case, it doesn’t. Or didn’t; it does now.
Legally, this is going to be interesting. We have a whole generation, and several industries, who trade on the idea that you have no reasonable expectation of privacy in a public space. There’s all sorts of precedent already building up, and it’s not going to go the way this AG or the officers would like.
In the court of public opinion they’ve already lost. Not only technology has already made it easy for this kind of thing to happen (and it’s only going to get easier) it’s effectively a given that corporate and government authorities will lose once this becomes public, and there are agencies (the ACLU comes to mind, so does the EFF) that will help ensure that.
Provisions against recording are, I think, going to become an anachronism as technology advances: Big Brother is, in many ways, balanced by “Little Brother”, and the cameras on the street-corners offset by a million cellphones with an “Upload to Youtube” button.
I don’t know, after nearly running over one of those dinks yesterday as he did a standing wheelie in the middle of Interstate 10, I can see how a cop would be *that* irritated after finally bringing a crotch-rocketeer to a halt.
As the grandson of a retired Lt. Homicide Detective from a major midwest city, who has major respect for the majorty of the LEO out there, and as a regular citizen who has also seen dick cops and felt aggressive or unfair behavior within the system, I’d like to say, that first of all, I think citizens should be able to tape the police in action – this is just another balancing check in the system that keeps borderline cops honest, and ultimately allows for justice in the case where some cop has crossed the line of what is appropriate and/or legal.
That being said, I reviewed the longer video of what the irresponsible doofus on the motorcycle was doing prior to being stopped, and I sense that there is an opportunity for fair play here…
oh, and I find it highly implausable a trooper can “order” his colleagues to do search and seizure of items within his home. But I would hope that a legal warrant was executed looking for video evidence of other crimes committed while this dude was on his crotch-rocket.
So, with turnabout being fair-play, and imagining that there is a combination of violations, or a speed achieved, at which point the operator crosses the border from a civil to a criminal violation…
So I hope the forensic types have analyzed this anti-social dick’s tape and the prosecutor uses this information to lay charges against him for everything he did like a) speeding, b) operating in an unsafe/unlawful manner, c) failure to signal, d) passing on the right, e) failure to follow at a safe distance, f) improper use of lanes, etc. and etc.
I don’t have time, but I would be interested if someone did the following analysis to determine max achieved speed:
– assume traffic moving between 60 and 75mph,
– determine stripes/sec (use YouTube timer) for a) pacing traffic condition, and b) from the time he passes the bus on the right, for the short period he was hauling a$$ (pay attention to the red needle, I assume it is the tacho, and try to limit this period to the time the needle is steady state and assume the bike to be in top gear),
– then do the proportionality calculation to calculate the max speed based on the base assumption…
Thank you.
The guy was going way too fast, but I think you’re overstating the wrecklessness of it. I’ve got no patience for the weaving bumper hogging riding I see all the time, but the speeding and passing on the right comes up a bit short of anti social dick. Plus, the rider admitted he deserved the ticket, and he pulled over as soon as they were behind him (guessing, but it seemed that way on the tape).
The comments about the drawn weapon are valid, but the everyone is forgetting the Crown Vic right behind the bike, which is probably what kept the rider from thinking it was anything other than a police pull-over.
Also worth noting, passing on the right is perfectly legal in Maryland (and most other states) as long as it is done on a road with at least lanes going the same direction, as was the case here.
The Maryland AG did the right thing by noting that the case would most likely end in an acquittal.
My question now is whether the state is willing to reimburse a US citizen for what was nothing more than harassment by the police. The police have an interest in protecting their own and bullying those that believe the law protects those charged but not proven guilty. The fact that they were given a warrant to search his house (making the maximum amount of mess, natch, as a “warning” to those who would do the same) only shows how out of control our government has become.
It is a miracle someone did not get shot. That public servant who assaulted the motorcycle rider is fortunate he chose to illegally brandish his weapon in Maryland where the citizens’ concealed carry rights are profoundly restricted.
Oh, yes, because arming everyone is exactly the solution you want. People never, ever get pissed off or afraid and act inappropriately.
Instead of one trigger-happy flake with bad judgement, you’d have two.
Psarhjinian:
No, you won’t get two trigger-happy flakes with bad judgement.
Experience has shown that people who make the effort to earn concealed carry permits are very careful to stay out of trouble both with the police and with other private citizens. Their record in this regard is actually better than that of the police.
