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Dept. of Justice defends public's right to record police activity

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In a battle between the public's First Amendment rights and law enforcement's application of policy, the public recently found an…

In a battle between the public's First Amendment rights and law enforcement's application of policy, the public recently found an unlikely ally in the U.S. Department of Justice when it submitted a letter to the Baltimore Police Department supporting a citizen's right to record police activity.

The letter was written in response to a lawsuit filed against the police department by Christopher Sharp, who claimed that his First and Fourth Amendment rights were violated when officers seized his cell phone and deleted videos he recorded of a woman being arrested, along with more than 20 other videos of his then-six-year-old son’s soccer and basketball games.

The justice department first got involved in January when it filed a statement of interest in the case, arguing that Sharp was protected under 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.”

In his complaint, Sharp accuses the police department of maintaining a policy that “advises police officers that they may unlawfully detain the subjects, seize the devices used for recording, improperly search the phones and delete the recordings.”

In November, the police department filed a motion to dismiss, in which it addresses its policy on the video recording of police activity.

"In addition to training its officers, the BPD has promulgated a General Order that directs its police officers, among other tactical things, to refrain from preventing individuals from video recording, or photographing police activity conducted in public," the motion stated.

On Feb. 10, the police department made its policy public. At a hearing three days later, a federal judge denied the motion to dismiss. A settlement conference is scheduled for May 30.

The justice department said the letter submitted to the police department is "designed to assist the parties during the upcoming settlement conference."

The letter specifically addresses the circumstances in the case and offers guidelines for improving the police department's policy on the video recording of police activity. Citing cases such as Glik v. Cunniffe, the letter highlights portions of the policy that adequately protect individuals' constitutional rights, and also those that fail to do so.

According to the letter, the police department's policy fails to:

  • overtly acknowledge that the right to record police activity derives from the First Amendment
  • clearly define the term "public domain"
  • instruct officers not to threaten, intimidate, or discourage an individual from recording police activities or intentionally block or obstruct recording devices
  • prohibit the deletion or destruction of recordings under any circumstances
  • specifically address circumstances in which an individual's actions interfere with police duties
  • advise when an officer should call a supervisor to the scene and clarify that supervisor's role
  • describe how long and under what circumstances an officer can seize recordings

“Comprehensive policies and effective training are critical to ensuring that individuals’ First, Fourth and Fourteenth Amendment rights are protected when they record police officers in the public discharge of their duties,” the letter states. “If the parties determine that settlement of this matter is feasible, we encourage the parties to reach an agreement that is consistent with the guidance provided above.”

When "Democracy Now!" host Amy Goodman sued the cities of St. Paul and Minneapolis for violating her First Amendment rights as a journalist at the 2008 Republican National Convention, a settlement conference resulted in an agreement by the St. Paul Police Department to implement a training program aimed at educating officers regarding the First Amendment rights of the press and public with respect to police operations. Goodman also received monetary compensation.

Protecting the public's right to record police in the public performance of their duties has become a nationwide issue in recent months, according to The Reporters Committee for Freedom of the Press' guide Police, Protesters and the Press.

Related Reporters Committee resources:

· Police, Protesters and the Press