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Charges dismissed against Md. man who taped traffic stop

By Annys Shin

A Harford County Circuit Court judge Monday dismissed wiretapping charges against Anthony Graber, a motorcyclist who was jailed briefly after he taped a Maryland state trooper who stopped him for speeding on I-95. Graber used a camera mounted on his helmet, then posted the video on YouTube.

In April, a few weeks after the traffic stop, Harford County state's attorney Joseph I. Cassilly charged Graber, a staff sergeant in the Maryland Air National Guard and a computer systems engineer, with violating the state's wiretapping law. That law dates back to the 1970s and was originally intended to protect citizens from government intrusions into their privacy. If convicted on all charges, Graber faced up to 16 years in prison.

Judge Emory A. Pitt Jr. had to decide whether police performing their duties have an expectation of privacy in public space. Pitt ruled that police can have no such expectation in their public, on-the-job communications.

Pitt wrote: "Those 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?”)."

Graber was also charged with possessing a “device primarily useful for the purpose of the surreptitious interception of oral communications" -- referring to the video camera on his helmet. The judge disagreed with the prosecutor that the helmet cam was illegal, and concluded the state's argument would render illegal “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices."

Pitt's decision is the first ruling in Maryland to address the legality of citizens taping police in the course of their duties. Because it is a circuit court ruling, it is not binding on other judges. However, unless it is appealed, said Graber's attorney, David Rocah of the ACLU of Maryland, "it is likely to be the last word" on the matter and to be regarded as precedent by police.

No word yet on whether the state's attorney will try to appeal the decision. Graber still faces traffic charges stemming from the incident.

By Annys Shin  | September 27, 2010; 5:16 PM ET
Categories:  More on the story  | Tags:  Anthony Graber, arrested man tapes cop, motorcycle cop, police and privacy, videotaping arrest  
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Comments

The decision by the Harford County Circuit Court to dismiss the wiretap charges against the motorcyclist was the legally correct one - the police do not have an expectation of privacy to avoid being videotaped while making an arrest outside on public property. Any other decision would have had the effect of calling the Rodney King and University of Maryland Celebration videos of the police beating up citizens illegal. Another (rare) victory for the people!

Posted by: hoya91 | September 27, 2010 6:28 PM | Report abuse

Can the paper find and post the text of the actual decision, thank you!

Posted by: theprez98 | September 27, 2010 6:40 PM | Report abuse

Agree also, excellent decision. Expecting a lawsuit, and I think most citizens would applaud. No way this guy should have been jailed.

Posted by: Nemo24601 | September 27, 2010 6:40 PM | Report abuse

Thank you Judge Pitt. I glad someone is standing up for our rights. A pity the State's Attorney needed to be reminded that he is responsible to the people and not his law enforcement buddies.

Posted by: matt6 | September 27, 2010 6:43 PM | Report abuse

The disgusting part of this whole thing is that it got this far. The Prosecutor and the Police should be ashamed of themselves. Maryland Police and States Attorneys do not know that a public road has no privacy? Really? Maryland is known for attacks on basic freedom. This attempt by Government to squash a citizen who was completely within his rights is another example. It makes me embarrassed to be from Maryland. I can't wait to see the outcome of the case of the student getting beat up in College Park by Police who tried to cover up the attack.

Posted by: bobbo2 | September 27, 2010 6:45 PM | Report abuse

There are two problems that need to be addressed here. First is the fact that the law enforcement agencies assert that their activities are protected by their right to privacy while simultaneously claiming the right to use CCTV and other recording methods on the unsuspecting public. We cannot afford to extend constitutional protections to the police powers that are not also available to the general public. Certainly the Gestapo and KGB have taught us that much.

The other important consideration is the current distinction between audio and video recoding privacy. This is an artifact of the evolution of wiretapping laws. They have been completely run over by personal video recording (which almost always includes the audio accompanying the picture). The courts need to treat these two segments of the media in the same fashion. I have no problem with restricting the use of personal video, but it must be treated in identical fashion to audio, and this includes its use by law enforcement.

Posted by: mikehevans1 | September 27, 2010 6:45 PM | Report abuse

This story did not mention that the police afterward raided the man's house, scared the heck out of him and fellow occupants, looking for the electronic evidence.

Posted by: DrWho2 | September 27, 2010 6:50 PM | Report abuse

Now please follow up on how the department plans to correct the training of the officer who approached the motorcyclist, gun drawn, without first identifying himself as a police officer.