Someone dumb enough to go that fast on a crowded public road is also dumb enough to carry illegally and try to shoot it out with the officer who stops him. People like that either won’t bother to earn a permit or are ineligible because of their past bad behavior. They are the ones that legal permit holders want to protect themselves against.
“It is a miracle someone did not get shot. That public servant who assaulted the motorcycle rider is fortunate he chose to illegally brandish his weapon in Maryland where the citizens’ concealed carry rights are profoundly restricted.” – john.fritz
Before anyone fires up for a 2nd Amendment debate, please realize that the above statement is quite silly. There’s already too much conjecture about what the trooper and motorcyclist were doing and what their motivations were. No need to drag concealed carry into the mix.
“You mean the taxpayers pay the legal bill and the punitive damages? No thanks. I’d rather see the trooper be docked 3 months pay or lose his job completely. If proven in court, the trooper should bare the responsibility for his actions, not the general public”
Yes, unfortunately I do. Only public outrage will stop this type of behaviour, and nothing outrages the public more than having to pay for LEO abuse. Believe me, I wish it wasn’t so because as a taxpayer I hate to see money wasted like this, and I surely hate to see this speeder get a payday, but waving a gun around, and then raiding the guys house is inexcuseable. The trooper probably does not have enough assets to pay a reasonable verdict. The object here is to ensure it never happens again. Large judgements tend to do that.
At what time point in the video was the trooper “waving a gun around”?
I don’t want to debate this incident, as there are several separate issues involved, and I know from experience that whatever I say won’t have an impact on people’s opinions.
I have some advice, though. If you feel the need to record a police activity and you’re involved in it (such as the occupant of a car in a traffic stop), don’t do anything without getting permission first. Before I get flamed, let me say that I routinely have people record my activities (I’m usually recording myself), and I welcome the scrutiny. That said, I don’t allow anyone to reach around themselves or their vehicle to get their recording device. If you want to do something like that, ask the officer, and they probably will accommodate you by getting the item for you or allowing you to get it yourself. Grabbing for something will likely lead to a misunderstanding and some intervention by the officer, all of which probably could’ve been avoided. If someone already has their recorder on when I approach them, as long as it doesn’t interfere with my investigation or cause a safety concern, I don’t mind a bit.
Bear in mind that even though _you_ may not understand an officer’s actions at the moment, their actions may in fact be perfectly legal and prudent. Quite often, I take the time to answer questions once the excitement is over, and taking the time to do so usually clears up any misunderstandings. If you don’t agree with the charge and want to argue your case, go to court. That’s the way our system operates, and trying to argue your case curbside will rarely do you any good. If you don’t agree with an officer’s behavior, lodge a formal complaint with their agency.
1) As far as the motorcycle rider was concerned, this is just some stranger pointing a gun at him. It would’ve been totally reasonable to run him over, or jump off the bike and run. Even claiming to be a cop, which he didn’t do at first, isn’t enough.
2) The bigger concern is this “wiretapping” issue. What an assault on freedom this is. This is clearly nothing like wiretapping. Furthermore, cops work for the public, and when they’re out in public doing their jobs, they should have zero expectation of privacy, just as ANYONE in public has no expectation. But it is especially bad when it’s someone working for the public. It’s not as though this guy was intercepting phone calls or planting bugs in the cop car- he was just recording whatever was happening right in front of him. The ONLY “justification” for this is to scare people into not reporting abusive and corrupt cops.
At what time point in the video was the trooper “pointing a gun at him”?
You’re splitting hairs. The point is it’s some random dude in a random car jumping out brandishing a pistol. You don’t draw a pistol because the weight is uncomfortable on your belt.
I’m not splitting hairs. Take it from someone that carries a gun for a living, there’s a big difference between pointing a gun at someone versus drawing one and holding it at a low-ready position. Another poster stated that the trooper was “waving his gun around”, which is equally false.
I believe some of The Truth About Cars B&B actually care about truth. If you don’t like what the trooper did, fine by me, but there’s no need to make false statements.
I’m not splitting hairs. Take it from someone that carries a gun for a living, there’s a big difference between pointing a gun at someone versus drawing one and holding it at a low-ready position.
But most people don’t carry guns for a living and they don’t know the there’s a big difference between pointing or waving a gun and holding at a ‘low-ready position’ — it appears to be a deadly threat, especially coming from somebody jumping out of an ordinary car wearing street clothes.
