Friday, August 13th, 2010

Forceful Conduct: The Anthony Graber Case

...Earlier this year, a man named Anthony Graber was breaking the law on his sport bike (allegedly, etc.) along a stretch of Interstate 95 in Maryland, helmet cam rolling. Graber later posted the resulting video to YouTube, so anybody who wants to can watch him weave in and out of traffic, steer one-handed, and supposedly pop a wheelie.

About three minutes into the video, Graber turns his head and the camera catches a gray sedan about fifty yards behind him.

A few seconds later, Graber slows to a stop in a traffic line on an exit ramp. There, at about minute 3:10, the gray sedan noses into and blocks his lane.

The sedan's door flies open and a man with a distinct resemblance to Pee Wee Herman, but wearing jeans and a fleece pullover, jumps out and rushes toward Graver.

The man is holding a gun and yelling "get off the motorcycle."

The man with the gun yells "get off the motorcycle" a total of three times before he adds "state police."

Graber departed that encounter with nothing more than a speeding citation; his real trouble started when he published the video. A county prosecutor decided to charge him with violating the Maryland Wiretap Act, for which he could be sentenced to as many as sixteen years in prison.


He probably won't be. In July, the Maryland Office of the Attorney General called bullshit, sharing its opinion that, essentially, what's good for the goose is good for the gander: under Maryland law, private citizens have just as much right to record traffic stops as police do (PDF). But the AG's opinion is advisory and non-binding; it's still up to the Harford County prosecutor whether the case will proceed to trial, and people have been convicted on similar charges in other states.

Graber's experience has excited a lot of interest nationwide. A man named Carlos Miller, who runs the blog Photography is Not a Crime, has been following Graber's case closely, and Time just joined the party with an August 4th article by one Adam Cohen that ran under the headline "Should Videotaping the Police Really Be a Crime?"

Perhaps not surprisingly, Cohen concludes that, no, it shouldn't: "If the police are doing their jobs properly, they should have nothing to worry about."

I see the logic behind what he's saying. And I don't disagree with the idea that members of a free society should damn well be able to videotape the people they commission to enforce laws behind badges and guns. And yes, we must therefore resist what seems to be a rising tide of police resistance to being videotaped.

But we might as well try to understand why police don't like to be videotaped, and it's not necessarily because they fear losing the impunity to misbehave, which is what I take Cohen to be implying.

It could also be because, even when "police are doing their jobs properly," it often doesn't look like they are. Not to the untrained observer, anyway.

* * *

Back in my use-of-force class at the U.S. Coast Guard's Maritime Law Enforcement school, the instructor-who, judging by the number of pushups he made us do, was not at all tolerant of the possibility that we might do our jobs the slightest bit improperly-was firmly of the opinion that videotaping might give us something to worry about.

He unequivocally told us never to bring a camera along on a boarding.

The Coast Guard doesn't have anything like dashboard cams yet, and we should count ourselves lucky, he told us.

Law enforcement just doesn't look right to civilians, even if you are doing everything exactly the way the way you have been trained to do it.

In the ensuing years, I've had countless opportunities to reflect on just how right he was.

You have only to glance, for example, at the photograph that Gizmodo chose to illustrate its own recent post on the increasing use of cameras "to depict police abuse," including in the Graber case.

In the photo, not one but two police officers have their knees on someone's back, pressing him face-first into the concrete as they cuff him. And how is that fair?

Clearly, this is a prima facie example of "police abuse."

Except no, it's not.

Without knowing more about the events that led up to the scene in that photo, all we can say is that it shows two police officers trying to handcuff someone who doesn't want to be handcuffed. Handcuffs are tiny-pretty much exactly wrist-sized, for obvious reasons-so if the person you are trying to cuff is moving his wrists around even a little, you aren't going to prevail without either a very uneven struggle (at least two against one, preferably three) or, if you are alone, without inflicting enough pain to get your "subject" to see things your way.