Posted by: Apostrophe | September 27, 2010 7:02 PM | Report abuse

No fire the states Attorney for such a stupid prosecution.

Posted by: fudador | September 27, 2010 7:04 PM | Report abuse

This isn't just about that one cop. How about the senior officials of the State Police who supported this case rather than just taking the cop out to the woodshed for a bit of re-education? They all need a lesson in the law, and perhaps they all need to seek employment elsewhere.

Posted by: Three3 | September 27, 2010 7:17 PM | Report abuse

Let's hope that the voters in Maryland send this DA packing the next time he comes up for re-election.

Posted by: robert17 | September 27, 2010 7:27 PM | Report abuse

Good for you, Judge Pitt! Thank you for your example of judicial integrity, and for doing what needed to be done.

Shame on you, state's attorney Joseph I. Cassilly. This was a pathetic abuse of authority, and you should be booted from your job.

And shame on you, the manipulative, power-abusing (individual) patrolmen and supervisors who began this miscarriage. You probably will escape accountability--but you shouldn't.

Posted by: egb3 | September 27, 2010 7:27 PM | Report abuse

My GOD a judge with a working brain. Can't say the same for the DA.

Posted by: jjgrah | September 27, 2010 7:35 PM | Report abuse

I can't believe the prosecutor actually charged this guy.

Posted by: Booyah5000 | September 27, 2010 7:37 PM | Report abuse

politicians in maryland hate recording devices...
they might catch them breaking the law...

Posted by: DwightCollins | September 27, 2010 7:41 PM | Report abuse

I hope Mr. Graber pursues a malicious prosecution lawsuit.

Posted by: vmax02rider | September 27, 2010 7:51 PM | Report abuse

Now does this mean that any citizen can record court proceedings? I think not. Put a recording device in front of a judge, any judge, and see how their attitude will change regarding recordings.

Posted by: gpl2411 | September 27, 2010 7:57 PM | Report abuse

Good for him and good for Maryland. Just the thought that this man was locked up and prosecuted for filming events on a public highway is frightening. The motorcyclist should sue the pants off these idiots for violation of his First Amendment rights, intentional infliction of emotional distress, false arrest and malicious prosecution.

Posted by: PepperDr | September 27, 2010 8:16 PM | Report abuse

I wish all judges were like this one.

Posted by: solsticebelle | September 27, 2010 8:18 PM | Report abuse

This was always my favorite cop video... everyone turned to okay and you can see the quick and genuine response by the police officer.

youtube.com/watch?v=NEIFk2AxEvs

Posted by: blasmaic | September 27, 2010 8:18 PM | Report abuse

This was a travesty from the get-go. The cop and the state's attorney acted outrageously. Let's hope there are consequences for both of them.

Posted by: Rob_ | September 27, 2010 8:41 PM | Report abuse

Its sad but no surprise that so many people mistrust the police.

Posted by: lauther266 | September 27, 2010 8:48 PM | Report abuse

Great decision. The only reason for the attempted prosecution was to intimidate other citizens who might tape police conduct. The only reason for police to oppose taping in public space (in a way not interfering with their ability to carry out their job) would be an intent to falsify events in later reporting or testimony.

Posted by: lemondog | September 27, 2010 9:01 PM | Report abuse


The Maryland State Gestapo gets a slap on the wrist. If it had been the PG Gestapo, the kid wouldn't have survived.


Posted by: mortified469 | September 27, 2010 9:10 PM | Report abuse

i thought the cops had recording devices to protect them from false accusations.
if you're doing the right thing, why should it matter if you're being photographed?
everybody keep it real.

Posted by: ninnafaye | September 27, 2010 9:23 PM | Report abuse

The police charge people for taping them, while claiming they don't need wiretaps or search warrants for anything anymore. They even want to legally tamper with cars to place GPS trackers and read all of your internet communications with no warrant. Anyone afraid of presenting their case to a judge must have something to hide. Clearly there needs to be some additional legislation to reverse this trend. Not every cop or fed is out there chasing Al Qaida cells. In fact, very very few of them are, although some apparently like to pretend they're Jack Bauer when they're really Joe Friday.

Posted by: JustSayNoToOil | September 27, 2010 9:26 PM | Report abuse

Finally a judge that doesn't tolerate out of control pigs like Joseph David Uhler

Posted by: Pete262 | September 27, 2010 9:29 PM | Report abuse

This should be the rule of thumb in such cases: if the Post is allowed to do it, then everyone is allowed to do it. Citizens have a Constitutional right to video any public employee in any public activity.

