By John M. Rogitz

Yesterday, FoxNews reported on two instances where Maryland state police used a two-party consent statute to suppress evidence of their thuggish behavior.  One took place at the Preakness Stakes when the police made a man turn off a camera as they forcefully subdued a woman.  The second incident resulted in criminal charges against a motorcyclist who posted a YouTube video of his traffic stop on a Maryland highway.

This is the same state and statute used by Acorn to sue Hannah Giles and James O’Keefe for their undercover reporting.  Strangely, the ACLU has only now come out against the abuse of two-party consent laws.  I bet Hannah and James wish the ACLU cared about all civil liberties and not just the selective, self-serving ones that further their liberal causes.  They definitely could have used the free legal defense work.

If you have not seen the video posted by the motorcyclist yet, you can watch it here.  The man, who was being stopped for traffic violations, had a gun drawn on him by a plain-clothes police officer even though the video clearly shows a squad car in the background.  Little did the off-duty officer know that the biker had a helmet-cam.

The Maryland motorcycle incident has memorialized yet another cop stepping over the line.  Why would the officer decide to pull his gun instead of his badge, especially with a uniformed officer already on the scene?  That seems more than a bit excessive for a traffic stop, even if the biker was driving very recklessly.

So, what exactly is a “two-party consent” statute?  Well, although they are referred to as “two-party” laws, that term actually refers to any law requiring the consent of every party to a conversation before it can be recorded.  That seems reasonable at first glance, but there are two problems with what Acorn and the Maryland police have been doing.

First, two-party consent laws are by far the minority viewpoint on recording conversations.  One-party consent is all that is required in most states.  That means that if you want to record your conversation, you can lawfully do so regardless of whether the other person knows what you’re doing.  Only a handful of states, including California, have passed these two-party laws.

Ironically enough, those two-party laws were designed to protect the Fourth Amendment rights of citizens and prevent abuses of police power.  They were never meant to be used as an evidence shield to protect police when exercising their authority in an unreasonable manner.  They were also never meant to shield publicly funded organizations from criminal prosecution for importing underage prostitutes.  Why can’t the ACLU get on board with both of those causes?

Second, every two-party consent law requires a “reasonable expectation of privacy” for the law to apply.  More often than not, that means the conversation must occur in a private place.  That is why Acorn’s suit against Giles and O’Keefe was just political grandstanding that had absolutely no merit.

Just like a crowded Acorn waiting room, there’s no reasonable expectation of privacy on a public road.  Moreover, Maryland police officers already routinely record their traffic stops.  I can’t wait to hear the private-place argument the Maryland DA will make against this biker without somehow admitting that the police already habitually violate the same law.

Here in California, you don’t even have to stop for the police unless they are complying with certain requirements that make it apparent they are official law enforcement personnel.  That plain-clothes officer in the video could have just as easily been a car-jacker, especially considering the high violent crime rates in Maryland.

Just like the Acorn suit, the charge filed against the motorcyclist based on the two-party statute completely lacks merit.  It seems that conservatives have finally found some common ground with the ACLU.  That would happen more often if the ACLU was not so transparently inconsistently and political.

COPYRIGHT 2010 JOHN M. ROGITZ