Citizens Have Right to Record Police in Public, Justice Department Says


ANNAPOLIS—The Justice Department has written two letters to the U.S District Court in Maryland supporting the Constitutional rights of citizens arrested for filming police officers on duty.

"The United States urges the Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street," one letter read.

The letters stem from two recent Maryland examples of something that is happening all over the country. Police in a number of states have arrested people even though several courts have said citizens have a right to record police activity in public.

The American Civil Liberties Union says the Justice Department letters could help stop the arrests.

"The letters are very helpful, and not just in the individual cases," said Deborah Jeon, legal director of the American Civil Liberties Union of Maryland. She said the letters help outline policy changes that police departments should make.

Last month, the Department of Justice sent a letter to the U.S. District Court in Maryland in the case of Garcia v. Montgomery County supporting the rights of a photojournalist who was arrested for taking pictures of on-duty police officers, and is now suing.

The other letter was issued in 2012 to the same court in the case of Sharp v. Baltimore City Police Department urging the court to rule in favor of Sharp, the plaintiff. The Justice Department later sent the police department a letter criticizing its policy on recording police officers and outlining changes the department should make.

In the more recent case, Mannie Garcia, a freelance photographer, was arrested in June 2011 in Wheaton by Montgomery County Police officers for disorderly conduct after he photographed officers arresting two men and using what Garcia said in court documents to be "excessive force."

According to the lawsuit Garcia filed claiming false arrest, malicious prosecution and battery, he identified himself as press to the police, and complied with their request to move back from the scene. Despite doing so he was arrested, thrown to the ground and dragged across the street, the complaint said.

The officers then took Garcia's camera and camera card from him.

Garcia's attorney, Robert Corn-Revere, said his client has a "constitutional right to take pictures of officers" performing their public duties, and the officers "violated his constitutional right and common law rights."

Montgomery County has filed a motion to dismiss the Garcia lawsuit, but a spokeswoman would not discuss it.

"It is the policy of the county not to comment on cases in litigation," said Lucille Baur, spokeswoman for County Executive Ike Leggett.

The county's motion to dismiss states that the allegations in Garcia's complaint "are limited to Plaintiff's opinions and conclusions." The county says Garcia's case is based on speculation and he doesn't provide factual evidence that the county, or the officers, were at fault.

The earlier letter stemmed from the 2010 Preakness, when Christopher Sharp was detained by Baltimore City Police for videotaping the police using force to detain another person. Sharp handed his phone over to police who said it was evidence, and all of the videos and pictures were erased from his phone.

The letter clearly states that citizens have a First Amendment right to record officers in public, and that officers violate Fourth and 14th amendment rights when they seize recordings without granting citizens due process.

"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."

Jeon said the ACLU took the initiative to send the letter from the Sharp case to every large police department in the state, and so far the police departments have been receptive and open to policy changes. But Jeon said that may not be enough.

"Just changing the policy might not be enough. There needs to be some training for the police officers to implement those policy changes," she said.

The Montgomery County Police Department has always operated under the policy that citizens are allowed to record police officers if the "subject who is videotaping or audio recording officers fulfilling their official police duties is doing so in a public place, not jeopardizing anyone's safety, including the person recording, and is not affecting how evidence is collected," said Capt. Paul Starks.

Starks said the county has not altered its policy and said the department makes sure its officers know the policy, but has not instituted any training courses on how to deal with citizens recording them.

Deputy Sheriff Candidate Michael Athey, who is in the Montgomery County Sheriff's Office training academy, says his department also has no training courses for how to handle citizens recording police officers.

"There is no training course, we're just instructed by the Assistant State's Attorney (how to handle it)," Athey said. Athey said there are no regulations on people recording and he is taught the only way he can make someone stop is if that person is interfering with the investigation, or jeopardizing someone's safety.

A Department of Justice spokeswoman would not comment on the letters sent to Maryland courts, referring instead to the letters themselves.

The letter from the Garcia lawsuit says that since officers in these cases often charge citizens with crimes like disorderly conduct, the court should be skeptical of those accusations, and the sole basis of the charges cannot be that the citizen was videotaping or photographing officers.

The same letter also states that these rights extend not just to members of the media, but to all citizens, and that the "derogation of these rights erodes public confidence in our police departments."

Maryland may be the only state to have a case where someone received a letter from the Department of Justice, but that doesn't mean these arrests aren't happening elsewhere.

"These arrests are happening all across the country," Jeon said. "I think Maryland has maybe just been a little more activist about it."

Massachusetts and Illinois are two states that had laws that made it illegal to videotape police officers on duty. They required both parties to give consent, even in public places, in order to record.

However, in 2012 the 7th U.S. Circuit Court of Appeals ruled in Alvarez v. ACLU to block enforcement of that law in Illinois because it was unconstitutional. Before the case, it was a Class-One felony to record a police officer, and if the person was convicted they faced 12 years in prison.

The Supreme Court denied taking the appeal in that case, sending a message that it agreed with the ruling by the 7th Circuit. Despite the ruling, a citizen was arrested in January in Naperville, Ill., for recording police officers installing smart meters on another citizen's property.

In addition, the 1st U.S. Circuit Court of Appeals ruled in 2011 that it is not illegal for citizens to film police officers on official duty.

Some police departments have told officers that citizens have a right to record police. In Maryland, the Chevy Chase Village Police Department, in Montgomery County, issued a memo to its officers telling them citizens have a right to record them on duty.

The memo went into effect in June 2012, a year after Garcia was arrested in that same county.

However, despite lawsuits, memos and law changes, officers still continue to arrest citizens.

In January, the ACLU filed a lawsuit against the Philadelphia Police Department for arresting citizens for recording police officers, despite the fact that Police Commissioner Charles Ramsey had issued a letter saying that citizens have a right to record, photograph or videotape officers in public spaces.

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