As police departments around the country are increasingly
caught up in tussles with members of the public who record their activities,
the U.S. Justice Department has come out with a strong statement supporting the
First Amendment right of individuals to record police officers in the public
discharge of their duties.
In a surprising
letter (.pdf) sent on Monday to attorneys for the Baltimore Police
Department, the Justice Department also strongly asserted that officers who
seize and destroy such recordings without a warrant or without due process are
in strict violation of the individual’s Fourth and Fourteenth Amendment rights.
The letter was sent to the police department as it prepares
for meetings to discuss a settlement over a civil lawsuit brought by a citizen
who sued the department after his camera was seized by police.
In the lawsuit, Christopher Sharp alleged that in May 2010,
Baltimore City police officers seized, searched and deleted the contents of his
mobile phone after he used it to record them as they were arresting a friend of
his.
Last year, the Baltimore Police Department published a
General Order to officers explaining that members of the public have a right to
record their activity in public, but the Justice Department said in its 11-page
letter this week that the order didn’t go far enough, and pointed out several
areas where it should clarify and assert more strongly the rights that
individuals possess.
The right to record police officers in the public discharge
of their duties was essential to help “engender public confidence in our police
departments, promote public access to information necessary to hold our
governmental officers accountable, and ensure public and officer safety,” wrote
Jonathan Smith, head of the Justice Department’s Special Litigation Section.
Smith cited the 1991 videotaped assault of Rodney King while
he was being beaten by law enforcement officers as an incident that
“exemplifies this principle” of public oversight.
“A private individual awakened by sirens recorded police
officers assaulting King from the balcony of his apartment,” Smith wrote. “This
videotape provided key evidence of officer misconduct and led to widespread
reform.”
He noted that the issue was particularly important in
Baltimore, “given the numerous publicized reports over the past several years
alleging that BPD officers violated individuals’ First Amendment rights.”
The Justice Department’s interference in the local civil
case was surprising yet significant in that it put not only Baltimore but also
every other city police department around the country on notice that
interference in such recordings was unconstitutional. It was sent to Baltimore
days after several media and civil rights organizations sent U.S. Attorney
General Eric Holder a letter insisting that the Justice Department take action
against agencies that arrest people who record officers.
“Since the Occupy Wall Street movement began, police have
arrested dozens of journalists and activists simply for attempting to document
political protests in public spaces,” the letter to Holder stated. “A new type
of activism is taking hold around the world and here in the U.S.: People with
smartphones, cameras and Internet connections have been empowered with the
means to report on public events.”
While individual cases didn’t necessarily fall under the
Justice Department’s jurisdiction, the letter acknowledged, the suppression of
speech was a national problem that had to be addressed at the federal level.
“Freedom of speech, freedom of assembly and freedom of
access to information are vital whether you’re a credentialed journalist, a
protester or just a bystander with a camera,” the organizations asserted.
In the document he sent to Baltimore, Smith said that,
except under limited circumstances where a person recording police activity
engaged in actions that violated the law, jeopardized the safety of a police
officer, a suspect, or others, or incited others to violate the law, police
officers should not interfere with a recording and should never seize recording
devices without a warrant. They should also 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, Smith wrote.