There was NO reason for the cop to pull his gun. And ‘that the cop felt angry’ particularly can’t be accepted as a justification (cops who draw their guns when they’re pissed off and want to intimidate don’t belong on the force). He should have been fired immediately.
Slocum, you can’t have it both ways. You state that “[M]ost people don’t carry guns for a living and they don’t know the there’s a big difference between pointing or waving a gun and holding at a ‘low-ready position’”, then you flatly state, “There was NO reason for the cop to pull his gun.” I can think of some valid reasons for the trooper to pull his gun, but since you (and others) can’t, I must be wrong.
You acknowledge that most people don’t understand the trooper’s actions, but you also condemn the very actions. Guess what? We have a legal system to address these issues because they cannot be left up to a layperson’s interpretation of everything. Amidst all the bashing here, there’s been very little regard to the direct evidence presented in the video. I’ve obviously failed to make my simple point, and I concede defeat to the masses.
So, if I jumped out of my car, readied my pistol, and began approaching you with a pissed-off look on my face, you’d think that is fine and dandy?
Regardless, this is a tangential detail to the larger issue of supressing freedom and tagging this guy with a bogus felony.
carve, I never said that the trooper was justified in anything he did, but I’ve said he could have been. I have repeatedly said that there’s direct evidence of _what he did_ and there’s no reason to exaggerate his actions.
Somewhere below, you’ll see that you and I likely share the same opinion about the wiretapping issue.
Agree with Carve on this one.
Doesn’t matter if it wasn’t “waved” or “aimed” it was out of its holster and in his hand.
Along with the fact that there was no uniform, it was an unmarked car, and there was no badge. This was irresponcible behavior on the troopers part and he should be reprimanded.
There should have been no gun involved, just another trooper on a power trip.
Anybody can get out of a car with a gun and SAY they are a police officer… what sets him apart… Oh thats right, a painted squad car an a uniform!
See my response to “carve” above, and I’ll add:
In the above clip, the trooper never pointed his gun at anyone. There was a badge on the trooper’s hip, just forward of his holster (see 13 seconds into the above clip). He further identified himself as “State Police” approximately five seconds after opening his car door.
Those are facts, not hyperbole. Perhaps this really was “just another trooper on a power trip”. That’s your opinion, and you’re entitled to it. Please don’t confuse facts with opinions.
“the trooper never pointed his gun at anyone”
That he didn’t point is not the point. That he pulled his gun from its holster and had it in his hand when angry is the point. That is way out of line.
Daanii2, that’s an unreasonable standard, but that was not my point at all. My point was that he never pointed his gun at anyone or waved it around. The trooper’s state of mind, his reasoning for drawing his gun, the motorcyclist’s feelings during the moment, etc. are all parts of the case.
That we can’t even agree on something as simple as what facts can be derived from a 24 second video clip supports my decision not to discuss the merits of the case.
The police officer never did point his gun at the motorcyclist. You’re right about that. So I won’t argue your point about pointing.
Let me make my point. We have a man shown on a videotape coming up to a stopped motorcyclist with a drawn gun, visibly upset, commanding the motorcyclist twice to “Get off the motorcycle.” Only then does he say “State Police.”
The motorcyclist puts the video on the Internet. Responding to complaints that the officer was out of line for drawing his gun, the officer’s superiors do not comment on the officer’s actions. Instead, the state police arrest the motorcyclist for felony wiretapping. A crime that can lead to 16 years in prison.
That’s what I have a problem with. And from the comments from others, that’s what they have a problem with too.
Not that a police officer pointed or waved a gun. As you say, he did not. But that’s a moot point. It doesn’t matter.
I stand by my statement.
Regardless of the details that you are focusing on, their was an overusage of force. There should have been no gun in his hand, what their should have been is his badge and thats it.
Roundel, I’ll respectfully say that while you’re entitled to your opinion, if you’re basing your opinion solely on that video clip, you really don’t know what you’re talking about.
Daanii2, I haven’t said a word about the wiretap aspect of the case, but I seem to have stirred up some people when I called them on their inaccuracies about the actual traffic stop. In my very first post on the thread, I said that there were several separate aspects to the entire case. Since you brought it up again…
carve:
“The bigger concern is this “wiretapping” issue. What an assault on freedom this is. This is clearly nothing like wiretapping. Furthermore, cops work for the public, and when they’re out in public doing their jobs, they should have zero expectation of privacy, just as ANYONE in public has no expectation. But it is especially bad when it’s someone working for the public. It’s not as though this guy was intercepting phone calls or planting bugs in the cop car- he was just recording whatever was happening right in front of him. The ONLY “justification” for this is to scare people into not reporting abusive and corrupt cops.”
