Government

DOJ Letter Affirms Recording On-Duty Police Is a ‘Form of Free Speech’

DOJ Issues a Letter of Guidance Encouraging the Baltimore City Police Department to Include More Details in Its General Order Protecting Citizens Rights to Record Police

The Department of Justice provided a letter of guidance for the specific information regarding the public's rights to film on-duty officers that should be included in policies. (Image: YouTube Screenshot)

With the Occupy Wall Street movement and cases of alleged police brutality, it has become a staple for protesters to whip out cameras or smartphones to record video of the police and their actions. In some cases, though, the authorities have been accused of seizing and deleting the video, which has raised questions about the public’s legal rights in filming officers on duty.

(Related: Cops arrest journalist at occupy Miami and allegedly delete his video…that he later recovers)

In one such case – Christopher Sharp v. Baltimore City Police Department, et. al. — the U.S. Department of Justice has issued a “letter of guidance” in which it defends the public’s right to record.

As some background, Sharp alleges officers of the Baltimore City Police Department took his cellphone and erased a video he filmed showing what he claims was forcible arrest of his friend in May 2010. Wired explains the BPD later issued a order to its officers, describing that the public had the right to film them while on duty. But according to the letter from Jonathan Smith, chief of the DOJ’s Special Litigation Section, this order “does not meet the requirements in some areas” to provide the officer with guidance for conduct that “accurately [reflects] the contours of individuals’ rights under the First, Fourth and Fourteenth Amendments.”

The 11-page letter includes areas the DOJ thinks BPD should include in its general order to ensure adequate protection of constitutional rights. Here are some of the key points made by Smith in the letter regarding rights of recording officers on duty:

  • Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.
  • 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.
  • Policies should prohibit officers from destroying recording devices or cameras and deleting recordings or photographs under any circumstances. In addition to violating the First Amendment, police officers violate the core requirements of the Fourteenth Amendment procedural due process clause when they irrevocably deprived individuals of their recordings without first providing notice and an opportunity to object.
  • BPD should instruct officers not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or other recording devices.
  • General Order J-16 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 settlement conference for the case is scheduled for May 30 with Judge Paul Grimm.

The Verge recalls a separate incident where an individual was arrested while filming another arrest by the BPD, shortly after the general order was issued. Mickey Osterreicher, General Counsel for the National Press Photographers Association, told the Verge he considers this evidence of how the department is not following its own policies:

“I found it very interesting when on that Saturday, the next day, there was another incident with police disrupting someone’s recording.”

[...]

“I was wondering whether they had actually spent that time training the officers on new ways to circumvent the public being allowed to record them.”

Here the video of the incident:

The Baltimore Sun reports the president of the city’s Fraternal Order Police chapter said, in reference to the above video specifically, that officers making an arrest don’t want spectators getting too close to them for their own safety and that of the person they’re arresting. He said that many cops “are afraid of doing anything to anyone if they’re holding a cellphone.“ He said officers are ”confused right now.”

Comments (31)

  • blackyb
    Posted on May 26, 2012 at 3:15pm

    This is free speech and should not be altered to suit the whims of those recording. That should be a serious offense if this is altered or made to favor one or the other who is being filmed. The film should remain on from start to finish and not cut, deleted or in any way altered. If altering is done, then the film or recording should not be used in any manner. It is not a propaganda tool we are striving for here, it is free speech. This could be useful in its’ entirety, not otherwise.

    Report Post » blackyb  
  • sacwoodpusher
    Posted on May 19, 2012 at 11:51am

    Until I saw this report, I was beginning to think Holder was actually Satan, himself!

    I whole heartedly support this position on cameras and cell phones. This will help us weed out the bad police, and there are a lot of them.

    Report Post »  
  • henrybowmanaz
    Posted on May 18, 2012 at 3:26pm

    “He said that many cops ‘are afraid of doing anything to anyone if they’re holding a cellphone.’“

    Good.