Combine that with 1. the way even the most mild-mannered people can react to the feel of actual cold steel locking closed on their wrists and 2. the fact that the moment of cuffing is one of the most dangerous for police, because they have to get inside arm's reach of someone who is probably not very thrilled with them-and you may start to understand why police can assume such a dominant posture when it comes time to put on the bracelets.


And while many police may be trained-as I was-to handle "passive" and "active" resistance differently, the bar for "active" is low: simply trying to tug your arm away from a cop who has grabbed it can be an express ticket straight past "commands and consequences" to some decidedly less pleasant locations on the "use of force continuum."

Which gets back to what my instructor was saying. The cops in that photo may be doing exactly what they've been trained to do, maximizing their own safety and minimizing the chances of the arrestee getting a broken wrist. (Without more context, we can't eliminate the possibility that they might coincidentally also be assholes, of course. Some cops are. So are some bus drivers and senators.)

To the casual observer, though, it looks like this: an arrestee who wasn't "struggling" and didn't even throw a punch is suddenly in the middle of a three-cop pile-on, and it just doesn't look right.

* * *

Then again, sometimes videos do capture cops doing their jobs improperly, which seems to be the case in the Graber video.

Aside from the question of pulling a gun on a speeder-we were trained that, if you think you need your gun out, you need your gun out-it certainly seems like a problem that this cop both has his gun out and says three complete sentences to Graber before identifying himself as a police officer.

It also seems like a big problem that he never shows a badge at all.

Look at the expression on the cop's face as he puts his gun away, seemingly upon noticing the arrival of the marked cruiser that becomes visible later when Graber dismounts. Who can say what he's thinking, but if I had to make a wager, it wouldn't be that he is confident that he is entirely in the right.

For that matter, it is interesting to consider the fact that, while the existence of Graber's camera is still a secret at this point, the cop knows he is downrange of the one on the uniform's dashboard. Is he already thinking about videos and whether or not he is ready for his closeup?

Anyway, I failed my first use-of-force practical exam for pretty much the exact same mistake this trooper made-not explaining quickly and clearly who the hell he is and why anyone should do anything other than run away from or preemptively open fire on the road rager with the gun. I think Graber's video could have a second, more fruitful life as an illustration to academy cadets of what not to do in similar situations.

Of course, the video is already out; whatever damage it can do has been done. The target of the Graber prosecution isn't Graber-it's all of the people who might think of making their own video later. It's hard to avoid concluding that the authorities want to inspire the following thought before anyone else decides to hit the red button: "Yes, the charges may eventually be dropped, but is it really worth the hassle?"

You really have to like the taste of your master's boot leather for the answer to that question to be anything but "yes," but then that's easy to say from the safety of my laptop. Here's hoping that at least some of us continue to find the courage of our convictions when it actually matters. Just because some cops have some relatively good reasons for preferring not to be videotaped doesn't mean the rest of us have to care.

Sutton Stokes will certainly record any encounters he has with the West Virginia State Police.

27 Comments / Post A Comment

NinetyNine (#98)

Some of this logic applies, but the outstanding fact is that police officers almost never identify themselves prior to a threatening act. Having been arrested, having friends who have been arrested, and having witnessed easily 20 arrests (for drugs and what could loosely be termed 'East Village crimes' — squat evictions, protests, etc.), every time there is injury or an accusation of misuse of force it is an undercover cop who does fails to identify himself.

I would hazard this stems from the expectation of respect for the uniform that is always well in evidence when wearing it goes quickly away when you are not, but the psychology of expecting a similar response doesn't. Because if a guy in a hoodie starts running after you at 3AM, you run. Or if someone grabs you from behind without warning or verbal notice, you throw an elbow and try to break their grip.

NinetyNine (#98)

Also, the other issue is the pervasive growth of using non-uniformed officers for non-serious crimes, which fails just about every logic test. I understand an undercover cruiser for traffic patrols, but why isn't this guy wearing a uniform? Why are 'quality of life' crimes being pursued by the Street Crimes unit (who were responsible for the Diallo shooting). If uniformed officers patrolling on foot are a deterrent to low level street crime, why just not have more uniformed officers on foot in high crime areas an reserve non-uniformed cops of serious investigations? I think the non-uniformed situation exacerbates the worst tendencies of testosterone-hyped cops who are looking for a chance for a fight. After all, the ideal scenario is a cop never has to interact with civilians at all.