With the exception of the last sentence, I mostly agree with everything carve said. The last bit is overreaching, but it’s certainly one possible reason for this prosecution. To give some perspective, there are currently cases in the system over the legitamacy of subpoenaing the records of an officer’s private mobile phone because the officer _may_ have used it during a traffic stop. Do any of you think that I should have to surrender a record of all of my phone activity whenever a defense attorney asks for it? I don’t.
Toasty, I have to go against you on this one. Take it from someone who does not carry a gun for a living, if a person pulls out a gun when dealing with me–even if it is not aimed at me–I am not going to react well. Even if I only see a video of the incident, I might use hyperbolic language like “waving” to describe the action.
Let me ask this question: why did the officer pull out his gun? Was there an immanent danger that the rider, who was stopped, was going to endanger the public. Did the officer feel threatened? I am guessing that the answer is no to both questions. So, he must have pulled his gun for another reason–like he was upset. Is that the way it is supposed to be done?
Oh, he had his badge on his belt . . . funny that it was not noticed since the focus was on the gun. It was just five seconds before the trooper identified himself as an officer? Five seconds is a long time, and very bad things can happen in five seconds.
ruckover, those are all good points, and are all likely being discussed in court. The point I was trying to make with regard to facts vs. opinions is that there is video of the incident, and there are facts that can be derived from it, so there’s no need to make false statements about what occurred.
Toasty,
I just think that the word “waving” could be used here without it being a lie (false statement). It might not be the most accurate description, but it does not seem to rise to the level of false statement.
When we discuss which car is ugliest, we use declarative statements like “The Aztec is the butt-ugliest car ever made.” Now, there is video proof of its horrid looks, but any description will have to be opinion since there is not a universal standard for ugly. This description is based upon the writer’s experiences, likes, and dislikes. In the same way, depending on the writer’s experiences with guns, law enforcement, and motorcycle hooning, the description “waving” might truly be what the writer saw.
I would agree that it is not as accurate as it could be, but you seem to be pushing the idea that it is a lie a bit too hard.
ruckover, my point is that we have direct evidence that the trooper didn’t wave or point his gun at the motorcyclist, yet that evidence is being ignored and false statements have been made. I don’t know why people said what they did, but the statements I referred to are still false. No one can objectively watch the above video clip and see that trooper pointing his gun at the motorcyclist or waving his gun around. He drew his gun, pointed it at the ground, and put the gun back in the holster once the motorcyclist complied with his order. Unless the writer has a disability, there’s no doubt what I just described is what is shown in that clip. Other things are shown as well, but the above sequence is definitely shown. It is what it is, not what a viewer _perceives_ it to be.
Your discussion about car appearances is really about the objective and subjective, and again, that is certainly part of this case, but not in reference to the aspects of the video I detailed.
Toasty,’Malibu’ cop acted or his actions were exactly like he was stopping a highspeed pursuit (ego or power trip?). Actually, the biker was coasting to a stop behind the stopped Accord, and more importantly, the ‘Marked’ Crown Vic was right behind.
DenverMike, do you have access to the dash camera video of the marked or unmarked units? Do you even know if either had a dash cam? Do you have access to the victim statements from the fatality accident the motorcyclist caused? Do you know if there was an accident? Do you know if the motorcyclist reached into a pocket as the trooper exited his car? What was the motorcycle passenger doing? Was there one? Did the motorcycle match the description of one that was stolen at gunpoint recently? Was the motorcyclist trying to get away? Had they already been involved in a pursuit?
No one here, including me, can answer those questions. Court is where all of those questions and many, many more are answered, not internet forums.
Toasty, calm down, OK? I know the same things you know but I watched the video with an open mind. The whole video. If you did you would’ve seen the uniformed officer calmly exit his Crown Vic.
I think he just finished lighting a cigarette. So let’s not get to carried away here. The video speaks for itself.
@ DenverMike:
I’m perfectly calm. I used all of those questions to illustrate my point, not to badger you, and I apologize if it seemed that way.
I haven’t seen the video you refer to (link?), and even after viewing it, that still wouldn’t put the traffic stop into full context. If a marked unit was involved in the stop that could negate all of the hoopla over the “angry, armed dude”, but again, no one here has the full story.
