Troy Davis was executed last night.

I can’t explain the details surrounding his case better than Jeff Gamso has; I can’t argue with Mark Osler’s article on cnn.com explaining why we should err on the side of not murdering someone. It almost seems like there is nothing left to say… but I can’t sit now and say nothing.

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) has been construed in Williams v. Taylor, 529 U.S. 362 (2000) and Duncan v. Walker, 533 U.S. 167 (2001) as furthering the principles of finality of judgment, comity and federalism. Which is to say that the law tries to prevent people convicted of state crimes to be able to supplant the state issue with a federal issue in an effort to avoid dealing with the state issue. For example, someone who has been convicted of murder and sentenced to death in Georgia can try to raise the federal constitutional issue that he may, in fact, be innocent. If we allow this purely hypothetical person to continue living based on his federal claim, we are allowing him to supplant the state issue with a federal issue.
So the courts have the difficult job of balancing the interests of federalism with the interests of maybe not murdering an innocent man.

You might be inclined to argue that this law furthering federalism is a general one, and the pesky issue of innocent people being killed is an unfortunate side effect. Wrong! The name of the law has “Effective Death Penalty” in it.

I’m not really being fair, you hardly ever hear federalism as the reason why federal appeals of death sentences are rejected. (After the state level avenues for “relief” are exhausted, that is. Federalism is the excuse used for all federal appeals to be ignored until then, so it does play a large role in this farce.)

The phrase that’s all the rage, though, is “finality of judgment.” What does that mean? Is it simply a way to tell society, to paraphrase Raymond Chandler, “When we screw up a judgment, god damn it, it stays screwed up.”?
Most articles I’ve read about this concept focus on the victim’s family; they need closure, they need satisfaction, they need to know that there is a finality to the judgment. That’s special.
I don’t mean to disparage those people who have had their whole lives ripped apart by a horrific crime; I have nothing but sympathy for them. However, why are we making the victim’s family’s feelings a higher priority than discovering the truth and saving a possibly innocent man’s life? Do they need closure and a sense of finality? There is therapy to help with that, they don’t need laws.

Let’s save our laws for those who need it. Like potentially innocent people who are murdered in the interest of finality.

Like Troy Davis.

The US Supreme Court struck down as unconstitutional California’s ban on selling and renting violent video games to minors.
http://www.supremecourt.gov/opinions/10pdf/08–1448.pdf
Which is how it should be.
Except it’s not, really.

I’m still reading the opinion (linked to above), but all is not well in First Amendment-land.
The majority does strike down the law, and on the grounds that you would assume — that it’s an impermissible violation of First Amendment rights.

Unfortunately, J. Alito and CJ. Roberts only concur based on the vagueness and overbreadth of the statute and make it clear that they are not concerned with first amendment concerns.

In this case, California has not provided any evidence that the California Legislature intended the law to be limited in this way, or cited any decisions from its courts that would support an “oldest minors” construction.
For these reasons, I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so.

(citations removed, emphasis added)
Their concurrence then goes on for pages, describing exactly how horrible these video games are.

J. Breyer has the same view as Alito and Roberts, but he’s comfortable with the way the statute is structured.

Then we get to J. Thomas’s dissent.
Unsurprisingly, J. Thomas decides that the original intent behind the first amendment demands that any speech to minors go through parents or guardians. Evidently, the state legislature is a valid proxy to parents and guardians.
Thomas backs up this claim by describing how the Puritans lived, and the recognized philosophy at the time the Bill of Rights was ratified. Seriously.

Was this a triumph for First Amendment rights? Well… yes, but I’m afraid it is a very limited and will be a very short lived victory.

RICKY SAVOY
v.
STATE OF MARYLAND

http://mdcourts.gov/opinions/coa/2011/120a09.pdf

This opinion, from the MD Court of Appeals, involves a manslaughter case from 1994 in which the trial judge gave jury instructions that changed the definition of “reasonable doubt.“

The pertinent part of the instructions are quoted in the opinion:

[T]he defendant is presumed innocent of the charges until proven guilty beyond a reasonable doubt and to a moral certainty. He comes into court clothed with this presumption of innocence, which remains with him from the beginning to the end of the trial as though it were testified to and supported by
evidence that the defendant is innocent.

The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial for every element of the crime charged. The defendant has no burden to sustain and does not have to prove his innocence.

The charges against the defendant are not evidence of guilt. They are merely complaints to let you and the defendant know what the charges are.

After the jury has fairly and carefully reviewed all the evidence in this case, if you feel that the prosecution has failed to prove beyond a reasonable doubt and to a moral certainty all of the evidence necessary to convict, then you must acquit the defendant.

