I've previously argued in court briefs, on this blog, and in the press that citizens have a qualified right under the First Amendment to take and share video of police officers acting in the course of their duties in public spaces. If we didn't have that right, then people like the videographer who filmed the Rodney King beating could be jailed for obstructing justice or sued for invading privacy, rather than being lauded as an American hero.
Yet, in lawsuits and criminal prosecutions all around the country, some police officers have been trying to accomplish exactly that result. The vast majority of courts to rule on the subject have ruled in favor of the citizen-videographers, noting that such monitoring can be an essential tool for keeping public servants accountable. But in many courts, this remains an open legal question.
On January 10, 2012, however, the U.S. Justice Department took a big step toward resolving the issue. In a case pending in the U.S. District Court for the District of Maryland, the DOJ filed a brief explicitly supporting a citizen's right to film police in public.
The Background of the Case
These "facts" are taken from the complaint filed by the plaintiff, Christopher Sharp, as described by the DOJ's brief. They haven't been ruled on by a court yet, so we don't know that they're entirely accurate. But for purposes of the motions currently pending in the case, the court must assume that the allegations are true.
On May 15, 2010, while in the Clubhouse at the Pimlico Race Course, Sharp observed Baltimore City Police Department (“BPD”) officers forcibly arresting his friend. Mr. Sharp used his cell phone camera to video and audio record the officers’ conduct. Several officers approached Mr. Sharp and ordered him to surrender his camera phone. After twice refusing to comply with officers’ demands, Mr. Sharp surrendered his phone to an officer who said he needed to review and possibly copy Mr. Sharp’s recording as evidence.
When the officer returned with Mr. Sharp’s cell phone, he ordered Mr. Sharp to leaves. As Mr. Sharp left the Clubhouse, he discovered that officers had deleted all of the recordings on his cell phone, including the two recordings of his friend’s arrest and at least twenty personal videos of great sentimental value. The phone had also been reset so that it only permitted emergency calls. On August 31, 2011, Mr. Sharp filed a Complaint alleging violations of state law and rights protected by the First, Fourth, and Fourteenth Amendments to the U.S. Constitution.
The DOJ's Position
The DOJ is not a party in the case, but it intervened for the purposes of expressing its view of the law. In a filing called a "Statement of Interest," the DOJ made it absolutely clear that the First Amendment protects what Sharp did:
"This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily."
Of course, the DOJ does not have the final say in interpreting the Constitution. That's what the federal courts--and ultimately, the Supreme Court--is for. But the DOJ is the federal government's top law enforcement agency. So for it to take a firm position on this issue speaks volumes about how the law is likely to be interpreted and applied.
