Radley Balko interviewed Joseph Cassilly, Harford County, Maryland state’s attorney, for his article at Reason about the handful of states that contend that it’s a crime to record police in the performance of their duty. Cassilly, notorious for his felony prosecution of Anthony Graber who recorded the plain-clothes, gun-wielding officer who took him down on a Maryland highway, explained his seemingly irresponsible position.
“The officer having his gun drawn or being on a public roadway has nothing to do with it,” Cassilly says. “Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.”
Cassily further explained:
“I don’t have any hard and fast rule I can give you,” Cassilly says. “It depends on the circumstances, and if the officer in those circumstances had good reason to think he wouldn’t be recorded. Should a domestic violence victim have a camera shoved in her face and have her privacy violated because someone is following a police officer around with a camera? What if he’s collecting information from witnesses at a crime scene? I’m saying that not everything a police officer does on the job should be for public consumption.”
That Cassilly makes no sense comes as no surprise; He’s in an untenable position and is just trying his hardest to make sure the words flowing from his mouth don’t concede as much. Making no sense is one of the best ways to accomplish that. But what’s most interesting about the explanation is that Cassilly speaks of the police officers’ “rights”.
Indeed, the title of Radley’s article, “Police Officers Don’t Check Their Civil Rights at the Station House Door,” a quote from Jim Pasco, Executive Director of the Fraternal Order of Police, is a riff off of the Supreme Court’s opinion in Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), a decision about the rights of students. It sounded great in Tinker, not to mention its progeny that recite it while explaining why students really have no rights, so why not cops?
Cops are people, right? I see you shaking your head. Yes, they are people. People have rights. But when they strap on their weapon and wear a shield, they don’t do so as citizens or human beings, fathers or mothers. They do so as officials of a governmental entity, duly authorized by that government to perform a function. That’s why the rest of us aren’t issued badges and taught how to taser people who annoy us. We’re people. We’re not cops.
It’s not difficult to distinguish between the rights we possess as human beings and the authority possessed by those who serve as functionaries of the government. They don’t lose their personal rights, but they don’t get to enjoy them contemporaneously with the performance of their duty.
What is difficult, however, is to distinguish our love of rights and freedoms when they are well-grounded from when they are based only the rhetoric of rights. Cassilly’s “argument” exploits the rhetoric of rights when human beings clothe themselves in governmental authority. In essence, they do indeed leave their rights at the station house door. When the go out into the world as police officers, they are not “people” but cops. Just as they enjoy the authority of the government, they are constrained to forego the rights they would otherwise enjoy as people.
The same rhetoric of right, however, cuts against the grain in other ways as well. I’ve often argued against the popular “victim’s rights” legislation and agenda, which seeks to make crime victims a third player in the criminal justice system. Its advocates, such as Paul Cassell of Volokh Conspiracy, argue that they are entitled to a vote, particularly about disposition, sentencing and restitution, that trumps the prosecution. This flies in the face of the concept of criminal law, which seeks to vindicate societal rather than personal interests, but that doesn’t prevent the assertion of the victims’ “right” to be a participant.
From whence does this “right” derive? It can’t be found in the Constitution or the common law. Rather, it’s statutory, meaning that legislation manufactured the right of victim to have a say out of thin air. It’s a popular notion, despite the problems it creates in the scheme of criminal law because we all feel badly for victims of crime and nobody wants to say that they deserve no rights. That sounds awful. It feels as if victims should be able to get their pound of flesh out of a defendant because it’s so difficult and complicated to fight the rhetoric of rights.
Ironically, the rhetoric of rights for victims is a one way street. At Norm Pattis posted, when representing a victim who doesn’t want a prosecution to proceed, and doesn’t want to be party to it, the rhetoric of rights shifts against the victim. He argued:
Among other things, we argued that the right to be treated with decency and respect was a constitutional right much like the federal right to due process: it needed to be given flesh and blood in the hurly burly of actual litigation. How is this young woman treated with respect and dignity when she has no say in whether this prosecution goes forward?
Of course, there is no right to decency and respect, as such. Heck, there isn’t even a viable definition, no less way to determine whether decency and respect are violated. But it’s a good argument, inasmuch as nobody wants to be on the side of arguing that people do not have a right to decency and respect. The ultimate point, that the victim’s desire to have the prosecution cease is ignored. So victims have a right to demand that prosecutions proceed. Victims do not have a right to demand that prosecutions cease. There appears to be a gap in the logic here, no?
The problem stems from a basic inequity in the rhetoric of rights, the manufacture of non-existent rights is only viable when its consistent with popular notions. We like law and order, so cops have rights. We like victims, so victims have rights. When victims want to exercise those rights to cease being victims, we no longer like them to so they have no rights.
Rights aren’t a product of rhetoric, but a product of the Constitution. Victims have no rights, but for the legislators’ creation to appease popular views. That’s why they only flow one way. Cops, as government functionaries, have no rights as such, but plenty of authority. Beware the rhetoric of rights that creates the appearance of rights where none exists.
There are plenty of rights involved in the recording of police officers in the performance of their duties, but they all belong to the people doing the recording, not the cops. There are plenty of rights in the courtroom, but they all belong to the defendant, not the victim. No amount of rhetoric changes those rights or who possesses them, although the use of the rhetoric of rights serves to significantly muddle our understanding of rights and, by giving rights where none exists, diminishes the rights of the rest of us.
For every “right” claimed that doesn’t exist, the rights of someone else will be proportionately diminished. Don’t let that happen, no matter how appealing you find the rhetoric.