Who Watches the Watchers?

In our free societies, we must always ask ourselves: “Who watches the watchers?”

Of course we need governments and authorities. We need police, investigators, and courts. In some cases, we need wiretaps and video cameras. When used properly, all of these things increase the security and stability of our society—reducing crime and enforcing laws. Unfortunately, however, these things are powerful weapons in the hands of the unscrupulous. That’s why we need some mechanism of ‘watching the watchers’ and being sure that the authorities are not abusing their powers.

When it comes our law enforcement officials, I have the utmost of respect for them and their work. However, there are a certain percentage of police officers who chose their profession merely to lord power over the rest of us . . . folks like Ofc. Graham Buck, Det. Mike Baylor (who was not fired for waving his gun around during a snowball fight), or the officers who arrested a man for trespassing on his own property, or the officers who invaded a mayor’s home and shot his dogs.

And folks like Maryland State Trooper Joseph D. Uhler who, after pulling Anthony Graber over for speeding on a motorcycle, waved his gun around like a madman. And folks like the members of Uhler’s department who then had Graber arrested and charged with wiretapping violations for posting a video of the encounter on YouTube. Adam Cohen, writing for Time, asks the obvious question: Should Videotaping the Police Really Be a Crime?

The answer, of course, is a resounding ‘no.’ Police record almost every official encounter they have with citizens for their own protection and, if the police are honest, law-abiding officials they should have no problem with citizens doing the same. Graber, who had been videotaping his ride on the motorcycle well before he was pulled over, had every right to film in public (where people have no reasonable expectation of privacy) and he then had a First Amendment right to post that video online. His right to film in a public place did not stop when Trooper Uhler pulled him over. The event was still happening in a public place, so Maryland’s [misguided] law against recording private conversations without consent of all participants simply does not apply.

If the encounter had happened in private conversation in a home, where Uhler might have had a reasonable expectation of privacy, then perhaps the case would have some merit . . . but, even in this case, state law should provide for an exception. Citizens should always have the right to record the official activities of public officials in the line of their duty. We, after all, are the officials’ employers and have a right to observe what they are doing. We have a fundamental right as citizens to ‘watch the watchers.’

What happened to Graber is inexcusable. Obviously, he was speeding and deserved to be pulled over and charged with a traffic offense . . . but there was no apparent justification for Uhler to approach him with weapon drawn and, as such, Uhler deserved the embarrassment of his appearance on YouTube. Now Graber, a Staff Sergeant in the Maryland Air National Guard, risks up to 16 years in prison and potential discharge from the military for no worse crime than for ‘watching the watchers’ and filming an encounter with the police sworn to protect him.

He is unlikely to be convicted; previous case-law clearly establishes that traffic stops occur in public and, thus, are open to recording. Maryland’s own attorney general’s office has ruled as much. Even if you were to put these facts aside, it is very unlikely that twelve jurors would unanimously side with prosecutors making such a hilariously specious argument anyway. How could Uhler, in this age of cell-phone cameras, assume that waving a gun around on a public highway wouldn’t attract some attention?

I suspect the trooper is just embarrassed because the camera was right in front of him, in plain sight, the entire time and he didn’t think to ask if it was turned on (another argument in Graber’s favor). It is a true shame, however, that Graber has to pay for Uhler’s embarrassment with the threat of imprisonment and all the associated legal fees.

So who watches the watchers? If the Maryland State Troopers and many other police agencies have their way, nobody . . . and that should scare us.

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.