The wiretapping/photographing issue is far more important than whatever hurt feelings people may have over this traffic stop. Just because a layperson doesn’t agree with an officer’s actions doesn’t make the officer wrong, but the layperson should certainly take up their complaint in court and/or with the respective agency.
As for the wiretapping case, I wouldn’t be comfortable being a part of that, and I hope there’s a definitive ruling in the matter. I don’t believe that prosecution follows the spirit of the law, and if the current Maryland law really supports the position that it’s illegal to record an officer in a public place, I hope it’s struck down. From what I’ve read of it, the Harford County, Maryland state’s attorney is claiming that the trooper had an expectation of privacy while involved in a traffic stop on a public roadway. I think that’s where this whole case will fall down. Creating the recording didn’t appear to interfere with the trooper’s investigation – in fact, the video documented several of the suspect’s traffic infractions. If there was no interference, and no officer safety issue, and the recording was made in a public place (as it most assuredly was), there doesn’t appear to be any legal reason why the suspect couldn’t record the incident and post it on youtube.
If wiretapping laws like this are being used to stiffle public discourse on police actions, they need to go.
Toasty, you’re right. Based on the video, we can only speculate, on both ends actually, but on a side note, didn’t this plain clothed officer put the other officer in the marked unit into a ‘crossfire situation’ if the perp had produced a firearm in a response to an angry, fire in his eyes, gun in his hands motorist with his ‘own’ firearm (the bike is also a weapon)?
At the moment he stepped out of the car and drew his handgun, it looked like a possible road rage situation. I was shot at, in a road rage incident. The round hit my ‘C’ pillar as the guy sped by. This biker has no doubt pissed off his share of motorists. All I did was shine my highbeams at a guy hogging the fastlane. He had shined his at me earlier and didn’t see the irony. If it was me on this bike, I would have been having ‘flashbacks’and anything can happen in five seconds. And he did look pretty pissed. Pissed and holding a firearm? He could have been my girlfriend’s deranged ex. Hopefully, if I was the biker in this situation, I would have just stayed cool but you did see the biker start to back his bike up? He did NOT know what was happening for those five seconds.
Mostly it’s pretty obvious this officer was not in any kind of danger, himself, but ‘put’ himself in mortal danger not to mention the other officer and anyone closeby. Needlessly.
A shiny badge and a smile works wonders…
@ DenverMike:
First off, sorry to hear about you taking fire. Too bad there wasn’t a trooper running radar in the area. ;)
“[D]idn’t this plain clothed officer put the other officer in the marked unit into a ‘crossfire situation’ if the perp had produced a firearm in a response to an angry, fire in his eyes, gun in his hands motorist with his ‘own’ firearm (the bike is also a weapon)?”
Maybe so. I can’t say why the plainclothes trooper positioned himself like that, but obviously, pulling in front of a suspect can create problems. I’ve done that myself on rare occasions, but only when I believed putting myself at risk was worth preventing someone from starting or continuing a chase. You may believe the trooper needlessly put himself at risk, but the trooper may have felt that the rider was creating such a hazard on the road that he had to be stopped. That might also explain why he drew his gun. Again, I don’t know the trooper’s reasoning, but that’s a very plausible line of thought, and it’s part of his job. If the rider did make it around the vehicles and caused a fatality accident during another +100 mph burst of speed, would the trooper be at fault for failing to stop the rider? In some situations, there are no easy answers.
It’s not obvious the trooper was in no danger. I’ve had people try to ram my car, and try to leave an accident scene by running me down. In those situations, all I knew for sure was that the driver definitely wasn’t complying and was presenting me with a deadly threat. Until the rider showed some compliance, there was no way for the trooper to know if he intended to run him down, get around the parked cars and escape, or simply get some space between himself and the trooper until he knew what was going on. Drawing the gun was a likely a response to this, as possibly was the reason for his car position.
From what I can see of the video clip above, it would’ve been _better_ if the plainclothes trooper had immediately said “State Police!” as he exited his car, and it would’ve been _better_ if he’d had his badge visible the entire time. That the trooper didn’t immediately, unmistakably identify himself as a law enforcement officer doesn’t negate the traffic stop. Within five seconds, the trooper did identify himself properly, and if there was a marked unit directly behind the rider, that’s all the more reason for the rider to understand what was going on. In the context of the video clip, it was reasonable for the rider to back away at first, but once he knew what was going on, it was reasonable for him to comply, which he apparently did. If there weren’t any interference/obstruction charges related to the traffic stop, it’s fair to say that the rider and trooper agreed on that point, if nothing else.