The test of reasonable doubt is that the evidence that the State has produced must be so convincing that it would enable you to act on an important piece of business in your every day life. The words “to a moral certainty” do not mean an absolute or mathematical certainty but a certainty based upon convincing grounds of probability. The phrase “beyond a reasonable doubt” does not mean beyond any doubt or all possible doubt. But as the words indicate, beyond a doubt that is reasonable.

You are further instructed that the burden is on the State to prove beyond a reasonable doubt not only that the offenses were committed, but that the defendant is the person who committed them.

(Emphases added.)

The Court of Appeals held that this was an error infringing the defendant’s constitutional right to a fair trial.
The larger part of the opinion involves the procedural issue regarding whether the error was plain and structural, so as to be preserved despite the lack of an objection at the trial.

My interest in this stems from the dissent. Judges Harrell and Battaglia both feel that the instructions, while containing problematic language, were not plainly erroneous because:

In the present case, there is language present both immediately following the problematic phrase, as well as earlier in the instruction, that mitigates the presence of the principal problematic phrase. Indeed, the words “‘‘to a moral certainty’ … mean … a certainty based upon convincing grounds of probability” were flanked by sufficiently curative language, such that any concern over misinterpretation or misconception was dispelled.
…
It is not likely that a jury would overlook these remonstrances and misinterpret the instructions as calling for “anything but” a personal and moral satisfaction of any reasonable doubts before finding guilt.

That is an awful lot of confidence in the jury. It’s particularly troubling to me that the confidence is based on the “curative language” flanking the problematic language.
Adding more instructions, instructions that are contradictory or differing from other instructions, is no way to clarify something.

            The Wiretap law in Maryland exists to protect society’s right to privacy by protecting conversations we engage in, thinking that we know who can hear us. All laws, however worded, carry with them the potential to be misused, to criminalize activity unintended by the legislators. The Maryland Wiretap law has been the focus of media attention recently because of efforts of police officers to use the Wiretap law to criminalize videotaping police interactions. This is an inappropriate application of the current law that does nothing to further the public policy interest in privacy. Furthermore, such an application of the Maryland Wiretap law goes against the interest society has in being able to supervise the police.

I will analyze the Maryland Wiretap law under which individuals have been prosecuted for using camcorders to record police officers while the officers are on duty and in public. Then I will set out a public policy argument that society has an interest in being able to record police interactions. Police officers have an enormous amount of state-sanctioned power, and the possibility of their misuse of it is troubling. No current law prohibits an individual from recording a police encounter,  because  public policy supports an individual’s right to record a police encounter – whether the individual’s own encounter or a third-party’s encounter with the police.

            On March 15 of this year, Anthony Graber, a staff sergeant in the Maryland Air National Guard and a computer systems engineer and married father of two, was riding his motorcycle on I-95 when he was confronted by a plainclothes Maryland State Police trooper as he came to stop at an exit. Graber had a video camera prominently mounted on his helmet to record his ride, and the camera recorded the officer’s actions and statements at the outset of the encounter, which ended with Graber receiving a ticket for speeding. Five days later, Graber posted the video to YouTube[1] showing the encounter, in which the state trooper leaps out of his unmarked vehicle, not in uniform, and with his gun drawn, yelling at Graber for several seconds to get off of his motorcycle before identifying himself as a police officer. On March 15, the trooper became aware of the video, and obtained an arrest warrant charging Graber with a violation of the state wiretap law.[2] Based on the wiretap charges, the State Police obtained a search warrant authorizing them to seize all of the Graber family’s computers and hard drives, along with Graber’s video camera. Several weeks later, the Harford County State’s Attorney obtained a grand jury indictment adding several additional motor vehicle charges, and additional wiretap violations, including one alleging possession of “a device… primarily useful for the purpose of surreptitious interception of oral communications,” referring to the widely sold and clearly noticeable GoPro video camera that had been mounted on Graber’s motorcycle helmet.[3]

            Anthony Graber’s story is not a unique or rare occurrence. While it would be an exaggeration to say that it occurs on an almost daily basis, situations like this still come up alarmingly often. This incident occurred in Maryland, but the same thing happens in numerous other States.  In Massachusetts, for example, the police force often uses the Massachusetts Wiretap Law to prosecute people videotaping law enforcement encounters. Even when such laws are not available to law enforcement, many police officers who do not want to be videotaped demand that individuals not do so. Photojournalist and law student Carlos Miller runs a blog, “Photography is Not a Crime[4],” which he started when he was improperly arrested and beaten by police for videotaping and photographing officers in Miami, Florida.[5]  The blog tries to publicize the negative view most police officers have of being photographed or video recorded and the improper way in which many officers react to being recorded. Just the front page of his site lists ten occurrences; the list includes incidents in New Jersey, California, Florida, Arizona, Virginia and Hawaii. The New Jersey incident included a police officer who threatened to damage the recording camera and jail the citizen who was doing the recording.[6] During the Florida incident, a bystander was recording a police officer arresting somebody for drug charges and when the officer noticed the recording, he demanded the tape. When the recording individual refused, he was arrested.[7]  In the California incident, the police officers who were being recorded assaulted the videographer.[8]