Mister_Neutron (#5,921)

This video is really disturbing. I mean, if I'm the biker, and suddenly this guy in a gray sweatshirt jumps out of a car holding a handgun and shouting at me — *probably* I freeze like he did, but if I'm thinking fast enough, I ram this crazy psycho with my bike and get the fuck out of there. And now when they catch up with me, instead of having saved my own life, suddenly I've assaulted an officer, fled the scene of a crime, etc. — my life as I knew it is OVER, all for making the wrong split-second survival decision.

Whereas, if he's simply wearing a uniform, I instantly understand the real situation.

Sutton (#1,490)

I think you're right. Personally, I suspect that letting cops out of uniform too quickly (as opposed to making them really earn it, with detective exams, etc.), sort of puts them in a position of getting to have all the "fun" without the responsibility and/or public oversight. In the Graber video, I actually assumed that the trooper was in his personal car and was out of uniform because he wasn't working, but decided to step in. Although maybe that's contradicted by the fast arrival of the uniformed officer? Not sure, and you can't tell what's a police car and what isn't anymore. But I agree: plain wrapper patrol for speeders does NOT need to be out of uniform, or should at least have one of those hot badge necklace things on.

This is an interesting perspective on all this … very informative.

But I don't buy you central premise (as I understand it): that information should be banned because the audience is too dumb or ignorant to interpret it properly.

Couldn't you make the same argument about all information that legally must be in the public domain? What if governments bypassed the public-meetings laws because citizens are likely to misinterpret what they see happening in those meetings?

Or what if the CIA never declassified any documents on the grounds that the public is too ignorant to appreciate how proper their conduct was in gathering that info?

etc. etc. I dunno. These probably aren't very good examples but … you get my point.

I agree that people probably often misinterpret justifiable police conduct as "abuse" — I've seen it myself, when many commenters get outraged over blog posts of certain vidoso where I think what the cop is doing looked justifiable — especially when it comes to an arrestee that is resisting being subdued or cuffed. (And I've seen other many other cases where it's pretty damn obvious that the cops behavior is not justified — usually, gathering around and just pounding the the crap out of a guy after chasing and catching him.)

So, if it's true that people often misinterpret what they see cops doing (and I suspect you're right about that), the solution probably involves some kind of coordinated communication/education effort — trying to better inform the public about these issues. But any attempt to hide what the cops are doing — or worse, to make it illegal to show what they are doing — is clearly not the answer.

Bettytron (#575)

I am pretty sure the conclusion of this article is the same as yours, even though most of the piece does seem counter to your argument.

Tulletilsynet (#333)

Betty: Yes. (Sutton's last two graphs are worth not skipping!)

Sutton (#1,490)

I think we actually agree! I definitely think citizens have the right to record what police are doing, except MAYBE if there is a legitimate argument that it would endanger the cop (such as an undercover situation). But I just think both sides are better served by trying to understand why cops might legitimately feel pretty reluctant to be recorded, even if they are not doing anything wrong. Which this cop still may have been doing, so I'm definitely not trying to let him off the hook (but nor can I really say for sure one way or the other). But yes: "the solution probably involves some kind of coordinated communication/education effort." We agree!

deepomega (#1,720)

There's an additional wrinkle here – cops never ever admit when a use of force is NOT appropriate. Ever. This makes explanations of how a particular situation merited it ring a little hollow – because you know that if there was absolutely no reason to use force, you'd hear the exact. same. thing.

(As a liberaltarian [which is to say a bleeding heart liberal who also does not trust the government to not fuck things up] this issue is very near and dear to my heart, so kudos for the discussion and explanation.)

cherrispryte (#444)

Liberaltarian? I love that.

DoctorDisaster (#1,970)

Excellent point. Psychologically, it makes perfect sense that a police force closes ranks around a member accused of misconduct by the public. But as a matter of public safety and protection of freedom, it's a real problem. I think citizen recordings, as pointed out in the article, are a damn good way to establish facts rather that perspectives.

