DOJ smacks Baltimore police over constitutionally protected right to record cops

Good news today as the Justice Department defended our constitutional rights by taking a firm stance on our First, Fourth and Fourteenth Amendment rights in regard to our right to record the police. The DOJ is not happy about the Baltimore Police Department’s recently issued seven page orders on citizens’ right to record officers, so the Department of Justice sent a letter that smacks BPD and warns the department to set up constitutionally adequate ‘record the police’ policies that do not violate our protected First, Fourth and Fourteenth Amendment rights.

In January, the DOJ’s Civil Rights Division weighed in for the first time on the right to record the cops by sending a letter that counseled a judge to side with the plaintiff, a Howard County man suing Baltimore police for ‘allegedly’ deleting videos from his cell phone after he recorded an officer arresting a woman at the 2010 Preakness. Chris Sharp, the plaintiff, maintains the police even told him, “That’s what you get for taping it.” In that statement, the Justice Department “urged the Court to find that private individuals have a First Amendment right to record police officers in the public discharge of their duties, and that officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process.” Then in May, a coalition of nine civil and digital rights groups, including the EFF and ACLU, sent a letter [PDF] to Attorney General Eric Holder, urging the Justice Department to protect and defend our constitutional right to record police.

So now Jonathan Smith, chief of the special litigation section of the Justice Department’s Civil Rights Division, filed an 11-page letter [PDF] defending citizens’ right to record the police. I encourage you to read the impressive DOJ letter as it will likely give you a warm fuzzy glow, at least temporarily, to see justice is not dead and our constitutional rights do still count.

Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.

Even though the ACLU said you have every right to photograph that cop, please do read the Justice Department’s letter [PDF]; it’s very important if you are a photographer, videographer, or even own a cell phone capable of taking pictures or recording videos. You never know what you might see one day; it is your constitutional right to break out that smartphone and record away.

Furthermore “bystanders have an absolute right to record police activity” unless it interferes with police activity, jeopardizes the safety of an officer, suspect or others in the vicinity, violates the law, or incites others to violate the law. Officers “may not prohibit a person’s ability to observe, photograph, and/or make a video recording of police activity that occurs ‘in the public domain’,” Smith advised, but the BPD policy needs to “clarify that the right to record public officials is not limited to streets and sidewalks – it includes areas where individuals have a legal right to be present, including an individual’s home or business, and common areas of public and private facilities and buildings.”

The Justice Department addressed the BPD’s weak policy about describing precisely what limited circumstances would allow the police to seize recordings and recording devices. “The warrantless seizure of material protected by the First Amendment ‘calls for a higher hurdle in the evaluation of reasonableness’ under the Fourth Amendment,” Smith wrote. The policy should not include language that violates the Fourth and Fourteenth Amendments, meaning the consent to search or seize must not explicitly or implicitly be coerced by implied threats. “Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”

Photojournalist Carlos Miller, who has been arrested three times for recording the police and is the same photographer who DHS monitored via Facebook before arresting him, pointed out this portion of the DOJ letter: “Police departments should not place a higher burden on individuals to exercise their right to record police activity than they place on members of the press.” And being the first to break the story, Miller really liked this:

This principal is particularly important in the current age where widespread access to recording devices and online media have provided private individuals with the capacity to gather and disseminate newsworthy information with an ease that rivals that of the traditional news media. See Glik, 655 F.3d at 84 (“[M]any of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.”).

Meanwhile Police One reported that the Seattle Police Department is objecting to DOJ proposed reforms, calling them “wildly unrealistic and expensive.” The Justice Department had threated to sue SPD after a civil rights investigation found the police in Seattle “regularly used illegal force, often for minor offenses.” The “DOJ report found that one out of every five times an officer used force, it was used unconstitutionally” and issued a “100-page settlement proposal.” For the last warm fuzzy today, “Last week, the DOJ sued tough-talking Sheriff Joe Arpaio in Maricopa County, Ariz., over allegations that his department racially profiled Latinos.”

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