Judge  Emory A Pitt Jr., of the Maryland Circuit Court, has dismissed felony wiretapping charges against speeding motorcyclist Anthony Graber.  From the Baltimore Sun (as the decision has yet to find its way to the internet — Update, decision here courtesy of Mirriam Seddiq).

The judge ruled that Maryland’s wire tap law allows recording of both voice and sound in areas where privacy cannot be expected. He ruled that a police officer on a traffic stop has no expectation of privacy.

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” the judge wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”

Here that sound?  That’s the applause of the internet.  That’s the applause of the citizens of Maryland.  What it isn’t is the applause of Maryland police officers and state officials.  If it was, this situation would never have arisen to begin with.  No one forced Graber’s prosecution.  This was a deliberate decision. 

Judge Pitt’s decision, almost universally hailed, is but a lower court decision, applicable to but one defendant.  Whether it will be appealed has yet to be announced, but my expectation is that it won’t.  Why would Maryland officials want a higher court to affirm it, and thereby create precedent?  As much as this decision didn’t give cops what they want, at least it doesn’t bind them.

There could, of course, be announcement made by the various players in this melodrama, from Attorney General down to the Hartford County state’s attorney, conceding that it is perfectly lawful to record the public conduct of police officers in the State of Maryland.  The State Police could similarly stand next to the spokesman, and add their voice to the mix.  There are no announcements of any press conference to be held today.

That Anthony Graber committed no crime by videotaping the plain clothes police officer in an unmarked car, who stopped him and drew his weapon, and then announced his capacity, seems almost too obvious for words.  It’s been roundly excoriated here and elsewhere.  Video has fundamentally changed our relative understanding of how police deal with the public, no longer forcing us to rely on the claims of a “criminal” versus the police officer’s assurance of regularity.  We now know it happens, and happens with shocking regularity, because we see it happen.

The rational answer is that a police officer who doesn’t engage in impropriety has nothing to fear from being videotaped.  The heartfelt law enforcement concern is that minor, common mistakes, in the heat of the moment, are misapprehended by people who don’t, and can’t, appreciate what cops have to go through in enforcing the law while protecting their lives and the lives of others.  Videotape is a simple answer that fails to recognize the pressures of a difficult job. 

The cop sensibility isn’t entirely wrong.  It’s far easier to play Monday morning quarterback than to make perfect snap judgments in dynamic and unknown situations.  Of course, the same could be said for defendants, whose snap judgments are occasionally known to be wrong, but who are convicted on them nonetheless.  Still, it’s always easier to know the best course of action when you already know the outcome.

None of the police concerns, however, have any bearing on the claim that videotaping a police officer in the performance of his duty constitutes a crime.  These are arguments to be made in the interpretation of what’s seen on tape, but not the act of taping.  As much as the public has been indoctrinated to support the tough on crime at any cost view, there has been no support for the prosecution of Graber.  No matter how much fear they try to instill, this case has presented a clear line.

The question raised is whether this will be the death of this insanity, the effort to conceal the public performance of police from view, or just a bump in the road which the police and politicians in Maryland will try to circumvent.  Judge Pitt clearly made the right call on every level, and yet the pronouncement of death may be premature.  This is just one trial level judge’s decision.  It’s not precedent.

Somebody videotape a cop in Maryland today and see what happens.