             Not all police officers view video recordings as a threat. Many police departments have discovered the utility of video recordings – in the context of traffic stops, interrogations and confessions.  An individual’s ability and right to videotape law enforcement personnel is not only protected but is also a valuable and important tool in keeping those charged with enforcing our laws behaving properly. The history underlying the Maryland Wiretap law, as well as recent decisions regarding the law, are consistent with an understanding that the law only applies where there is a reasonable expectation of privacy by the parties whose conversation is being recorded. While there have not been any judicial decisions regarding the privacy status of a traffic stop in Maryland, there are numerous cases outside of Maryland[9] that lead to the conclusion that there is no reasonable expectation of privacy during a traffic stop. Finally, there are excellent reasons to allow citizens to record police officer interactions, for First Amendment reasons as well as to police the police. The first question to address   in determining whether the Maryland Wiretap law is being applied in a manner that accords with the Maryland and Federal legislative intent is whether the First Amendment applies to protect those who record their encounters with the police. . The next question is whether video recordings have helpful in terms of policing the constitutionally recognized obligations of law enforcement officials. The final question is whether this is a situation that should warrant allowing private individuals to take the part of policing law enforcement.

            The Maryland Wiretap law[10] was enacted in 1973 and was based in large part on the federal wiretapping and electronic surveillance law from the Omnibus Crime Control and Safe Streets Act of 1968.[11] The Act generally limits various forms of eavesdropping. Except as specifically authorized in the statute, an individual may not “willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral or electronic communications.”[12] In addition, it is unlawful to willfully use or disclose the contents of a communication obtained in violation of the Wiretap Act.[13] The definitions of the key terms are crucial to understanding the Act. The term “intercept” is defined as “the aural or other acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical, or other device.“[14] Thus, video recording alone, without the capture of an audio communication, is not regulated by the Wiretap Act.[15] The statute defines “oral communication” as “any conversation or words spoken to or by a person in private conversation.“[16] The Maryland Wiretap law lists several exceptions to the prohibition; one of these exceptions is a police officer who records a vehicle stop.[17]The vehicle stop exception came about because in 1990, when the police department started videotaping traffic stops, there was concern that a conversation between a police officer and a motorist during a traffic stop might be considered private, and covered by the Act. As a result of this concern, The Department of Public Safety and Correctional Services proposed legislation to specifically authorize the interception by police of conversations during traffic stops, which was adopted, with minor amendments, by the General Assembly in 1992. That provision allows a law enforcement officer to intercept an oral communication as part of a video recording of the traffic stop, if the following conditions are met: (1) the officer is a party to the communication; (2) the officer has been identified as a law enforcement officer to the other parties; and (3) the law enforcement officer informs the other parties to the communication.[18]

            Based on the fact that the Maryland legislature decided an exception to the Maryland Wiretap law was necessary for traffic stops, it appears that the premise of the 1992 legislation was that a conversation between the police officer and the motorist during a traffic stop is a “private conversation.” Such a conclusion would suggest that there is a reasonable expectation of privacy between the police officer and the stopped motorist, and that would weaken an argument for allowing the recording of police officers, since the Wiretap law prohibits recordings of private conversations. However, in 2000, the Chief of Police for Montgomery County asked the Attorney General for an advisory opinion as to whether a police officer who inadvertently records a traffic stop without meeting the three requirements in the traffic stop exception[19] violates the Wiretap Act. While a large part of the opinion is based upon the inadvertantness of the recording, part of the Attorney General’s answer was: “It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as ‘private conversations.’”[20] Furthermore, there have been cases in other states determining that conversations in public locations — even when involving police encounters — are not considered private. These cases will be briefly reviewed below. The black letter law is straightforward but minimal; therefore, we will look further into the legislative history to determine how broadly the statute should be construed.

            While there is little legislative history available, the legislative intent behind the act is straightforward. The differences between Maryland’s law and the federal statute are few and clear. The federal statute was originally passed to clarify the permissibility of the use of wiretaps in regards to a recorded conversations’ admissibility in court, and the exceptions to the statute were focused on granting law enforcement the right to use wiretaps in the course of their investigations[21]. The Maryland law was similarly conceived.

