The Law Developer

     A Maryland man, Anthony Graber, decided to drive his motorcycle at reckless speeds down public streets and, in a stroke of genius, decided to record his antics from his helmet camera for later viewing on YouTube. Fortunately for the other drivers of Maryland, a police officer caught Mr. Graber and arrested him. And, thanks to Mr. Graber’s helmet camera, we can watch it all on YouTube.

     Happy ending, right? Unfortunately, no. Mr. Graber had his computer confiscated and is now being charged with violating Maryland’s wiretapping law for recording the conversation between him and the police officer. Here is the relevant section of the statute:

§ 10-402.

(a) Except as otherwise specifically provided in this subtitle it is unlawful for any person to:

(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle;

     Based on a plain reading of the statute, it appears as though Mr. Graber violated the law, but a plain reading of the statute would most likely violate the First Amendment. A Maryland appellate court, however, has determined that the “oral communication” portion of the statute requires “factual finding[s] of reasonable expectations of privacy.” In other words, if there is no expectation of privacy in the communication, there is no violation of the statute when applied to oral communications.

     Let’s take a step back and discuss Miranda warnings. Miranda warnings are required to be given to a person who has been taken into custody by the police. Yet, courts have held that when a person is in the custody of police officer during a traffic stop, the police do not have to read the Miranda warnings. This was decided in the case Berkemer v. McCarty, in which the U.S. Supreme Court held that people pulled over during a traffic stop are in temporary police custody, but because (among other reasons) the stop occurs in public view, Miranda warnings are not necessary. The Court believes that because the public is viewing the stop, the police cannot be as coercive as they would be during a normal custodial interrogation.

      Most of you know where I’m going with this. If Miranda warnings are not necessary during a traffic stop because it occurs in the public view, the police officer who pulled over Mr. Graber could not have had a reasonable expectation of privacy during this traffic stop. The police want it both ways. Traffic stops are in the public view when the question is whether or not to read Miranda warnings, but the police expect privacy during the traffic stop when it comes to detainees taping their actions. Leave it to the cops to take any good will they earned by arresting a self-centered jerk who threatens the lives of everyone on the street and throw it away by going overboard and violating the guy’s First Amendment rights. Hopefully, this guy will have the charges dropped and maybe even win some money in a civil rights suit against the police.

     One last thing before I wrap this up, the article tries to paint the officer who pulled over Mr. Graber as reckless and overzealous. I just don’t see it. The officer did pull his gun, but practiced excellent muzzle control. Given the circumstances, pulling a gun doesn’t seem that out of line. The writer also tries to fault the officer for waiting a few seconds to announce himself as an officer (he was a plain clothes officer). Watching the video, the officer secured the situation and then announced himself. I am as critical of the police as anybody, but I just don’t see an issue here. The officer acted the way that I would expect an officer to act under the circumstances.

     This whole thing puts me in a weird position. I have to defend the first arresting officer because the article writer tries to fault him in the situation. Then I have to defend the attention-seeking jerk because other police officers violate his First Amendment rights. Defending a police officer and a narcissist all in the same post makes me feel dirty. I guess if I want to be a lawyer I better get used to that dirty feeling.

via TechDirt

Stephen Burch

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“Blame it on a computer.

Embarrassed cops on Thursday cited a “computer glitch” as the reason police targeted the home of an elderly, law-abiding couple more than 50 times in futile hunts for bad guys.”

     Those are the first two lines of this story. The rest of the story goes on to explain that somebody put the homeowners’ address into the system as a test and the cops showed up to the house over 50 times looking for criminals.

     Now sure, computers were involved, just like cars are involved in drunk driving. The real problem, however, is the idiot behind the machine. The worst part being that no one in the entire police force was able to figure this out and when they finally did three years ago, they weren’t able to fix it correctly. Besides the article, the newspaper has a poll asking readers if the homeowners should be compensated for their ordeal. My personal feelings: of course! I read recently about California’s anti-spam law. It allows a person who receives spam to sue the sender for $1000 per message. In the linked article, the man won $7000. Now compare and contrast. A computer sends you an email that you have to click and delete and the sender is liable for $1000. A computer sends armed men to your house sometimes three times a week and the sender will eventually get around to fixing the problem ten years later and apologize. It seems painfully obvious that homeowners should be compensated, but for what?

     Could the homeowners file a 42 USC Sec. 1983 action? These actions are reserved for when the government violates the civil rights of one of its citizens and would probably be inapplicable here. There doesn’t seem to be a civil right that has been violated. The police knocked on the homeowners’ door and asked questions, but any person can do that. They did not illegally search or seize any of the homeowners or their property. From the news article, it doesn’t seem as if the police did anything illegal, whether they had been police or not.

     How about negligent infliction of emotional distress? From Wikipedia: “The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual.” Most states will not recognize this tort and with good reason, but if there was ever a time to apply it, this is the case. Ignoring the numerous hurdles of suing the state government, this is a case of extreme neglect on the part of the state that has led to great emotional distress on the part of these elderly homeowners. The previous homeowner, who endured thirty similar visits in three years from police and fire crews, thought that someone was out to get him and moved trying to escape his tormentors. One of the current homeowners has suffered high-blood pressure and dizzy spells when the police knocked. All of this because a negligent computer system tester used a real address in a test and no one on the entire police force could be bothered to fix it over the course of ten years. But in reality, with the disfavored status of this tort and the hurdles of suing the state, the odds of the homeowners ever seeing any compensation from the negligence are slim.

     So what can the homeowners do? Embarrassing the police in the local newspaper seems like a good start. Other than that, I don’t know. I doubt a city commissioner will fire an otherwise competent police chief over this (I would, but I’m not a nice guy), so complaining won’t accomplish much. They are pretty much left in the same position of every other person who suffers at the hand of government incompetence, having to suck it up and move on.

Stephen Burch

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