The right to record in the wrong places

Documenting police arrests with smart phones increases — with consequences

By Chris Healy

At the 2010 Preakness Stakes horse race in Baltimore, a young woman in a yellow dress is held on the ground by uniformed Baltimore City police officers. She is bleeding profusely from her face. Several police officers push her into a prone position and place her arms behind her back. She is intoxicated, and apparently had gotten into an altercation with another man attending the race. Police intervened to break it up, but a large crowd is watching and some people are expressing alarm at what they believe to be an excessive use of force.

“Is that really fucking necessary?” a voice off camera asks a police officer.

The response: “Do me a favor and take a walk. Now. Do me a favor and turn that off. It’s illegal to videotape anybody’s voice or anything else. It’s against the law in the state of Maryland.”

The video ends abruptly.

A growing number of citizen activists, lawyers and journalists are questioning the constitutionality of laws and policies that prohibit people from recording the actions of police officers and public officials engaged in their public duties. Three high-profile cases involving this issue are pending before courts across the country.

The Preakness video was posted to YouTube by an individual believed to have been an off-duty Maryland State Trooper, according to attorney Deborah Jeon of the American Civil Liberties Union in Maryland. She says it depicts the same incident that her client Christopher Sharp recorded on his cell phone. The woman in the video was an acquaintance of Sharp’s, as was another man who is seen being arrested.

Sharp’s recording, however, no longer exists. Police officers seized the cell phone and deleted the videos, along with more than 20 others he had taken of his then-six-year-old son’s soccer and basketball games, according to a lawsuit Sharp filed against the Baltimore Police Department.

Sharp is well familiar with the Preakness Stakes, a major horse race that is part of the Triple Crown and is a notorious party event in Baltimore. He has attended the race many times, both as a spectator and as a former manager of the food and beverage service at the track. He knows that it can get rowdy, and that there is always a large police presence at the race. In 2010, he was a spectator.

When the police intervened in the altercation, Sharp started to record it. He knew his friend was intoxicated, and that she was not dealing with the police in the best way possible. Nonetheless, he thought the situation might be getting out of hand. Without interfering or otherwise getting involved, Sharp decided to record the arrest. Passersby asked if he’d gotten it. “Yeah I got it. I got it all,” he replied.

Sharp says several officers ordered him to turn over his phone, and several times he nervously but respectfully refused, believing that he was under no obligation to do so. He was not arrested, nor directly threatened with arrest, but Sharp maintains that he felt extremely intimidated. When an officer who identified himself as a sergeant told him they would need to take the phone and download the videos to a laptop “for evidence,” and then return the phone, Sharp complied. While he waited for his phone to be returned, Sharp says another officer told him “they’ll probably just erase it and give it back.”

Indeed, all the videos on his phone — those of the arrest, and the videos of his son — were deleted, and his phone was set to only be able to call 911.

“That was the last thing I was going to do at that point,” Sharp said.

The ongoing cases

Whether the First Amendment creates a right to take audio recordings of public officials, performing their public duties in public places, is a question front and center in three major pending cases. Two cases — ACLU of Illinois v. Alvarez and Illinois v. Allison — involve challenges to the state of Illinois’ eavesdropping law, one of the most limiting of recording in the country. The third, Sharp’s case, is a civil rights lawsuit asking for damages and policy changes at the Baltimore Police Department.

In all three cases, the extent to which the First Amendment creates a right to audio-record these public officials is a central question. And all three take place against the backdrop of Glik v. Cunniffe, a decision from August of last year in which the U.S. Court of Appeals in Boston (1st Cir.) recognized that the First Amendment protects the right to record.

In Glik, the court wrote that the First Amendment creates a broad prohibition on government attempting to restrict the “stock of public information.” This includes a right to gather information on how police officers perform their public duties by recording them, the court held.

Indeed, prominent in the court’s opinion was the recognition that the proliferation of recording equipment on portable devices like cell phones has changed the media landscape. “News stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper,” the court wrote.

Robert Corn-Revere, a partner at Davis Wright Tremaine in Washington, D.C. who has worked extensively on First Amendment and media law issues, agrees that changing technology could influence how a court views these issues. “[Eavesdropping laws] risk the possibility of making all citizens criminals.”

Jim Covington, Director of Legislative Affairs for the Illinois State Bar Association, believes that recording devices allow greater accuracy in settling disputes between police and citizens. “[Recordings provide] an instant replay of what really happened” in interactions with police, he said.

The three current cases share parallels with Glik. That case involved a young man who was walking on Boston Common when he saw police using excessive force in an arrest. He began to record the arrest on his phone. When confronted by the police and asked whether he was recording audio — which he was — Glik was arrested and charged with violating the Massachusetts wiretapping law. The charges were eventually dismissed as baseless because to violate the law, the recording had to have been made in secret, and all parties agreed that Glik recorded openly. Glik filed a civil rights lawsuit, and the First Circuit affirmed that his conduct was constitutionally protected.

Unlike Glik, Sharp was never arrested or charged with violating the Maryland wiretapping statute, and Jeon maintains that his actions were legal. But as in Glik, Sharp’s case is a civil rights lawsuit against the department. He is seeking clarity of the law through a declaratory judgment that his actions were protected.

