It looks like several states, at least, have found an answer to the problem of police misconduct being recorded and made public. The solution is simple: make it illegal to record a police officer. There’s a good (if at least slightly biased) article on this, outlining the legal state of public recording of officers over several states. Often the illegality is claimed under an extension of state wiretapping laws, which is not only a stretch, but also ironic in that in the past few years the government has more or less seen fit to ignore those laws in the recording of citizens’ private dealings. We can record you in your private conduct, but you can’t record us in our public conduct. Heinlein’s “public servant equals public master” rule at work.

The no-recording laws are disturbing also because they appear to be directly targeted at hiding police misconduct. It may still be legal to record in public, and you won’t be taken to task for recording police where nothing embarrassing is happening. But if the police do something out of line and they find out you’re recording it, then the line is crossed. Which, obviously, is the exact opposite of how it should be. Yes, not all of an incident may be caught on tape, and yes, the video might not allow citizen viewers to take in the whole picture and understand the nature of the job. But the answers to those issues are education and judgment made by informed persons; making recording a police officer a crime punishable with a prison sentence borders on Orwellian.

Take the video recorded by Anthony Gruber, detailed in this Baltimore Sun article. He had a helmet-mounted camera while driving a motorcycle, and was recording while driving down what appears to be a highway. Public location, not illegal to record there. The recording certainly makes it look like he was speeding, though. After he takes an exit, an unmarked car follows him, and when he comes to a stop behind traffic, the car pulls over and a guy in plain clothes jumps out and pulls a gun, shouting “get off the motorcycle!” three times and putting his hand on the motorcycle dashboard before identifying himself as state police. He does not begin by identifying himself as a police officer, does not immediately show his badge, does not simply keep his hand on his gun in case the motorcyclist goes for a weapon or does something else threatening. No, without any indication that he’s an officer, he just jumps out of the car and pulls his gun out. I don’t know about you, but that would scare the crap outta me. Maybe I just don’t know police procedure, but that seems pretty improper.

Here’s the thing, though. They guy did not start recording because he saw a police officer, he was just recording his driving. And as soon as he discovered the identity of the officer, he immediately complied with the order to stop his bike, and then took off his gloves and stopped the recording. In essence, he did not try to record the officer and stopped as soon as he found out. He was given a ticket on the scene and was let go, and almost certainly would not have been punished further by the police. But after he posted the video on YouTube, the police came and arrested him, confiscating his computer and other equipment. The police claim that the subsequent arrest is not retribution for embarrassing the cop, but few people are buying that. Those familiar with Maryland law say that the use of this statute–making an audio recording of someone without their consent–in a case such as this is unprecedented. The fact that the recording was accidental and was stopped as soon as the person was capable makes the arrest on these charges even more transparent.

What’s scary about this is that the tendency to make the recording of police illegal is not in the interest of public safety–the opposite is true, in my opinion–but to essentially protect the police in cases where they act improperly. It resembles the practice in many states of destroying all evidence in a capital case after the person has been executed, thus making it virtually impossible to prove that the person executed was innocent.

And we know that sometimes this kind of record is needed. Take the arrest of Harvard professor Henry Louis Gates Jr., where it was pretty firmly established that the arresting officer filed an incorrect police report, misstating facts and exaggerating. Such police reports carry significant weight in court cases, but there is little doubt that these reports are, when there is improper police behavior, at the very least biased and very much subject to question. A video recording is powerful evidence for an arrest subject’s case in such situations. To remove these is to promote abuse.

Whatever the issues with recording police, banning recordings of public activity and arresting those who do so is not the answer. It smacks of a perpetual cover-up, and makes the public even more suspicious of police activity, not less.