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Department of Justice Warns Police Against Violating Photographers' Rights

By David Walker


video frame grab ©ACLU
Christopher Sharp from a video in which he recounts how Baltimore police erased the contents of his cell phone after he recorded them making a forcible arrest.  

The Civil Rights Division of the US Department of Justice doesn't mince words in a May 14 letter to the Baltimore Police Department. Citizens have a constitutional right to record police carrying out their public duties, and it is illegal for police to seize and delete the recordings, the letter says. The DOJ goes on to give the BPD a blueprint for re-writing its policies regarding journalists or citizens recording police activities.

The letter, posted on the DOJ web site, could be a powerful tool for photographers (or citizens) who are harassed or arrested anywhere in the country for photographing police activities. It says exactly what National Press Photographers Associations, the ACLU, and others have long argued--one painstaking case at a time-- about citizens' right to record police activities.

"Private individuals have a First Amendment right to record police officers in the public discharge of their duties," the DOJ writes to the Baltimore police. The letter continues, "[O]fficers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process."

The letter re-iterated the arguments that the DOJ made to a federal court in Maryland earlier this year in a civil rights case involving the Baltimore Police Department. Christopher Sharp sued the BPD in 2011, alleging that police officers had seized, searched, and deleted the contents of his cell phone after he used it to record the officers arresting his friend. The incident took place at the 2010 Preakness Stakes horse race.

BPD said the claim was groundless and asked the court to throw it out. But the DOJ urged the court to rule that private citizens have a First Amendment right to record police carrying out their duties, as well as Fourth and Fourteenth amendment protections against unlawful search and seizure and deprivation of property without due process.

The court agreed, and has allowed the case to proceed. Among Sharp's allegations is that the BPD has a policy of advising its officers to to detain citizens who record police activities and to seize, search, and delete individuals’ recordings. He is seeking an injunction to force the BPD to change its policies.

In an effort to pre-empt that part of Sharp's claim, the BPD made public in February a general order titled "Video Recording of Police Activity" directing its police officers how to handle the recording of their activities. The order says citizens have the "absolute right to photograph and/or video record the enforcement actions of any Police Officer" as long as they don't "interfere."

The DOJ has reviewed that BPD order, and concluded that it doesn't adequately protect citizen's First, Fourth, and Fourteenth Amendment rights. In support of Sharp, the DOJ is now urging the court to order the BPD to amend the general order as part of the resolution of Sharp's lawsuit.

For instance, the DOJ says, the policy does not explicitly state that citizens have a First Amendment right to record police activity. "Given the numerous publicized reports over the past several years alleging that BPD officers violated individuals’ First Amendment rights, BPD should include a specific recitation of the First Amendment rights at issue," the DOJ says.

The letter goes on to provide what amounts to a prescription for a new policy that protects citizens rights. Among the recommendations:

  • BPD should 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.
  • [P]olicies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant.
  • 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.
  • Policies should prohibit officers from destroying recording devices or cameras and deleting recordings or photographs under any circumstances.
  • If a general order permits individuals to record the police unless their actions interfere with police activity, the order should define what it means for an individual to interfere with police activity and, when possible, provide specific examples.

(With regard to the issue of interference, The DOJ also notes, "an individual’s recording of police activity from a safe distance without any attendant action intended to obstruct the activity or threaten the safety of others does not amount to interference. Nor does an individual’s conduct amount to interference if he or she expresses criticism of the police or the police activity being observed.")

  • [The order] must set forth with specificity the narrow circumstances in which a recording individual’s interference with police activity could subject the individual to arrest.
  • [The order] should encourage officers to provide ways in which individuals can continue to exercise their First Amendment rights as officers perform their duties, rather than encourage officers to look for potential violations of the law in order to restrict the individual’s recording.
  • A supervisor’s presence at the scene should be required before an officer takes any significant action involving cameras or recording devices, including a warrantless search or seizure.
  • A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings...[and] [p]olicies should include language to ensure that consent is not coerced, implicitly or explicitly.

The case of Sharp v. Baltimore City Police Department is currently in the discovery phase. The next hearing in the case is scheduled for May 30.


 

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