One clue as to the intent of the Maryland legislature in passing the wiretap law is provided by Congress’s decision to modify a similar provision within the federal Wiretap law. Brooke E. Carey discusses the significance of the statutory term “willfully” in the federal statute.[22] While the Maryland statute uses the word “willfully” based upon the original language of the federal law, the revised, post-1986 federal law replaced “willfully” with “intentionally.” The Maryland Court of Appeals defined “willfully” in the MD wiretap law as “intentionally-purposefully,” which is to say an individual has only to know that he or she is recording audio and need not know whether or not the act is illegal which mirrors the post-1968 use of “intentionally” in the federal law. All this supports the conclusion that the MD legislative intent is the same as the federal legislative intent.

The federal Wiretap law was included in the Omnibus Crime Control and Safe Streets Act of 1968 in order to respond to the U.S. Supreme Court’s decisions Berger v. New York[23] and Katz v. United States.[24] Berger v. NY is the case that defines the constitutional requirements in obtaining a wiretap warrant be governed by the Fourth Amendment. In Katz v. US the Supreme Court ruled that government “activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”[25] The United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, commonly referred to as the Church Committee, described those Supreme Court cases as holding “that the Fourth Amendment did apply to searches and seizures of conversations and protected all conversations of an individual as to which he had a reasonable expectation of privacy”.[26] The federal Wiretap law[27] was created to conform to the Supreme Court’s holdings that electronic surveillance is subject to fourth amendment constitutional strictures.[28]

Even with this basic understanding of the legislative intent behind the law, we are left at a sort of crossroads. In July of 2010, Attorney General Gansler was asked about the application of the Maryland Wiretap law to situations in which citizens record public activities of police officers. As Attorney General Gansler’s letter stated, there have been no cases before the Court of Appeals to help give direction to the question of whether a police officer has a reasonable expectation of privacy while on duty and acting in the course of his or her duty. Several articles have been written that touch on this question, and Attorney General Gansler stated that police officers should not be regarded as having a reasonable expectation of privacy while on duty. However, as Attorney General Gansler points out, without any decisions by the Court of Appeals, there is room for the law to be interpreted to grant police officers’ conversations while in the course of their duty the expectation of privacy.

The question to Attorney General Gansler is based on the tension between the interest of officer safety and the interest of monitoring police activity. One important method for maintaining officer safety is for the officer to remain in control of the situation; very often actions that are reasonable and necessary to control a situation can be seen as unreasonable out of the context of the interaction. A concern voiced by the law enforcement community is that if civilians are permitted to record police who are on duty, and the officers know that their actions can come under public scrutiny later, they might not be willing to do what is necessary to control the situation. Such a hypothetical concern must be balanced against the possibility for police misconduct and the deterrent effect that allowing recordings would have on potential offenders.       

Attorney General Gansler lays out three possible alternatives should this question go to the Court of Appeals in Maryland. The first possibility is that the court could find that conversations between police officers and individuals during a police encounter are considered a private conversation. This is the alternative that the prosecutors and officers who charge people like Anthony Graber would prefer.  Despite this view by police, Attorney General Gansler opines that there is very little chance of the Court of Appeals adopting this approach, noting that no State has ever held this way in a similar case. There have been numerous cases that determined that conversations that took place in public locations or in the presence of third parties were not considered private.[29]  Furthermore, in light of the interest in officer safety, an on-duty officer’s “expectation of privacy” seems more like an “expectation of control.” While such an expectation has value from an officer safety perspective, it would be a convoluted reading of the Maryland Wiretap law. The Wiretap law focuses on privacy and not the concerns of officer safety.

The second alternative also moves away from the language of the statute, specifically the language indicating that only “private” conversations are protected, and suggests that the Wiretap Law should apply if the individual surreptitiously records the conversation during the encounter, no matter whether the parties to the conversation have a reasonable expectation of privacy or not. This is consistent with the decision of the Massachusetts court in Commonwealth v. Hyde[30]. In Hyde, since the Massachusetts statute specifically prohibits the act of “secretly” hearing or recording the contents of an oral communication, without specifying whether the oral communication must be private, the Court held that an individual who surreptitiously recorded his conversation with the police during an encounter was violating Massachusetts’s Wiretap law.[31]  It is very unlikely that the MD Court of Appeals would reach a conclusion similar to that of the Massachusetts court in Hyde, in light of the fact that the Massachusetts statute does not include a “private conversation” element, whereas the Maryland statute explicitly prohibits the recording of “private conversations.”[32]

The final possibility is that the court could determine that communication during a traffic stop is not considered a “private conversation” and is not a protected communication under the Maryland Wiretap Law.

            On September 27th, Judge Emory Plitt in the Circuit Court for Harford County dismissed the Wiretap charges against Anthony Graber. Judge Plitt stated that law enforcement officers do not have a reasonable expectation of privacy during encounters with citizens while in public places. He based his decision on the “overwhelming weight of authority from other courts.“[33] Judge Plitt then went on to cite over twelve cases which imply that police officers do not have a reasonable expectation of privacy during encounters with citizens in public places.

