The news is filled with reports of citizen journalists being arrested or having their cell phones taken after recording police encounters. Now, the Department of Justice (DOJ) has weighed in and the message to law enforcement is clear: the First Amendment protects the right to record police performing their duties in public.
The DOJ intervened in the ACLU of Maryland Sharp v. Baltimore City Police Department case with an unprecedented legal statement, the federal government’s first statement on the high profile issue. The statement affirms what the ACLU has been saying for years -- that citizens have a Constitutional right to record police officers publicly performing their official duties.
As camera phones become the norm and we carry high quality photo and video technology in our pockets, citizen journalism is on the rise. In fact, there are now even apps for the sole purpose of recording the police. The New York Civil Liberties Union (NYCLU) developed an app for New York residents called the “Stop and Frisk App” and the ACLU of New Jersey also has one for New Jersey residents called “Police Tape”. This technology has made recording police -- and reporting police misconduct -- easier than ever and has been spurred by a number of high profile conflicts between the police and the public regarding recording police actions.
One such incident was what happened to Christopher Sharp. In this case, the ACLU of Maryland represents Sharp, an Owings Mills man who was improperly detained by police and whose personal videos, including many of his young son, were deleted after he filmed Baltimore City Police officers roughing up a female friend at the 2010 Preakness Stakes.
Other comparable incidents have occurred across the country and recent federal appellate rulings in Massachusetts and Illinois have upheld the right of citizens to record public police actions.
In Massachusetts, Glik v. Cunniffe was an ACLU case involving an attorney who was wrongly prosecuted for recording a police incident on his cell phone camera. In this case the First Circuit Court of Appeals ruled that Simon Glik had been "exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."
Similarly in Illinois, ACLU v. Alvarez was a lawsuit challenging a statute that severely restricts the right of citizens to record police performing public duties, making such conduct without the consent of the recorded officers a felony. The Seventh Circuit Court of Appeals overturned a lower court's dismissal of the case and noted that the Illinois statute "restricts far more speech than necessary to protect legitimate privacy interests," and likely violates the First Amendment.
Given the conflicts over recording that continue to arise despite the enormous attention this issue is receiving across the country, the ACLU of Maryland has contacted law enforcement officials throughout the state to urge them to review and modify their internal policies and training practices to protect the public’s First Amendment rights. The ACLU of Maryland hopes that this information gives law enforcement officials a unique opportunity to set a national example in protecting rights as well as public safety.
Also make sure you know your rights as a photographer!