The Department of Justice (DOJ) Civil Rights Division has affirmed the First, Fourth, and Fourteenth Amendment rights of citizens to record police officers in the public discharge of their duties. In an opinion letter issued on May 14, 2012 in regard to the ongoing litigation in Sharp v. Baltimore City Police Department, the DOJ stated that the individual right to record officers who are publicly executing their duties is a First Amendment right. Relying on Glik v. Cunniffe, the DOJ letter states “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.” (DOJ letter, page 2.)
Also in this letter, the DOJ and set forth recommendations for police policies to give law enforcement officers clear guidelines to allow them to perform their duties without violating this right. According to the DOJ opinion letter, with regard to the recordings of private citizens, police policies should:
- Affirmatively state that individuals have a First Amendment right to record police officers;
- Include examples of the places where individuals can lawfully record police activity, for example individuals not only have the right to record in public parks and public spaces (like sidewalks, streets and locations of public protests,) but also the right to record on private property where an individual has a right to be present (including, but not limited to his or her home);
- Include examples of the type of police activity that may be recorded;
- Advise officers that they "may not threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activity or intentionally block or obstruct cameras or recording devices" (DOJ letter, page 5);
- Instruct officers that they must not search and seize a camera or recording device without a warrant, except in limited circumstances (DOJ letter, page 5);
- Instruct officers that even if a warrantless seizure of a camera or recording device is permitted (because there is probable cause to believe that the device holds a contraband or evidence of a crime, there is a exigency or exception to the warrant requirement, and seizure is for a limited time period), there can be no search of the recording device without a warrant (DOJ letter, page 9).
- Prohibit officers from "destroying recording devices or cameras and deleting recordings or photographs under any circumstances"(DOJ letter, page 5);
- Define and provide examples for the narrow limitations of the First Amendment right to record: "A person may record public police activity unless the person engaged in actions that jeopardize the safety of the officer, the suspect, of others in the vicinity, violate the law, or incite others to violate the law" (DOJ letter, page 6).
- Include other provisions to clarify the role of the officer's supervisor, the guidelines for consent to searches, seizures under exigent circumstances, among other things.
Read the rest of the May 14, 2012 DOJ opinion letter from Sharp v. Baltimore City Police Department for more information. This is an area of law that will continue to develop.
In addition, here is some background information on the litigation Sharp v. Baltimore City Police Department. On May 15, 2010, Christopher Sharp recorded his friends' violent police encounter at the Preakness with his cellphone, and the Baltimore police seized and searched the phone. Christopher Sharp filed against a complaint the Baltimore Police Department, and this litigation is ongoing.
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