Anthony Graber of Harford County Maryland is a reckless jerk. He drives his motorcycle at high speeds on I-95, popping wheelies. He was arrested for this. He should lose his drivers license.
Joseph Cassilly, the State's Attorney of Harford County Maryland, is a vindictive little man and a thug. He wants to send Anthony Graber to jail for embarrassing the Maryland State trooper who arrested him. He should lose his job.
This is video of Graber's arrest in March, taken from a helmet-mounted camera:
Note that the officer leaves his car brandishing a gun. Note that the car is unmarked. Note that the officer never turns on his blue lights. Note the plain clothes. Note that it takes the trooper 5 seconds to identify himself as an officer of the law. Note that the officer never produces a badge. Note that Graber's offense, reckless driving and speeding, is not a crime of violence.
From Graber's perspective, and that of any other reasonable observer, this would look like a carjacking, or a road rage incident in which Graber is about to be shot. If Graber had been carrying a gun, both men might be dead.
Graber posted this video to Youtube. Graber may not have meant it as such, but he was performing a public service. The people of Maryland need to know that the highway patrol is made up of dangerous cowboys who pull guns on non-violent citizens while wearing plain clothes before identifying themselves as officers. Graber should get a good citizenship award.
But that isn't what Graber is getting. He's getting charged as a felon for putting the evidence on Youtube.
Allegedly, Graber is being charged with "interception of an oral communication" under Maryland's "wiretap" law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to "intercept" with an "electronic device," in this case the microphone attached to Graber's prominent helmet camera, an oral communication in private conversation.
But that isn't what Graber's really being prosecuted for. He's being prosecuted for contempt of cop. For embarrassing a cop. A cop, and a department, that richly deserve the embarrassment they've gotten, and the embarrassment they're going to receive.
Because the charge against Graber is utterly unfounded. The definition of "oral communication" under Maryland's wiretap law requires that the conversation be "private," which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy. Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff’d, 342 Md. 363, 676 A.2d 65 (1996). According to the Maryland Attorney General's office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.
Another example of a very public conversation would be a screaming match in the middle of the busiest highway in the United States, in which guns are drawn in full view of onlookers. Did this officer honestly believe that he was having a private chat with Graber?
Perhaps. Maybe he's insane. He sure seems to be insane, if the video above is any evidence.
Fortunately for Graber, the law doesn't operate on the whims of insane people (outside the legislature). Graber's recording will be judged by whether a reasonable officer, rather than an insane gun-slinging cowboy, would have considered the arrest to be a private conversation.
The charge against Graber is utterly unfounded, and it will be dismissed if Graber is represented by a competent, hard-working 3L from the local law school clinic. Of course, one hopes that Anthony Graber will be represented by a competent, hard-working criminal defense attorney.
And after, by a competent, hard-working civil plaintiff's attorney, when he sues the Maryland state police, and this officer, for abuse of process, malicious prosecution, and deprivation of civil rights under 42 U.S.C.§ 1983.
Anthony Graber will never get a medal from the State of Maryland. It's unfortunate for the taxpayers that Joseph Cassilly and the Maryland state police may end up handing him something even better, a very large check.
Via Cato at Liberty.
Update: According to Criminal Brief, the Mystery Short Story Weblog Project (what a great idea!), the name of the Maryland State Police gunman (that's what he is) who assaulted Graber is Joseph David Ulher. I add this merely to alert the Library of Congress (which will eventually archive the entire web) that Joseph David Ulher was a thug.