Growing Number of Prosecutions for Videotaping the Police

July 19, 2010— -- That Anthony Graber broke the law in early March is indisputable. He raced his Honda motorcycle down Interstate 95 in Maryland at 80 mph, popping a wheelie, roaring past cars and swerving across traffic lanes.

But it wasn't his daredevil stunt that has the 25-year-old staff sergeant for the Maryland Air National Guard facing the possibility of 16 years in prison. For that, he was issued a speeding ticket.

It was the video that Graber posted on YouTube one week later -- taken with his helmet camera -- of a plainclothes state trooper cutting him off and drawing a gun during the traffic stop near Baltimore.

In early April, state police officers raided Graber's parents' home in Abingdon, Md. They confiscated his camera, computers and external hard drives. Graber was indicted for allegedly violating state wiretap laws by recording the trooper without his consent.

Arrests such as Graber's are becoming more common along with the proliferation of portable video cameras and cell-phone recorders. Videos of alleged police misconduct have become hot items on the Internet. YouTube still features Graber's encounter along with numerous other witness videos.

"The message is clearly, 'Don't criticize the police,'" said David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber's defense team. "With these charges, anyone who would even think to record the police is now justifiably in fear that they will also be criminally charged."

Carlos Miller, a Miami journalist who runs the blog "Photography Is Not a Crime," said he has documented about 10 arrests since he started keeping track in 2007. Miller himself has been arrested twice for photographing the police. He won one case on appeal, he said, while the other was thrown out after the officer twice failed to appear in court.

"They're just regular citizens with a cell-phone camera who happen to come upon a situation," Miller said. "If cops are doing their jobs, they shouldn't worry."

The ACLU of Florida filed a First Amendment lawsuit last month on behalf of a model who was arrested February 2009 in Boynton Beach. Fla. Her crime: videotaping an encounter between police officers and her teenage son at a movie theater. Prosecutors refused to file charges against Sharron Tasha Ford and her son.

Videotaping as a Tool for Citizens

"The police have cameras in their cars. I watch cops on TV," Ford said. "I'm very hurt by what happened. A lot of people are being abused by police in the same way."

Ford's lawyer, James Green, called videotaping "probably the most effective way to protect citizens against police officers who exaggerate or lie."

"Judges and juries want to believe law enforcement," he said. "They want to believe police officers and unless you have credible evidence to contradict police officers, it's often very difficult to get judges or juries to believe the word of a citizen over a police officer."

In Palm Beach County, Fla., Greenacres resident Peter Ballance, 63, who has Asperger's syndrome and has to record conversations to help his memory, settled a civil lawsuit for $100,000 last year. In August 2005, police officers tackled and arrested Ballance for refusing to turn off his tape recorder.

"You know what," said the officer, according to court documents, "I still don't want that recording device on."

"Well, it's on," Ballance replied.

"It is a third-degree felony," the cop said. "If you want to push it, you can go to jail for it."

"Well, I'm pushing it now," Ballance said.

Ballance snapped pictures of the officers. One of the cops delivered a blindside tackle. Ballance had to be treated for injuries and cardiac symptoms at a hospital on the way to the county jail. At the hospital, officers refused to let Ballance use his recorders to communicate with doctors, court papers said.

In Portsmouth, N.H., earlier this month, Adam Whitman, 20, and his brother were charged with wiretapping, a felony in the state for videotaping police on the Fourth of July when they were called to a party and ended up arresting 20 people, many for underage drinking.

A police spokesman told ABCNews.com that the wiretapping charges were being dropped.

Witness Videos on the Rise

Across the country, arrests such as these highlight the growing role of witness video in law enforcement. A dozen states require all parties to consent before a recording is made if there is a "reasonable expectation of privacy." Virginia and New York require one-party consent. Only in Massachusetts and Illinois is it illegal for people to make an audio recording of people without their consent.

"The argument is, 'Well, can a police officer beside the highway have a private conversation with somebody that they pull over?'" said Joseph Cassilly, the Harford County prosecutor handling Graber's case.

Cassilly added, "Suppose a police officer pulled you over and he wanted to have a talk with you. 'Sir, I smell alcohol on your breath. Can you talk to me about how much you've had to drink? Would you want somebody else to stop by and record that and put it on the Internet?"

Rocah of the ACLU disagreed.

"It's not that recording any conversation is illegal without consent. It's that recording a private conversation is illegal without consent," he said. "So then the question is, 'Are the words of a police officer spoken on duty, in uniform, in public a 'private conversation.' And every court that has ever considered that question has said that they are not."

Rocah said actual wiretapping prosecutions, though rare, are happening more frequently. But intimidation with the threat of arrest for taping the police is much more common.

"Prosecution is only the most extreme end of a continuum of police and official intimidation and there's a lot of intimidation that goes on and has been going on short of prosecution," he said. "It's far more frequent for an officer to just say, 'You can't record or give me your camera or give me your cell phone and if you don't I'm going to arrest you. Very few people want to test the veracity of that threat and so comply. It's much more difficult to document, much more prevalent and equally improper."

New Video, Old Debate

In many jurisdictions, the police themselves record encounters with the public with dashboard cameras in their cars.

"Police and governmental recording of citizens is becoming more pervasive and to say that government can record you but you can't record, it speaks volumes about the mentality of people in government," Rocah said. "It's supposed to be the other way around: They work for us; we don't work for them."

Graber's YouTube video, meanwhile, has helped renew the old debate about whether government has a right to keep residents from recording the police. There is even an "I support Anthony Graber and his right to freedom of expression" Facebook page with close to 600 friends.

"Suffice it to say that our client is terrified at the prospect of these criminal charges," Rocah said.