As you can see, there are just too many unknown variables to definitively say a lot about the traffic stop. Once I started putting possibles on top of possibles, it’s all conjecture.
I can totally see your point of view as to why it was important to stop this perp before he killed someone. No question there. Sounds like a pretty routine ‘felony stop’. Possible felony. Misdemeaner as it turns out.
Story would have ended there if he was in Marked cop car. At that point he could have pointed his gun, waved it around or just held it in a low and ready position. Also at that point, he could have been in his ‘civie’ with no badge visible and did not need to anounce his credentials. The cop car says it all.
Without a cop car, he’s need have the badge just as visible as the gun. If not more so.
That’s what raises red flags and since a Marked unit was seconds behind, this cop definitely ‘jumped the gun’ (pun intended).
If he had let the Marked unit make the stop, all the ‘glory’ would have went to him instead. Let’s face it, some cops are in it also for ‘rush’ and get carried away with adrenaline.
Cooler heads prevail, right?
@ DenverMike:
You bring some other possibilities to the mix. I laid out a plausible timeline in reponse to Robert.Walter, but since TTAC went to this awkward format, I’ll leave it to you to find it. Here, I’ll just say that there’s no way to determine if the plainclothes trooper “jumped the gun”, since it’s easy to see why he may have felt the need to shut down Mr. Wheelie immediately and not wait even a few seconds for the marked unit to arrive. Trust me, situations like this can develop very fast, and even in those few seconds, Mr. W could’ve been long gone.
And now for something completely different. If you haven’t read it already, I highly recommend the Jerry Flint article:
https://www.thetruthaboutcars.com/jerry-flint-r-i-p-lays-into-gm-october-2000/
“Recently I was named one of the top 100 financial journalists of the century by TJFR, a financial journalists group. I was ranked along with the likes of Ida Tarbell (the great muckraker who brought down the Standard Oil Trust), B.C. Forbes (founder of Forbes Magazine), Barney Kilgore, the creator of the modern Wall Street Journal. I tell you this so you will understand that I just may know what I am talking about.” – Sounds like a great guy!
Thanks Toasty, sounds like an interesting read.
@toasty
You are correct that he did not wave the gun, but as others have said he pulled it. That by itself escalates the situation considerably. If the motorcycle driver had revved his bike in a threatening manner it would have been justified. This was not justified. I know you guys have a tough job. I have a few friends in LE and am aware that you have to make split second judgements. You cannot deny that when a person pulls a gun, they are much more likely to use it. Please do not defend the actions of a fellow officer just to support the “brotherhood” because it undermines our opinion of your judgement. Be safe out there.
@ BMWfan:
With regard to this thread, where did I defend anyone’s actions? For that matter, where did I condemn anyone’s actions? I’ve clearly and repeatedly said that no one here, including me, has enough information to deem the trooper’s actions justified or not; that’s what court and Internal Affairs is for. What the trooper had to say about his actions is beyond me, but it’s certainly possible he was justified in drawing his gun. It’s also possible he overreacted. I will say that I’ve had my gun drawn on traffic stops when, based on my training and experience, I deemed it appropriate. I’ve also aimed my gun at people occasionally, again for appropriate reasons. By demonstrating that I was fully prepared to use that level of force, I know I’ve prevented people from making poor decisions, and I’ve safeguarded the public from further threats caused by the suspect.
Without the full context, there’s no way for anyone to determine whether or not the trooper did anything legally, administratively, or ethically wrong with regard to the traffic stop. Pretending otherwise and/or reading things into the video that aren’t there or aren’t knowable isn’t helping anyone.
My judgment is just fine, and from the kneejerk responses against law enforcement I routinely see on TTAC, nothing I say will make a difference in the minds of several posters. Thanks for the good thought, and you stay safe, too.
“There was NO reason for the cop to pull his gun.”