            The first case Judge Plitt cited is State v. Clark[34]. In Clark the Washington court held that a conversation on a public road in the presence of a third party and within sight and hearing of a passerby is not private. The next case cited is State v. Smith[35] in which the Louisiana court found that a prosecutor and a witness who were speaking loudly enough to be heard through a closed door did not have a reasonable expectation of privacy. Next, in Kee v. City of Rowlett,[36] the Fifth Circuit court held that there could be no reasonable expectation of privacy in conversations that took place in an outdoor, publicly available space. Then, in Lewis v. State,[37] the Washington court held that there can be no reasonable expectation of privacy in traffic stops. In Johnson v. Hawe[38] the Ninth Circuit court held that there was no violation of state privacy statutes by tape recording a law enforcement officer in the performance of his duties on a public street. Finally, in People v. Beardsley,[39] the Illinois court held that conversations that take place in a police car are not private conversations.

            Judge Plitt then went on to cite Maryland appellate cases that touch on the expectation of privacy in general. In McCray v. State[40] and Stone v. State[41] the court held that there was no expectation of privacy on a public street. The facts of McCray involved police surveillance, via videotape, of McCray while he was walking from his home to the MVA across the street. The surveillance was conducted without a court order or search warrant. The court in McCray held that the videotape did not require court order or warrant, since it was a public location.[42] In Stone, the police tracked the defendant’s car via a cell phone hidden within a chloroform container. The court held that since there is no right to privacy on the public streets, the cell phone was only used to detect information that would have been available even without the phone, and therefore did not violate the 4^th Amendment.[43] In Fowler v. State[44] the court held that there was no expectation of privacy when the police were able to see bloodstains inside the defendant’s car from the street, despite not having a search warrant.[45]

            Judge Plitt sums up the case by stating, “The encounter in this case took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the Troopers had any reasonable expectation of privacy in their conversation with the Defendant which society would be prepared to recognize as reasonable.“[46] Since the federal Wiretap law that the Maryland Wiretap law is modeled after was prompted by Fourth Amendment cases concerning the admissibility of electronically recorded conversations, and the prosecutions of individuals for recording police officers are based upon the Maryland Wiretap law, the same doctrine of “reasonable expectation of privacy” must apply equally to both situations.

            Judge Plitt quoted and referred to Attorney General Gansler’s letter throughout his opinion. Despite the decision, this case does not end the matter, since this is merely a state circuit court opinion, it is not binding precedent; it is also unlikely that the State will appeal the dismissal since that would risk the creation of binding precedent. This leaves open the possibility that a case like this one can be raised again at a later time and that court could still possibly rule that police officers have a reasonable expectation of privacy while on duty, in public.

            Even if this possibility seems unlikely, the Maryland legislature could always change the language of the Wiretap Law to follow the Massachusetts statute that does not require the conversations to be private. Alternatively, the legislature could decide to pass an explicit exception to the privacy requirement in regards to police officers. For these reasons, I explore an important public policy argument as to why video recording of police officers’ encounters with individuals should be allowed and encouraged.

            The public policy that is currently served by the Maryland Wiretap law would be equally served by allowing video recordings of public police interactions. The Maryland Wiretap law was intended to maintain an individual’s right to privacy while still allowing the police to make use of wiretaps in a crime fighting capacity. The statute does this by prohibiting people from listening in on private conversations and prohibiting the use of products that are meant to intercept private communications.[47] The exceptions that were codified in the Act merely carve out small, permissive niches, such as allowing police officers to use wiretapping equipment in the course of their investigations. The Attorney General’s advisory opinion in response to the Montgomery County police department’s initiative in installing audio/visual recording equipment in their patrol cars took the position that only inadvertent interception of private communication would be justified. Since the underlying purpose of the law is to protect privacy and prevent crime, allowing citizens to record public interactions with police for the purpose of preventing misconduct would fall well within the public policy of the Maryland Wiretap law and is actually a natural and logical outgrowth of it. 

            Let us revisit the case against Anthony Graber; the counts against him (including the three felonies under the Wiretap law) carried a maximum penalty of 16 years in prison. Aside from the patent absurdity of the claims against him, the vastly overbroad attack against an otherwise law-abiding citizen, the invasion of privacy and the cost to the Md. taxpayers and the court system, this is also a situation that sets a dangerous precedent. Using the Maryland Wiretap law to prosecute citizens who have done nothing other than to leave a video camera running is an abuse of the State’s power. It also has a chilling effect on other people who might otherwise be willing to watch out for police misconduct.