The author is right that something that looks bad may not necessarily be bad, but having that determined by a judge or jury with access to recordings is a lot better than having it determined by who is allowed to record whom.

Great article, great discussion.

He's drawn his gun because the guy's a threat while in control of the motorcycle. He holsters it once he's safely to the side.

boyofdestiny (#1,243)

Drawing his gun isn't necessarily the problem. Drawing his gun and failing to immediately identify himself as law enforcement is.

Mister_Neutron (#5,921)

Agreed. And if he's in a uniform, the identification is clear as soon as he's halfway out of the vehicle.

@boyofdestiny: Yeah, that's definitely a problem. And there are issues around the life of the cop (who's assumed a risk by taking the job) and everyone else in the range of his weapon. The author did seem unclear on why it was drawn in the first place and then holstered when it was, though.

Sutton (#1,490)

Good point, I hadn't thought of that.

@Bus Driver Stu Benedict This is especially true in the states that now allow the carrying of concealed personal fire arms. I know some trigger happy people with their foid card that would NOT hesitate to pull THEIR gun if they see a plain clothed officer get out of a car, brandish a gun and not identify themselves.

Also, let's not forget the number of times that dash-mounted cams in police cruisers have 'mysteriously' been broken during a controversial stop. Or when police surveillance has been "out of order" but the official line is contradicted by numerous eyewitnesses and their video.

Radley Balko has been covering this is great, great detail. See this post for detailed stats on the "inexplicable malfunctions":

HiredGoons (#603)

People, I just want to say, you know, can't we all just get along?

Rodger Psczny (#3,912)

Pilot program of shoulder-cams for police ended very quickly locally. Because the cam footage contradicted what the police wrote in their reports.

Funny that.

Rodger Psczny (#3,912)

I should add this was in a DUI stop context. Where police write up the results of field sobriety tests in a cursory and conclusionary way.

lexalexander (#2,960)

[[Law enforcement just doesn't look right to civilians, even if you are doing everything exactly the way the way you have been trained to do it.]]

Even if this is true, it doesn't address the question of whether the training appropriately balances officer safety with the rights of subjects and witnesses.

There are plenty of cops using Tasers as they were trained to do. There are also plenty of people dead because they got Tased, in some cases for failing to follow an officer's orders with what the officer considered sufficient alacrity, in some cases because they were deaf or had a fractured spine.

Just sayin'.

Pak-Kei Mak (#6,908)

Yeah, I don't see how law enforcement "just doesn't look right". On one hand, we already have long-running shows like "Cops". On the other hand, more of these citizen videos will help us citizens understand how cops do their jobs, thus things will begin to look right.

It's all about communication, and the lack of communication between police and citizens is causing a very bad rift between the two these days.

gullible (#6,904)

Cops are much more likely to be assholes then your average citizen. Maybe not Bus Drivers and Senators.

voltafil (#6,910)

you don't have an expectation of privacy when you're making an arrest in public, or when you're doing anything else in public. the wiretapping laws address ppl who are recording private telephone conversations. if only one party knows that the call is not private, then recording it violates their privacy. in contrast, if you are in the street, you are well aware that lots of people may be observing your actions. so yeah, no expectation of privacy at a roadside arrest.

Clip Arthur (#2,024)

"Just because some cops have some relatively good reasons for preferring not to be videotaped doesn't mean the rest of us have to care."

Exactly. Also, cops have this little thing called the "blue wall of silence" which none of us civilians can ever get around. Videotape and cameras solve that. And can anyone really recall of an incident where civilian "misinterpretation" of a videotape, film or picture resulted in a cop losing a job or destroying their career? I can't.

Bergman Oswell (#7,665)

You also have to consider that often times, while police doing things properly looks wrong to civilians, the reverse is also true. A civilian often does things that are perfectly innocent, but look guilty to a police officer.

If looking bad on camera is evidence of wrongdoing when recorded by a police camera, why shouldn't it be for a civilian's camera?

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