First of all, there was a patrol car parked behind this felon, and I assume it was that car, with lights and siren (easily visible in those beautifully large rear-view mirrors) that was the clue that it was time to pull over … So a dude pulling in front and jumping out with a gun (and, I might add, a badge attached to his belt,) shouldn’t seem out of the norm to a guy that has just been doing what he has been doing …
And as for the reason, until the trooper determines exactly why this guy was driving as fast as he was driving, the officer is not being unreasonable to assume the motorcyclist is fleeing a crime…
Just google NSX police chase and see how the driver pulls-away from a traffic stop and put numerous lives in danger as he tries to flee the officer at speeds around 150 mph (on secondary roads with more than light traffic) … how would you like it if the NSX idiot had crashed at 150mph into a car occupied with your wife and kids?
In this sense, I see it as totally appropriate that the trooper did what he did, to neutralize the motorcyclist with a clear (and appropriate) show of force … (notice, that the gun goes away as the cyclist turns off the motor and removes his gloves)…
@ Robert.Walter:
I discussed much of what you said above.
Another point about the video clip: Exactly when the marked unit pulled in behind the rider isn’t clear, and that may explain some of the actions seen.
My guess is that the uniformed trooper was the one on the median earlier in the longer video – someone took the trouble to add a notation to the video. If so, it’s likely that the marked unit wasn’t able to reach the traffic stop by the moment the plainclothes trooper exited his car, and only pulled up at the moment the rider started to comply with the plainclothes trooper. The marked unit could also have been radioing ahead for assistance and providing a list of infractions. This could be important because in some jurisdictions, if you commit enough moving violations during an incident, the traffic charges become a felony. At the end of the clip, you can see the uniformed trooper exiting his car, which likely means he just arrived.
That sequence would explain why the unmarked trooper made the stop and how he parked, as he didn’t want to wait for the marked unit and let the rider flee (felony suspect, no emergency lights/siren, so he boxed him in). It would also explain why the rider initially backed away, then stopped once he knew it was a traffic stop (marked unit just arrived). It would also give more weight to the trooper’s decision to draw his gun, as being in plainclothes carries an inherent risk when taking a police action, and making a felony arrest also generally connotes a higher level of risk to the officer.
I don’t know if that’s how it went down (I made several assumptions), but it’s a plausible timeline and makes more sense to me than anything else I’ve read. As for the wiretapping charge, I have no idea how that spun into being. As much as we pick away at the traffic portion of the case, the wiretapping charge is much more interesting and important.
I think it REALLY depends on your POV & background.
Here in Chicago, we recently have had an off-duty police officer “bike-jacked” at gunpoint by 4 guys who went to take his bike (http://www.chicagobreakingnews.com/2010/05/slain-officer-fought-to-take-back-streets-in-his-neighborhood.html). We also have a very high number of shootings (http://www.chicagobreakingnews.com/) If I saw this guy pop out of the car with a gun drawn, I wouldn’t have waited 5 seconds to hear him say he was a police officer, I would have taken off. On top of this I’m hearing impaired and I do NOT wear hearing aides when I ride. I wouldn’t have any idea what this guy was saying if he ONLY identified himself verbally and popped out of the car.
I expect an officer to either
1) be easily identifiable by car or clothes.
2) have his badge out poking into my nose first.
Having something shiny on his hip (is it a belt buckle? Is it bling?) and pulling a gun first, I’d assume _HE_ was a criminal.
Would you have blamed me for taking off?
@ Robstar:
Good points, and I’m sure they’ve been discussed in court. Again, without the full context, we can’t intelligently discuss many aspects of the traffic stop.
FWIW, whenever I’ve worked in anything other than a marked car while in uniform, I’ve always been keenly aware of the need to identify myself as a police officer as quickly and definitively as possible. Often, the best way to do this is to have a marked unit assist, as apparently is what some posters have suggested occurred in this instance. With my agency, a marked unit is usually assigned to an operation so there’s no doubt as to what’s going on when The Bad Man gets stopped. We’ve also received quite a bit of training with regard to working with citizens with physical or mental disabilities, as no one wants to be the officer that uses a Taser on a deaf person because they aren’t complying with vocal commands.
Regardless of the officer’s response, the retaliatory nature of his department’s response to the filming is disgraceful. You wonder why the citizen’s are now mistrustful of police, this is a prime example.
toasty, you cited releasing cell phone records as justification for protecting some semeblence of privacy. I agree that we, the people, do need some privacy including those of public servants. However, in this instance the police should have NO expectation of privacy. They were being filmed in broad daylight on the side of the road. How is that “private”?
For the Maryland police to react in the manner they did sends a crystal clear message that they hold themselves above the citizens of the state.