An additional argument in favor of recording police interactions touches on the First Amendment. Video recordings of police encounters exist in a grey area of protected speech; it is not immediately clear whether such activities should be protected under the First Amendment. The first issue is whether videotaping of public events is protected under the First Amendment. Many courts have ruled that it is. Although Judge Plitt neatly sidesteps the issue by interpreting the statue to require that the conversation be private, he does conduct a First Amendment analysis in regards to the Transportation Law offense, count seven of the charging document. The seventh count that Anthony Graber was charged with alleges that he drove recklessly, with the intent to video record the reckless driving.[48] The specific statute in play provides that: “A person may not commit or engage another person to commit a violation [of the vehicle law punishable by imprisonment or reckless driving] for the purpose of filming, video taping, photographing, or otherwise recording the violation.…“[49] Judge Plitt cites Pendergast v. State[50] which requires that any criminal statute which implicates the free speech protections of the First Amendment be narrowly construed. He also cites Iacobucci v. Boulter[51] where the court held that a video recording of a conversation within a town hallway was protected and Forydyce v. Seattle[52] where the court held that the right to record a protest march was protected. Those cases are similar to count seven against Anthony Graber in that the statute attempts to make criminal a protected activity; for this same reason, Judge Plitt strikes down the current version of Maryland Transportation 21–1126.

            Although Judge Plitt does not question the constitutionality of the Wiretap law as applied to prohibit the video recording of a public police encounter, there is ample precedent to suggest that such an application would be unconstitutional. The only reason that the video recording in this situation might be different from those other public video recording cases, where First Amendment protection was found, is that this involves police officer interactions with individuals. They are encounters in public. They are encounters that should be defined as public interactions with no reasonable expectation of privacy.  The fact that they are recordings of police officers in the course of their duties should not substantively change the nature of the act of video recording in public.

            An article in the Yale Law Journal by Dina Mishra, “Undermining Excessive Privacy for Police: Citizen Tape Recording to Check Police Powers,”[53] explores this topic in light of a case under the Massachusetts Wiretap statute. Ms. Mishra points out that the First Circuit recognized that the First Amendment protects citizens who distribute recordings of illegal police conduct, but probably does not protect the producer of such a recording.[54]  The reasoning behind this conclusion rests on the Supreme Court’s decision in Bartnicki v. Vopper,[55] where the court implied that disclosure is protected when it constitutes “the publication of truthful information of public concern.“[56] The Court was not willing to protect “obtaining the relevant information unlawfully.”[57] What that means, practically, is that the First Amendment does not protect an individual from state liability for recording police, even when the citizen alleges police misconduct. While this may weaken our supposition that the video recording of police encounters is protected by the First Amendment, that will only be a concern if the Maryland Wiretap law applies to public police encounters.

            The next aspect of the public policy argument for allowing individuals to record police encounters comes into play when trying to determine whether video recordings of police encounters have special constitutional significance.–An important question is how helpful are video recordings in terms of policing the police? If the recordings do play an important role in supervising police activity, then they can be considered material of public concern. The Supreme Court does acknowledge the First Amendment protection of the disclosure of material that is of public concern.  Police agencies in numerous states have been using video recordings during interrogations for a while. Nearly every state has jurisdictions with police departments that regularly record custodial interrogations. The benefits of having audio or — even better — audiovisual recordings should be obvious, but in the Report of the Supreme Court Special Committee on Recordation of Custodial Interrogations, a Chief of Violent Crimes Unit in Minnesota states that, although he was a critic of mandatory recordations, he is now a proponent of them and lists why that is so. The first benefit the police chief mentions is that the tapes tended to eliminate fights over the voluntariness of a defendant’s statement and the waiver of Miranda warnings; they provide conclusive proof that the Miranda warnings were read and waived. The second benefit is that the tapes tended to resolve fights over what the defendant actually said or meant in his statement… The sixth benefit listed is that juries were generally willing to accept necessary interrogation tactics such as the good cop-bad cop approach or appropriate trickery or deceit, necessary to conduct a probing inquiry of the defendant…

            The first recommendation that the Committee offered is that the Supreme Court should exercise its supervisory authority over the administration of criminal justice to encourage electronic recordations of custodial interrogations. Among the various reasons for this is the fact that recordation can eliminate the risk of impermissible interrogation practices and can protect and enhance the police officers’ credibility and protect against complaints of police misconduct.

