Tuesday, September 28, 2010

Weird Constitutional Inversion of the Day

The Washington Post blog is reporting a strange story out of Maryland's Harford County in which a motorcyclist was jailed for recording a traffic stop by an plain clothes police officer. The Harford County state's attorney, Joseph Cassilly, charged the motorcyclist under Maryland's anti-wiretapping law after Graber posted the video on youtube, and obtained a grand jury indictment for recording the state trooper without consent. The charging documents included three counts of violating the MD wiretap law: (1) Unlawful interception of an oral communication in voiolatino of CJ 10-402(a)(1)... (2) Unlawful disclosure of an intercepted oral communication in violation of CJ 10-402(a)(2)... (3) Unlawful possession of a device "primarily useful for the purpose of the surreptitious interception of oral communications" in violation of CJ 10-403(a).

A Harford County Circuit Court dismissed the charges today. The first two counts turn on the statutory interpretation of oral interpretation. Section 10-402(a)(1) of the Maryland state code reads

"Except as otherwise specifically provided in this subtitle it is unlawful for any person to willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, oral, or electronic communicaton."
It is inarguable that the defendant in this case endeavored to record the interaction between the state trooper and himself. This, however, does not make his action illegal. In fact, the wiretapping law of Maryland, which was modeled after a federal statute, was partially designed to make illegal the growing unchecked use of wiretaps by the law enforcement community. Yet so-called 'one party consent calls' are still a mainstay of the law enforcement tool kit. This is essentially what happened in this instance: one party to a communication consented to record the conversation. This suggests that the party did not "intercept" the communication so much as participate in while willfully recording it, which is not a crime under the federal statute. The Maryland statute, unbeknownst to the writers of The Wire, actually does prohibit single-party consent recordings, and requires the consent of both parties.

However, the judge did not attempt to argue by analogy. Instead, as judges should do when possible, he stuck to the statute, which defines an oral communication as: 

"Means any conversation or words spoken to or by person in private conversation."
The judge rests his decision on these two counts on the meaning of "private." A conversation is considered private when the parties have a "reasonable expectation of privacy", i.e. they can feel secure under normal circumstances that no one can observe the interaction without extraordinary means or effort. Because the interaction took place on a public highway, there is no reasonable expectation of privacy. In fact, the video shows a line of stopped cars, the passengers of any one of which would have the opportunity to listen to the interaction simply by opening a window. The conversation is clearly not private, so the recording of it cannot be a crime.

The third charge- possession of a wiretapping device- was dismissed on statutory grounds, writing that the statute did not comprehend an in-helmet camera as a "device primarily useful for the purpose of surreptitious interception of oral communications." Such a reading would, after all, prohibit possession of blackberries, dictation machines, any type of audio recorders, and cell phones to monitor a police-citizen interaction.

This is very good statutory interpretation, and I would expect nothing less from a state circuit court. However, the doctrine of allowing statutory problems to short-circuit very serious constitutional concerns makes these decisions ultimately more boring than they need to be. This case raises some very important constitutional concerns. Defendants sought to charge that the statute on its face and as applied in the case violated the Federal First Amendment's protection of free speech. This is a very interesting point in the digital age of easy upload and instantaneous communication. Plenty has been written about the privacy concerns of people pictured on facebook, and we await more authoritative discussions of such an issue between private parties.

I am much more interested in the broader question here, which a court cannot answer effectively: What is the proper role of the police in a democracy? David Sklansky is one leading scholar on this issue, and if anyone has a few hours, I would highly recommend reading his book on the subject. Essentially, the police are the apparatus of the state which embodies the most blunt coercive force, which in a democratic society, must be checked by popular sovereignty. There are very few real limitations on the power of police to taze, shoot, or beat civilians. The fact of the matter is that public outrage is often answered by an inadequate trial of an offending individual, and does nothing to address the situational causes of police brutality. Even in this case, where the state trooper approaches the motorcyclist with his gun drawn, there is no outrage about the lack of restraint. Ironically, it is the prosecutorial indiscretion which brings this case to our attention. The explicit and over-the-top threat of force is a modus operandi which too often goes unchallenged in police forces; either because there is no civilian oversight, or because the institution is beholden to the interests of the police unions.

In this instance, the state apparatus attempted to punish a civilian who provided an oversight function through an inappropriate criminal statute. While the judge was certainly right to throw out the criminal charges pursuant to the wiretapping statute, the judge may have more grandiloquently defended the rights of civilians to inform themselves and others of the practices of the police forces which ostensibly serve them. In this case, the defendants military service makes him a particularly shocking victim of prosecutorial repression of oversight in service of the police. The prosecutor's overzealousness in this instance illuminates a much broader pattern of law enforcement community complicity in police abuses. The instinctual reaction of teh state's attorney is to protect at all costs the profession which feeds them cases to try. After all, the cases provided by the police raise the profile of the attorney, and the better the evidence collected, the better the outcome, often personal, for the lawyer.

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