Posted by: jy151310 | September 27, 2010 9:40 PM | Report abuse

The Maryland State Attorney was an incompetent fool for bringing charges against a man trying to protect himself in case his rights were violated. I believe that fully even though I generally support the police. Charging this guy was, in my mind, an attempt to intimidate him and others. It amounted to an abuse of power.

Posted by: JHG_sec405 | September 27, 2010 9:49 PM | Report abuse

I am thinking this man needs to file a civil suit. $500,000 for the illegal arrest should be sufficient. Can't wait to start videotaping!

Posted by: civilrightist | September 27, 2010 9:57 PM | Report abuse

The appropriate punishment would be to have the motorcyclist "taser" the cop.

The joke here really is not only that somebody trusted with a weapon in public (A cop) had so little judgement that he would draw his weapon with little provocation.

What makes it worse is the that instead of reigning in the copy, his boss, his boss's boss and the DA did nothing to discourage this kind of behavior; indeed by prosecuting the cyclist, they are sending a message that laws are meant for the little people only and don't apply to cops.

Why did it take a judge to speak some sense when there were so many opportunities for adults to do the right thing.

Posted by: Ombudsman1 | September 27, 2010 9:59 PM | Report abuse

Bet the arresting cop is a tea party rethuglicon....

Posted by: nowhine | September 27, 2010 10:27 PM | Report abuse

Please post in this same dismissal article the fact that the Maryland Police Officer was in an unmarked car, stepped out and immediately brandished a weapon, failing to identify himself. It could have happened to anybody, especially in a state where BMW's and Mercedes luxury vehicles routinely drive 90+ MPH around the outer and inner loop of the beltway between 10PM and 6AM. Those guys scare the willies out of me and are mostly not policed.

Congrats for the dismissal! Let the civil cases begin!

Posted by: lycanr1 | September 27, 2010 11:07 PM | Report abuse

The video shows an un-uniformed, off-duty cop cutting him off in traffic and jumping out with gun drawn.

The pig is lucky he didn't wind up with a face full of motorcycle in an act of "self defense against the man attempting to hijack me."

Posted by: ImanAzol | September 27, 2010 11:16 PM | Report abuse

Nowhine: Bet the stupid comments in this thread are from 0bama voters.

You'll find most "rethuglicons" are appalled at this kind of behavior, which is textbook dummycrap.

See how easy stupid stereotypes and name calling are? I learned how to do that when I was five.

Posted by: ImanAzol | September 27, 2010 11:18 PM | Report abuse

How much of our MD tax dollars was wasted on this?

Posted by: 40acres | September 27, 2010 11:32 PM | Report abuse

Who made the call for a search warrant of Anthony Graber's computer and called Hartford County state's attorney Joseph I. Cassilly to press charges and waste tax payer money for this obvious citizen harassment?

And who was this undercover police bully pulling out his gun jumping out of a unmarked car without any lights or identification?

This case is not over by a longshot!

Posted by: GarrisonLiberty | September 27, 2010 11:39 PM | Report abuse

Unfortunately, this is the type of case which enrages the public against the police. Talk about an egregious slap-in-the-face,..."boy-you-done-f**d-up", red-necked authoritarian reaction.... and I thought speed-traps...you know..Highway patrolmen acting as revenue producing highwaymen, were bad.... This takes the cake.

By the way, I'm an NRA member, vote conservative, and am a combat vet. And I am FED UP with these high-handed "stand-and-deliver" hold-up men disguised as officers.

Posted by: wjc1va | September 28, 2010 12:02 AM | Report abuse

Good call by the judge.

From the beginning this case sounded like a way to distract people from the fact that the officer acted improperly.

The cops and the DA should have apologized to the motorcyclist for the way the stop was handled, and let it go.

Posted by: BEEPEE | September 28, 2010 12:18 AM | Report abuse

"

The decision by the Harford County Circuit Court to dismiss the wiretap charges against the motorcyclist was the legally correct one - the police do not have an expectation of privacy to avoid being videotaped while making an arrest outside on public property. Any other decision would have had the effect of calling the Rodney King and University of Maryland Celebration videos of the police beating up citizens illegal. Another (rare) victory for the people!

Posted by: hoya91"

...ah so it's the legally-correct decision because it implies that the consequences in other cases would be as you desire?