    “When the government fears the People, that is Liberty. When the People fear the Government, that is tyranny.”
    –Thomas Jefferson

    “What’s the matter, do you have something to hide?” God, it feels good to throw that old mantra back at them.

    Report Post » henrybowmanaz  
  • CulperGang
    Posted on May 18, 2012 at 9:42am

    Public servants spy on citizens (using their tax $$$$$$) without probable cause IS unconstituional,
    ALL public servants including judges need to be monitored for “Quality Assurance.” Next to politicians our judicial system is a sewer of lies and abuse by prosecutors and judges, THAT the average person cannot rectify because IT IS VERY EXPENSIVE. It is time to turn the tables USE OUR money to monitor public servant for “Job performance.”

    Report Post » CulperGang  
  • schlepnier
    Posted on May 18, 2012 at 7:51am

    The DOJ is a bit late to the party, by almost a year. US 1st circut already rules back in 2011 (glick VS commonwealth) that law enforcement officers can be audio and video recorded without permission as they are public officials exercising a public duty that is a matter of the public interest and protected under the 1st ammendmant clause of the free flow of information, the free press and the transperency of government.

    Report Post » schlepnier  
  • Sniper48
    Posted on May 18, 2012 at 3:00am

    This “directive” is pointless. Just like planted “evidence” and other routine police activities, seizure of any recording device and erasure of police activities will be the standard. The only thing that will work is to record police activities without them knowing that a recording is being made (if possible). It is difficult to assert your Constitutional rights while being beaten and slammed to the sidewalk while in handcuffs. The police know that they can continue to do this as long as the attackee is a white male because not even the media will care about it in that case.

    Report Post »  
  • The Third Archon
    Posted on May 17, 2012 at 7:13pm

    Yeah, GOD FORBID the police be captured on video violating the few procedural limitations they DO have in their pursuit of “law enforcement.” Then they might actually be CONVICTED of wrongdoing and, GASP, something might actually be DONE about it.

    Report Post » The Third Archon  
  • Marnin
    Posted on May 17, 2012 at 6:57pm

    I never thought I would agree with anything that Holder’s Department of Injustice did,but this is the right call here. I have always disagreed with police believe they shouldnt be alloweed to be filmed in the public doing their duty. They have to be accountable, that is part of why video cameras are installed in many cars. As Reagan said, “Trust, but verify”.

    Report Post »  
  • Trance
    Posted on May 17, 2012 at 6:19pm

    The police should also be charged with destroying evidence if they delete or destroy a person’s recording.

    Report Post » Trance  
    • Freedom Hound
      Posted on May 17, 2012 at 9:02pm

      Now what happens to all the people who were arrested in various locations video taping the police making arrests?

      Report Post » Freedom Hound  
  • synapse
    Posted on May 17, 2012 at 5:55pm

    Finally a ray of light beams out from the dark corridors of the DOJ.

    Report Post »  
    • Free2speakRN
      Posted on May 18, 2012 at 1:18am

      Don‘t forget Holder’s hope for Obama’s “Civilian Army”. I don’t like all this recording either. But Holder is thinking ahead, and also, Holder… is …‘Top Cop’.

      Report Post »  
    • Free2speakRN
      Posted on May 18, 2012 at 1:56am

      Synapse, and all, Let me retract my statement . I’m so tired phsically, I’m going to sleep. Mentally I’m more tired. These people, Holder in particular, I trust as far as I can throw him. Being so tired, it ain’t far, if at all. Obviously, to myself, I got the story crossed.

      But I do believe that for now, Holder is in favor of OWS getting dirt on the cops, demonize the cops, etc. This is what I meant about the recording of the cops. With the Tea Party, there is no need, as they don’t even need cops to keep them civil.

      If left in power, I believe Holder will reverse this proclamation to suit their Brown Shirt Civilian Army, etc.
      Somehow….in the future, it ain‘t gonna be good for the freedom we’ve enjoyed in the past. Whatever he is doing, I believe there is a lie in it.

