DOJ Says Citizens Have Right to Record Police

The U.S. Department of Justice is coming down hard on the Baltimore Police Department as it prepares to issue a settlement to a man whose footage they deleted after he recorded them making an arrest.

eric holder

Eric Holder

The settlement stems from a 2010 incident at the Preakness Stakes, which prompted the Department of Justice in January to send a statement of interest to the judge presiding over the resulting civil suit, advising him that such blatant action violates the Constitution and should not be tolerated.

That letter provoked the police department into issuing a 7-page General Order to its officers February stating that citizens have the “absolute right” to record cops in public as long as they did not “violate any section of any law, ordinance, code or criminal article.”

Baltimore cops simply expanded existing laws to allow them to continue cracking down on camera-wielding citizens, including threatening to arrest a man for loitering.

On Monday, the Department of Justice slapped the Baltimore Police Department with another letter, condemning it for writing such a vague general order and for allowing the harassment to continue.

It is a very impressive read. Eleven pages of case citations and Constitutional clarifications. One of the most solid efforts from the federal government in protecting the rights of citizens to record police.

The letter was issued less than 10 days after various journalism and civil rights organizations, including my favorite, the National Press Photographers Association, sent U.S. Attorney General Eric Holder a letter, insisting he take action in the War on Photography.

As far as I know, this is the first time the federal government has drafted guidelines to a local police department on this issue. The most extensive out of all the general orders I’ve read from police departments over the years.

And it will be the biggest challenge for whoever replaces Baltimore Police Commissioner Frederick H. Bealefeld III who abruptly resigned earlier this month, staying in the job only until August.

I would love to break the letter down for you, but I’m still digesting it and it’s late. Or early depending on how much sleep you’ve had.

So maybe you guys can help me out by copying and pasting the positives and negatives you find in the letter.

Here’s a portion I know you guys are going to love:

“Members of the press and members of the general public enjoy the same rights in any area accessible to the general public.” Id. at 4.

“No individual is required to display ‘press credentials’ in order to exercise his/her right to observe, photograph, or video record police activity taking place in an area accessible to, or within view of, the general public.” Id

Here’s another good one:

Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. 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. 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. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.”); Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 823 (5th Cir. 2007) (The notice defendant provided to the plaintiff “was insufficient to satisfy due process because [plaintiff] did not receive the notice until after his personal property was allegedly discarded . . . . [D]iscarding [plaintiff’s] personal property in this manner violated his procedural due process rights.”).

Here’s another one I enjoyed:

This principal is particularly important in the current age where widespread access to recording devices and online media have provided private individuals with the capacity to gather and disseminate newsworthy information with an ease that rivals that of the traditional news media. See Glik, 655 F.3d at 84 (“[M]any of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.”).

And that last sentence couldn’t ring truer this early morning as not a single news outlet has this story yet.

Click here to read the letter.



2 comments to DOJ Says Citizens Have Right to Record Police

  • Wishbone

    concidering that in resent years police in the US and UK have been acting more and more THUG like, tazering people for no good reason, beating people up, spraying teargas into peaceful protesters faces, and more resently stealing people cash, thet every citizen should have the RIGHT to photograph, film, record, document them when they are being thugs, after all WE DO PAY THEIR WAGES.! AND THEY DO WORK FOR US.!

  • Bartzbestbox

    I am wondering about the skin color of the person arrested and now settling with the Baltimore PD, given that the DOJ has intervened.    Just asking…………………………………………..

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