Don't you see that this is nothing more than "ends justifies the means" logic?

Technically it has no bearing on other cases, just this one. Judges can come up with completely-different rationale for a decision that is narrowly-focused on the facts of the case before them. What others want to make it of it is up to them, decisions based on this "precedent" likewise.

In my opinion prosecutors' argument is specious on its face. The judge could have gone along with it. That's entirely up to him. And qualified it such that it wouldn't have applied to 3rd parties observing the acts of the police, or in special "security" situations where the police would legitimately be at risk if they were filmed "justifably" cracking skulls. Just like that moron DC cop who shot a dog at a block-party.

Posted by: tokenwhitemale | September 28, 2010 1:21 AM | Report abuse

"Graber was also charged with possessing a “device primarily useful for the purpose of the surreptitious interception of oral communications" -- referring to the video camera on his helmet. The judge disagreed with the prosecutor that the helmet cam was illegal, and concluded the state's argument would render illegal “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices." "

...and if these were not common items, the prosecutors' argument might very well have passed the judges' scrutiny.

Posted by: tokenwhitemale | September 28, 2010 1:23 AM | Report abuse

Why is there no mention of abuse of power? Weeks after the incident, the trooper showed up and this person's door and broke the Fourth Amendment and brought two additional incident related charges against the motorcyclist. The evidence was on YouTube. There was no reason to seize all the computers in the house, nor to detain other family members.

The fact that this person drew his gun in the incident at all as well as his trying to make life as hard as possible for the motorcyclist in retaliation smells of abuse of power - someone who should not be on the force.

Posted by: overdrive_68 | September 28, 2010 1:27 AM | Report abuse

If everyone had a camera when they were stopped by the police, half the police in the country would be in jail for abuse or perjury.

Posted by: jackintheboxjf | September 28, 2010 1:40 AM | Report abuse

What a screwed up country. You're not your grandparents America. Those were good people. You're a bunch of loony buffoons.

Posted by: politbureau | September 28, 2010 1:52 AM | Report abuse

Watch for harassment and retaliation against Graber in some new form, a tax audit maybe? The police live by the Rodney King standard- anyone who resists, much less wins in court, deserves a beating at minimum.

Posted by: hairguy01 | September 28, 2010 5:21 AM | Report abuse

What an absolute abuse of the State's power. This actually DA sought to ban the police from public scrutiny? What's next on his wish list, closed door trials with gag orders on the defendants only?
Voters, sack this clown.

Posted by: OttoDog | September 28, 2010 7:20 AM | Report abuse

A good decision for the people. I am suprised the procecutor brought this case.

Posted by: WillDavis | September 28, 2010 8:27 AM | Report abuse

Maybe the reason they didn't want this video posted is because the idiot cop drew his gun and demanded that the guy get off his motorcycle before identifying himself as a police officer. It looked more like a [motorcycle]jacking than a traffic stop. The guy would have been within his rights to shoot the officer in self-defense or at the very least speed away in those initial moments. Oh yes, and as someone else mentioned, the cyclist's house was stormed and raided by the MD police after the video was posted. We should all be outraged at incidents like this-- our freedoms continue to be eroded.

Posted by: jcriss01 | September 28, 2010 8:44 AM | Report abuse

One has to wonder how an officer in the middle of a public highway has an expectancy of privicy. This case shows how laws can be twisted beyond common sense. If you following the states logic how can the police use wiretaps or view CCTV, or ATM cameras.

Posted by: Jimof1913 | September 28, 2010 9:00 AM | Report abuse

If you watch the extended version, more of the story is told.

The motorcyclist was clearly speeding and changing lanes.

Still, if police know they might be filmed, it will lead to better behavior.

Posted by: postfan1 | September 28, 2010 9:01 AM | Report abuse

Thank God the judge made the right decision. This is pretty typical of the "us-vs-them" mentality some police have. Most cops aren't bad, and a lot are great, but a few are attracted to the power of authority and become "Supercop" as soon as they strap on the gun. God help us if we ever come to a place where it's a crime to record what a public servant does in public.

Posted by: whorton1 | September 28, 2010 9:01 AM | Report abuse

Some of you are missing it. Maryland is a two party consent state. If I am having a one on one conversation with you even in public the state law requires you to get my consent to record the audio of the conversation. Your employment capacity was not address in the law. Video with out sound is perfectly legal. Hence the CCTV cameras that some people dislike. The only exception to this is the video and audio recording of Traffic stops by Officers via in car camera systems. During those stops Officers are instructed to inform the driver that the stop is being audio and visually recorded. Whether its a good or bad ruling the judge set a legal precedence in Maryland. The next 20 years should be interesting.

