Justice Dept. defends public’s constitutional ‘right to record’ cops

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.

Video above shows a New York City police officer attempting to prevent a New York Times photographer from capturing images during a public demonstration.