Recording Police in Maryland: All-Party Consent and the Private-Conversation Limit

Maryland is one of a small group of states that requires the consent of every participant before a conversation may be recorded. Courts and Judicial Proceedings section 10-402(a)(1) makes it unlawful to "willfully intercept, endeavor to intercept, or procure any other person to intercept" any wire, oral, or electronic communication, and section 10-402(b) grades that offense as a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000, or both. Subsections (a)(2) and (a)(3) reach the separate acts of disclosing or using the contents of an unlawfully intercepted communication. The consent exception is section 10-402(c)(3), which is lawful only "where the person is a party to the communication and where all of the parties to the communication have given prior consent," and even then not where the recording is made to commit a criminal or tortious act.

The reason that felony does not swallow bystander video of a police encounter is the definition, not an exception. Section 10-401(13)(i) says "oral communication" means "any conversation or words spoken to or by any person in private conversation," and section 10-401(13)(ii) removes electronic communications from the term. Words an officer speaks to a driver on a public highway, to a person being handcuffed on a public sidewalk, or to a crowd at a scene are not spoken in private conversation, so acquiring them is not an interception and section 10-402 is never engaged. Two practical consequences follow. Silent video is outside the Act entirely, because the Act only reaches the acquisition of communications. And the closer the recording comes to a genuinely private exchange, such as audio captured from inside a home, from a squad car with the doors closed, or in a hospital room, the more likely it is that the words were spoken in private conversation and the analysis changes.

The asymmetry in the statute is worth understanding, because it is the clearest evidence that the General Assembly legislated about police recording without granting the public a right. Section 10-402(c)(4) lets an officer intercept an oral communication if five conditions are met: the officer initially lawfully detained a vehicle during a criminal investigation or for a traffic violation, the officer is a party to the communication, the officer was identified as a law enforcement officer to the other parties before any interception, the officer informs all other parties of the interception at the beginning of the communication, and the interception is made as part of a video tape recording. Section 10-402(c)(11) adds a parallel exemption for a "body-worn digital recording device" and for an electronic control device that records video and audio, conditioned on the officer being in uniform or prominently displaying a badge, making reasonable efforts to conform to the standards under Public Safety section 3-511, being a party to the communication, notifying the individual as soon as is practicable unless it is unsafe, impractical, or impossible, and recording video alongside the audio. Section 10-402(c)(11)(iii) forgives a missed notification when someone joins a discussion already underway for which notice was properly given. No matching subsection exists for a member of the public.

Body cameras are now the norm across Maryland, which changes what a resident can later ask for. Public Safety section 3-511(b) required the Maryland Police Training and Standards Commission to develop and publish online a model policy by January 1, 2016 addressing seventeen listed subjects, among them when recording is mandatory, when it is prohibited, providing notice of recording, access to and confidentiality of recordings, retention, dissemination and release, and specific protections where there is an expectation of privacy. Section 3-511(c)(1) required body cameras by July 1, 2023 at the Department of State Police, the Anne Arundel County Police Department, the Howard County Police Department, and the Harford County Sheriff's Office, and section 3-511(c)(2) extended the requirement to every other county law enforcement agency by July 1, 2025, for officers who regularly interact with members of the public as part of their official duties.

Where a recording still goes wrong in Maryland is usually not the Wiretap Act. Criminal Law section 10-201(c)(1) makes it an offense to willfully and without lawful purpose obstruct or hinder the free passage of another in a public place, and section 10-201(c)(3) makes it an offense to willfully fail to obey a reasonable and lawful order that a law enforcement officer makes to prevent a disturbance to the public peace. Section 10-201(a)(3) defines "public place" broadly enough to include a public street, sidewalk, right-of-way, public parking lot, and the common areas of a building containing four or more separate dwelling units, so the offense follows a person filming almost anywhere. If the recording is done from a vehicle, Transportation section 21-103(a)(1) separately forbids willfully disobeying any lawful order or direction of a police officer. Maryland has enacted no minimum standoff distance for recording an officer: nothing in the Annotated Code fixes a buffer in feet, and a full-text search of the Code returns no provision addressing a person who records a law enforcement officer at all.

An unlawful interception is a felony under Courts and Judicial Proceedings section 10-402(b), punishable by imprisonment for not more than 5 years or a fine of not more than $10,000, or both, and disclosure or use of the contents is a separate violation of section 10-402(a)(2) and (a)(3). Section 10-405(a) bars the contents and any evidence derived from them from being received in evidence in any trial, hearing, or other proceeding before any Maryland court, grand jury, department, officer, agency, regulatory body, or legislative committee where disclosure would violate the subtitle.

Section 10-410(a) gives the person recorded a civil action for actual damages but not less than liquidated damages computed at $100 a day for each day of violation or $1,000, whichever is higher, plus punitive damages and a reasonable attorney's fee and other litigation costs reasonably incurred; section 10-410(b) makes good faith reliance on a court order or legislative authorization a complete defense. Arrests arising from a filmed encounter are more often charged under Criminal Law section 10-201, a misdemeanor carrying imprisonment not exceeding 60 days or a fine not exceeding $500 or both under section 10-201(d), or under Transportation section 21-103, which carries the general Maryland Vehicle Law misdemeanor penalty of a fine not exceeding $500 under Transportation section 27-101(b).