Posted by: Bluecrab65 | September 28, 2010 9:02 AM | Report abuse

Smart judge. As for the over-reaching state's attorney, what an idiot. Leave it to government to twist a law intended to protect the people and use it to abuse the people. What part of "public place' and "public servant" doesn't the attorney understand?

Posted by: jckdoors | September 28, 2010 9:10 AM | Report abuse

The camera is mightier then the sword. I have been taping Montgomery county Pd for a while know Look for them on youtube

Thanks Judge Pitt

Posted by: REDSKINSFANtiltheend | September 28, 2010 9:10 AM | Report abuse

postfan1: I don't think anyone's defending Graber's traffic violations. I hate those speeding motorcycles, and he's admittedly guilty of traffic violations. He should be cited for speeding and possibly reckless driving.

None of that justifies everything that unfolded afterward though. He was guilty of a traffic violation, nothing else. The raid on his house and the wiretap charges are an egregious abuse of power clearly intended to intimidate citizens and make future police abuses easier to get away with.

Posted by: mhardy1 | September 28, 2010 9:18 AM | Report abuse

More money wasted on a guaranteed loser. Do cops really think what they do in the performance of their duties is private? Even worse, here we have a prosecutor who is clueless about basic Constitutional principles as well.

Yo, cops! If you wouldn't want your mother to see it, then don't do it. Otherwise, you're just another street punk who happens to wear a badge.

Posted by: st50taw | September 28, 2010 9:38 AM | Report abuse

Maryland is hoarding illegals and now turn into communist state in our backyard. This guy should sue the state for illegally raiding his house.

Posted by: drkly | September 28, 2010 9:51 AM | Report abuse

For those seeking the decision you can find it here:
http://www.aclu-md.org/aPress/Press2010/Court_Opinion_092710.pdf

Hosted by Maryland's ACLU on a page about the case:
http://www.aclu-md.org/aPress/Press2010/092710_Graber.html

Posted by: entom | September 28, 2010 11:35 AM | Report abuse

I fully support the police, who put their lives on the line every day.

And I fully support our right as citizens to videotape the police in performance of their duties.

Give the police strong powers to enforce the law, and give citizens strong powers to monitor the police. Results: people obey the law; police don't get abusive. It's a win-win.

I'd like to see every vehicle equipped with front, rear, and side cameras on a continuous recording loop. An accident or intervention by the driver would interrupt the loop and save the last few minutes of recording. What a tool for justice that would be!

Posted by: dmm1 | September 28, 2010 11:47 AM | Report abuse

The citizens should always have the right to record, even secretly, the official actions of the public servants. But those public servants should not have the right to record the citizens without due process. We, The People, have a right to know what our government officials are doing behind closed doors, but they do not have the right to know what we do.

Posted by: esentner | September 28, 2010 2:08 PM | Report abuse

This prosecutor needs to face some serious democratic sanction for filing these charges. Civilians have every right to provide oversight of police action, in the aggregate and at the individual level. The police wield the most immediate type of coercive power, and in a democratic society, the instances in which civilians are threatened with this power need to be carefully reviewed. After all, it is the popular sovereignty which the police are defending.

http://thesillyseason.blogspot.com/2010/09/weird-constitutional-inversion-of-day.html

Posted by: keldurron | September 28, 2010 2:46 PM | Report abuse

Am I the only one who thinks raiding the guy's house was the right thing to do?

Oh. Wait a minute. The cops were jerks.

...never mind...

Posted by: Autarch | September 28, 2010 5:50 PM | Report abuse

"Plitt, with an 'l'". He probably spent his whole life saying that.

I'm glad to see common sense exists at some level in the legal system. Now, we just need some re-education in the State Police barracks (and others) as another mentioned.

Posted by: CRunkle | October 1, 2010 12:27 AM | Report abuse

Of course there is no expectation of privacy here. Imagine, for a moment, that press had to ask permission before filming a police officer on a public street. That is clearly a violation of our right to free speech. I hope there is some type of punishment for police officers enforcing the law as retribution for embarrassing them (you'll notice how quickly they arrested this man while James O'Keefe, who admittedly filmed people inside private buildings without consent, has yet to be charged).

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