      With that, sorry folks, and Good Night.

      Report Post »  
  • Ser Scot
    Posted on May 17, 2012 at 5:25pm

    Absolutely. Police are public officials operating and working for the general public. We should absolutely have a right to film them doing their work. I‘m shocked there are places that don’t allow us to film public officals working with the public.

    Report Post »  
    • SaintzOfAk
      Posted on May 17, 2012 at 5:57pm

      What baffles me more is the lack of Nuts men are carrying around these days. I ain‘t afraid of no damn cop arresting me if i’m within my rights. When the hell are men gonna stop carrying around purses and start sacrificing for the greater good?…..Sickening!

      Report Post » SaintzOfAk  
  • Individualism
    Posted on May 17, 2012 at 5:09pm

    heck yeah it is and i do it when ever i see one. if there good it will help them win and if there bad it will be their downfall.

    Report Post » Individualism  
  • holy ghostbuster
    Posted on May 17, 2012 at 5:08pm

    The police erasing the video is also destruction of evidence. What if a citizen is recording a police confrontation in which the officer is injured or killed? I’ll bet they take a different stance and give the citizen, recording the crime, a medal for obtaining evidence. It has to be a two way street.

    Report Post » holy ghostbuster  
  • ltbdb
    Posted on May 17, 2012 at 5:00pm

    I wonder if they bothered to tell the TSA in the airports or do you still leave your rights at the door when you enter an airport terminal?

    Report Post »  
  • FromSeaToSea
    Posted on May 17, 2012 at 4:47pm

    Excellant

    The video wil be used to stir up riots across America.

    So what?……….strap on a peecekeeper for Your safety.

    Report Post »  
    • frust@ted
      Posted on May 17, 2012 at 5:00pm

      Maybe it will be but that is not a reason to give up our rights or ability to protect ourselves.

      TSA tried to do something similar to people filming pat downs or confrontations they had during pat downs. The Govmy should fear us and our ability to film them and post it on the internet is one of the best ways to keep them in check.

      Report Post »  
  • Scrubmaster
    Posted on May 17, 2012 at 4:47pm

    Im shocked the DOJ finally did something right.

    Report Post »  
  • FromSeaToSea
    Posted on May 17, 2012 at 4:46pm

    Excellant.

    This is to create more material to stir up riots across America.

    Everyone needs to strap on a peecekeeper for their own safety.

    Report Post »  
  • Snowleopard {gallery of cat folks}
    Posted on May 17, 2012 at 4:44pm

    Note that the DOJ letter will only be for those who support the administration; a tea party or a christian or anyone who supports freedom and the Constitution will be an enemy of the state and hounded accordingly.

    Report Post » Snowleopard {gallery of cat folks}  
    • VanceUppercut
      Posted on May 17, 2012 at 10:17pm

      @Snowleopard {gallery of cat folks}

      Once again, someone using the freedom they claim not to have to infer that the Obama admin is a dictatorship.

      Report Post »  
  • Smokey_Bojangles
    Posted on May 17, 2012 at 4:43pm

    Police feel free to film you.Feel free to FILM THEM BACK!

    Report Post » Smokey_Bojangles  
  • frust@ted
    Posted on May 17, 2012 at 4:43pm

    We should absolutely be able to film police officers, govmt officials or anything that is being done in public.

    Report Post »  
  • SquidVetOhio
    Posted on May 17, 2012 at 4:39pm

    An arrest is a matter of public record so the police should not expect the privacy the arrested person does not enjoy.

    Report Post » SquidVetOhio  
  • Bruce P.
    Posted on May 17, 2012 at 4:39pm

    Finally, a common-sense, Constitution-based decision from the Obama DoJ.

    Report Post » Bruce P.  
  • MAULEMALL
    Posted on May 17, 2012 at 4:37pm

    Unless its a tea party rally..

    Report Post » MAULEMALL  

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