All of Maryland’s police departments regularly record interrogations, as required by the Maryland Code of Criminal Procedure. The statute states that the department shall make “reasonable effort… whenever possible.“[58] Other states have proposed and several have passed statutes mandating recordation of custodial interrogation.[59]Alaska requires recordation when a custodial interrogation occurs in a place of detention.[60] Minnesota requires recordation when questioning occurs in a place of detention but also includes recordation of interrogation outside of a place of detention if feasible.[61] Texas requires recordation of statements of an accused made as a result of custodial interrogation.[62] Illinois requires recordation of statements made by an accused in homicides as a result of a custodial interrogation at a police station or other place of detention.[63] Maine requires recording of law enforcement interviews of suspects in serious crimes.[64]

            It is clear from the policy in numerous police departments, as well as the recommendations of the Cooke Report, that there is an overwhelming public benefit that video recording provides in situations where there is a possibility of miscommunications, difference of opinion as to recollection of events, and the possibility of actual or falsely alleged police misconduct. Transferring the currently acknowledged benefits and acceptance of recording custodial interrogations to recording police encounters should take minimal effort. Police departments in many states, Maryland included, have already implemented a police cruiser dashboard camera system.[65]

            It is important that, until now, all formally recognized recording is recording that is done by the police. There are concerns that if the footage stays in police control the benefits of recording could be diminished. If the police officer is engaging in misconduct, it would be easy to turn off a recording device, or tamper with the footage after the fact. A dissenting Justice, Lee Ann Dauphinot, in the  Texas Court of Appeals opinion Williams v. Texas states, “An appellate court should give no weight to testimony that is disproved by the objective record of the actual events… the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record.”[66]

            Justice Dauphinot goes on to question the lack of action regarding the “[R]epeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment….”[67]

There are numerous occasions when police encounters — both with and without alleged police misconduct — were supposed to have been recorded, but the recordings went missing. Radley Balko of Reason Magazine has reported that 1,300 dashboard camera videos in the Nashville police department were erased. The police department blamed the video camera vendor. The vendor blamed the police department. More disturbing, some DUI defense attorneys who had sought video of their clients’ arrests were told by the police that the video did not exist, not that they had been erased.[68]

             A pregnant illegal immigrant, who was arrested two years ago for a minor traffic violation, was jailed and forced to give birth while shackled. The officer who made the arrest claimed that there was no video of the incident, but the woman’s lawyers were able to obtain the video (this past year), although portions were missing. The video opens with the officer telling the woman that the camera is on.[69]

            In Birmingham last year, police officers beat an unconscious individual after he crashed as a result of a high-speed chase. The dashboard camera was turned off mid-beating, and the police department gave the district attorney’s office a version of the video with the beating edited out.[70]

            Footage of the beating of the University of Maryland student, Jack McKenna, after a basketball game last year was mysteriously missing from the footage taken by the police surveillance camera pointed at the spot where the beating took place. The police officer in charge of the campus surveillance system is married to one of the officers who was disciplined in the McKenna case.[71]

            In 2005, a reporter in Prince George’s county claimed she was abused during an encounter with police when she and a cameraman were pulled over by seven police cruisers. Prince George’s county officials never gave her attorneys the dashboard camera footage of the incident; the excuse given was that all seven cameras were malfunctioning at the time.[72]

            Each of these anecdotes merely serves to underline the point that there is an inherent imbalance when only one party in a police encounter is permitted to record the encounter and that there is definitive benefit in allowing individuals as well as police officers to record police encounters.

            Recently, legislation has been proposed that would amend the Maryland wiretap law to explicitly allow citizens to video record police officers who are on duty and in public. This legislation is in response to the various detentions of Maryland citizens who were recording police officers in public.[73] While this is an excellent start, the proposed amendment does not go far enough. There is a proposed bill in Connecticut that authorizes a civil action for damages against officers who have interfered with a person’s right to record. [74] Maryland’s proposed amendment needs a provision like Connecticut’s; without civil liability, there is still little to deter a police officer who is so inclined from ignoring an individual’s right to record the encounter. Since a substantial part of the importance of allowing a citizen to record police interactions is an effort to mitigate potential police misconduct, that interest would be well served by backing up the individual’s right with civil penalties should a potential police malefactor try to interfere.

            Another concern with Maryland’s proposed bill[75] is that it is to be an exception to the currently existing Maryland Wiretap law.[76] As has been established earlier,[77] the underlying intent of the Maryland and Federal Wiretap laws are to offer Fourth Amendment rights to conversations in private. Allowing citizens to record police officers in public is a completely different issue, and one that would be better suited to its own law.

            Judge Plitt’s “Final Observation” is both succinct and extremely enlightening: “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 a public fora, we should not expect our actions to be shielded from public observation. ‘Sed quis custodiet ipsos custodes.’”[78]

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Greenfield has written about it, as has Orin Kerr.

The court states that:

It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.

Fourteen days. Fourteen days from a run-in with the police, accusing you of a crime. Fourteen days from being stuck in an interrogation room with angry cops. Should we assume that those fourteen days are a carefree time, full of laughter and gaiety? Are those two weeks a vacation from the stress and concern over the accusation?

I understand that the police practically require a bright-line rule when they’re in the field. I respect the difficulty in formulating such a rule. I seriously question whether this rule makes any sense whatsoever.