The Illinois cases, by contrast, are direct constitutional challenges to that state’s eavesdropping law. The law makes it a crime to audio record any conversation without the consent of all parties recorded. There is no exception for recording police officers in public performing their public duties.

In fact, recording police officers is punished more severely than recording other parties. The statute makes it a class 1 felony to record a police officer, state’s attorney, or judge, while any other violation is a less serious class 4 felony.

Alvarez, which was argued before the U.S. Court of Appeals in Chicago (7th Cir.) in September, is a pre-enforcement challenge brought by the ACLU. That means that nobody in the case was actually arrested for violating the law. Rather, the ACLU alleges that they have chosen not to record certain public events out of fear that they would be arrested.

In Allison, by contrast, a man was arrested, and faces serious jail time.

Michael Allison is a hobbyist mechanic who had been cited under an Oblong, Ill., city ordinance for keeping an abandoned vehicle on his property. In the course of trying to sort out this citation, Allison allegedly violated the eavesdropping law by recording a police officer, the Oblong Chief of Police, the clerk of the court for Crawford County, two Oblong city attorneys, and Crawford County Judge Kimbara Harrell, according to a lower court opinion striking the law as unconstitutional.

Indeed, Allison had been told that no court reporter would be present to create a transcript at his citation hearing, and because of that had told the clerk of the court he would bring a recorder, according to William Sunderman, who represents Allison. Sunderman says that the judge asked Allison at the hearing whether he was recording. When Allison answered that he was, Judge Barney Harrell turned to a code book which was already open to the eavesdropping law, read it aloud, and had him arrested on the spot. He faces five felony counts.

In September, Judge David Frankland found the law unconstitutional. Because of that, the case has skipped the intermediate appellate court and is now before the state Supreme Court.

Justice weighs in

Christopher Sharp may have friends in high places. On Jan. 10, the Department of Justice filed a statement of interest in his case, arguing that Sharp was protected by the First and Fourth Amendments. The right to record police officers, the department said, is “consistent with our fundamental notions of liberty, promote[s] the accountability of our governmental officers, and instill[s] public confidence in the police officers who serve us daily.” The department declined to comment for this article.

For the United States to take such an unequivocally pro-speech position on this issue is unusual. Jeon said that Sharp’s case is the first time that Justice has taken an official stance on the right to record. She believes that the department has been watching this issue percolate in various courts across the country for some time, and chose to become involved in Sharp’s case partly because Sharp’s case has just begun, and the department could get involved early.

The department’s actions could have an impact on the Illinois cases. Sunderman called it the “cherry on top” of what he believes to be his strong legal position. “The Illinois Supreme Court could find the department’s position interesting and persuasive.”

And while such a clear statement of support for speech rights may be rare, it is welcome. “I have to applaud the government anytime it stands up for constitutional rights,” Corn-Revere said.

Jim Covington concurs. “You want to be proud of your government from time to time.”

Efforts at reform in the Illinois General Assembly

The battle in Illinois over the eavesdropping law has not been limited to the courts. Covington has worked extensively on getting the General Assembly to reform the law. He said that the cases pending in the Illinois courts have hastened the calls for reform. “But for the cases, the effort wouldn’t have the legs that it does,” he said.

House Bill 3944, whose chief sponsor is Rep. Elaine Nekritz, would create an exemption to the law allowing citizens to record police officers performing public duties in a public place. Notably, the bill would not apply to all public officials, but solely to police officers, she said.

Support for reform has come from at least one unexpected place. At a panel discussion on police recording at the Loyola University Chicago, which included Reporters Committee for Freedom of the Press Executive Director Lucy Dalglish, Chicago Police Superintendent Garry McCarthy expressed his belief that recordings protect both police and citizens. “I actually am a person who endorses video and audio recording,” McCarthy was reported saying by the Chicago Sun-Times. “There’s no arguments when you can look at a videotape and see what happened.”

On Feb. 8, the Civil Law Committee of the House of Representatives Judiciary I Committee approved H.B. 3944 by a 9-2 vote. The Reporters Committee submitted written testimony in support of the bill. The bill will now proceed to the full House of Representatives.

The principal objections to the bill raised during debate related to individuals interfering with police investigations, Nekritz said, though doing so would remain a crime.

Covington said that their efforts should not be viewed as anti-police, but anti-bad law. He says that the bill would cure a double standard in the law allowing police to record citizens, but not vice versa.

The damage has been done

With the support of the United States government in his lawsuit, Chris Sharp and his legal team are optimistic.

At a hearing on Feb. 13, a federal judge denied the Baltimore Police Department’s motion to dismiss. Jean said that the department conceded a the hearing that the First Amendment creates a right to record. The case will not move forward to discovery, she said.

But for Sharp, some of the worst damage cannot be easily rectified by winning the suit. Despite his best efforts, Sharp has been unable to recover the lost videos of his son. “My son is my life,” Sharp says, and the videos represented 18 months of memories that he cannot get back.

Less tangible, but no less permanent, is the damage done to Sharp’s perception of law enforcement. “I was reared to trust the police,” Sharp says. “They have a difficult job.” His faith may not have been shaken had his experience reflected “one or two bad seeds,” but the fact that all of the officers on the scene seemed to collaborate together has damaged — perhaps irreparably so — Sharp’s view of the police.