@ ktm:
I spend too much time on my responses. I think you’ll find that I agree with you in an post above. :)
We’ll never know, but I have to wonder how the wiretapping case came to be. It’s hard for me to believe the plainclothes trooper was the one pushing this case, as people at his (and my) level just don’t have the juice to make that happen. I don’t know what’s motivating this prosecution, but everything beyond the traffic stop seems odd to me.
Funny thing about this is I’m into photography and regularly read the forums at dpreview.com. A common topic is police and private security intrusion into photography, and there are definitely some examples of questionable behavior like this occurring all over the world.
“Provisions against recording are, I think, going to become an anachronism as technology advances: Big Brother is, in many ways, balanced by “Little Brother”, and the cameras on the street-corners offset by a million cellphones with an “Upload to Youtube” button.” – psarhjinian
I completely agree. Barring any interference or safety concerns, if a uniformed officer has a problem with their law enforcement activities being recorded in a public place, maybe they shouldn’t be involved in it in the first place. None of you know me, and I can tell you I’m an honest, respectful officer all day long, but unless there’s transparency in my work, you’d never really believe me. Unfortunately, law enforcement officers have given the public plenty of reasons to distrust them, but public recording by private citizens is a powerful way to restore a measure of that trust.
@ toasty
You make good points and and a valid argument. I guess I just sense inference, which really is my problem, since you are correct in that you used should have and could have. As you have mentioned, it is impossible to make a valid determination based on the video presented, as we can not see all angles of the incident. If I was asked to make a deternination based on just this video, I would stand by my statement that the officer overreacted. This decision is also influenced by the statement in the article that:
“Uhler responded by ordering his colleagues to raid Graber’s residence and confiscate all of his computer equipment as evidence of wiretapping. By filing charges that could send Graber to prison for sixteen years, the state police wanted to send a clear message to anyone who might consider documenting police misconduct in the future.” This shows me that trooper Uhler had it in for this guy and that says a lot to me about his state of mind, and his intentions when viewed in total. To my mind, the trooper was pissed off and made a bad decision. You have been above board in all of your responses, and it has been a pleasure to have this discourse with you. Don’t know what state you are located in, but I am the guy in the silver E46 trying to fly just below the radar :)
@ BMWfan:
Like I said, there’s several facets to this case and it’s easy to mistakenly combine what are actually separate issues. Usually, the legal basis for a traffic stop is questioned, leading to the possible dismissal of any charges derived from fruits of the stop if the initial stop was found to be illegal. That doesn’t seem to be the case here.
Maybe the trooper was pissed off during the stop, maybe not, but that doesn’t explain the wiretapping prosecution. Questions about state of mind are usually about what occurred in the heat of the moment (traffic stop), not hours or days after the initial event (search warrant, wiretapping prosecution). This case seems to have taken on a life of its own far beyond the traffic charges, and maybe some good will come out of it in the end. Something as basic as the right to record activity in a public place on public property should be clearly defined. It’s disturbing that in some jurisdictions, it isn’t.
Here’s another thread by photographers discussing this case. It’s a slightly different take, but very similar:
http://forums.dpreview.com/forums/readflat.asp?forum=1000&thread=36007926
The kid on the bike is a jerk, no question about it. The cop is an even bigger jerk. Since cops are sworn public servants, and are granted privileges not afforded to the the general public, they are held to a higher standard of conduct than Joe citizen, as they should be. Since the cop’s hands are now dirty, and I’m not talking about drawing the pistol, the kid should walk, and the cop involved in the traffic stop, as well as the cops who participated in the illegal arrest and search should loose their jobs.
Having recently been a victim of a cop “omitting” events during testemony when I was fighting a ticket, I think we should be allowed to record a pull over. Being that officers refer to notes on their tickets when in court and they are not under oath when they write the said notes but, despite the notes not being recorded under oath, can use them to “refresh” their memory from a traffic stop 4 months ago its only fair that I, too, get to take “notes” in the form a video.
Fresh from my mailbox, here’s an excellent article from a respected magazine:
http://www.lawofficer.com/article/training/use-your-power-wisely
excerpt:
Good police leaders understand we operate with the consent of the people. We have civilian oversight from elected officials and the courts, but we’re also responsible to the people. Much of what we do is, as the cliché goes, lawful but awful. There’s no nice way to beat someone into cuffs. Welcome it on tape, and go explain it in court. Then we get a more educated public, and we’re transparent to those we serve.
Sound familiar?