Let me give you some background about myself: I’m more attuned to absorb broad knowledge than deep understanding. I can work at truly incisive wisdom about a topic, but my default mode is sound-bites and headlines. What can I say, at least I recognize it. For that reason, I was aware of some Supreme Court nominations and cases that came and went, but I had no more than a vague awareness that they were there.

Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court was a fascinating read. It gave me historical and legal background about the major Supreme Court cases of my time. It gave me historical and political background about the Supreme Court justices of my time. I found the style engaging and interesting, if a bit long winded. There were entirely too many occasions when I said to myself, “haven’t I read this before?” However, Toobin repeated entire passages for reasons — obviously he didn’t repeat himself by mistake — and it’s a nit-pick when viewing the entirety of the work.

There are critics of Toobin who claim he is too partisan one way or another; too pro or con one justice or another. I know that the Volokh Conspiracy in particular has issues with his views. They are probably right, but I wasn’t expecting an erudite treatise on constitutional law; I was expecting a description of the Supreme Court, and that’s exactly what I got.

Religious institutions hold a particular niche in our society. After all, America was founded on religious freedom (and turkey dinners). We have to respect each other’s religious beliefs, and a religious institution — such as a school — has the right to follow its tenets even in the face of Constitutionally protected rights. The question I find myself asking is: how steep is that slope?

Sure, a private, religious school can only accept students of the same faith; that’s a given. What about if the students are doing things the religion reviles? Can a Lutheran private school expel two girls for being suspected lesbians?
http://www.latimes.com/news/la-me-school28-2009jan28,0,3503114.story?track=rss

The truth is, there are two different issues at play here. One is the private ownership of the institutions; since the State is not officially involved, there is no Constitutional protection. Now, there are all sorts of arguments that any school, private or otherwise, should constitute “State actors”, but the current legal climate is that private schools are not subject to the State Action Doctrine.
The other issue is that a religious institution must be allowed to practice and adhere to its faith. To paraphrase Bill Cosby, “I know religion! I practice religion!” Are there aspects of most religions that those not within the faith would take offense at? Yes; hell, I know people in my religion who have a hard time with some of it.

Normally I would view a case like the one linked to above as correct since the person has two outs: she can choose to use a different school and she can choose not to take part in the offending religious practices (again by leaving the school by choice). However, since this is a school situation, and the student is notfree to make the choices I just mentioned, this decision does not sit soundly with me — but what are the alternatives?

I just finished Judge Richard Posner’s …Not a Suicide Pact. It is an intriguing and thought-provoking read — however, I’m left with a particularly partisan taste in my mouth.
I quite enjoyed the background and realistic perspective Posner offers on national security and fighting terrorism. The distinctions he draws between past threats and the current threat of global, unconventional terrorism are valid… to a point.

J. Posner lays out his exceptionally valid argument for why police procedures do not adequately meet national security against terrorism; he makes intelligent (if not convincing) arguments for both why and how civil liberties must be weighed against national security measures in times of national emergencies. He pays lip service to civil libertarians but dismisses them, ultimately terming their views “excessive” and “irresponsible”, but that is to be expected; after all, he hardly expects to convince any libertarians with his arguments. The biggest warning flag was in the conclusion, a passage that was reminiscent of Justice Scalia’s dissent in Boumediene:

Though scattered by our invasion of Afghanistan and by our stepped-up efforts at counterterrorism, terrorist leaders may even now be regrouping, and preparing an attack that will produce destruction on a scale to dwarf 9/11.(p.148)

Compare that passage to Scalia’s:

I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today… It will almost certainly cause more Americans to be killed… The Nation will live to regret what the Court has done today.

Why, must they resort to base fear mongering? I thought that was the exclusive jurisdiction of the media.
I would still suggest this book — it is an interesting read and at least gives excellent jumping off points for thinking the issues through yourself.

UPDATE — 1/1/09 –
I realized late last night that I failed to make any mention of the actual point of the book.
J. Posner points out many times that his main thesis in the book is that many of the “curtailments” of civil liberties in times of national emergencies are, in fact, constitutional. To his credit, he stipulates that just being constitutional does not necessarily make something morally correct.

The constitutional issues he raises and attempts to put to rest waver right on the edge — dependent on how you view the constitution and the importance of the framers’ intent. I compared his views to Justice Scalia’s earlier; those similarities exist only so far as their agreement about the danger of terrorism. I’m sure Scalia would have choice words regarding Posner’s view that:

Language and drafters’ intent are not the only or even, in my judgment, the best guides to constitutional rule making; they are merely the most orthodox ones.

That being said, I feel that Posner’s view is a much more practical and realistic one than Scalia’s; I simply disagree with the extent of some of the conclusions in this book.