DOJ Affirms Right to Record the Police

May 25, 2012

As a photography enthusiast,  I have been particularly interested lately in stories detailing law enforcement clashes with journalists and the general public who capture police activity with cameras, smart phones and other recording devices.  In a May 14 letter  to the Baltimore Police regarding the pending case Christopher Sharp v. Baltimore City Police Department (complaint available on WestlawNext at 2011 wl 3861239), the United States Department of Justice outlines ways in which the Baltimore Police fall short in protecting the First, Fourth and Fourteenth Amendment rights of those who record public police activity.

In Sharp, the Baltimore Police confiscated Mr. Sharp’s cell phone. Mr. Sharp recorded the police forcibly arresting his friend at the Preakness Stakes.  His phone was returned only after officers erased all recorded content, including home videos of his young son. According to the complaint, Baltimore Police have a history of wrongly invoking the Maryland Wiretap Act (Md. Code Ann., Cts. & Jud. Proc. § 10-401 et seq.) and other laws to prevent the public from recording their activities.

The DOJ letter suggests new guidelines that may serve as a model for police departments nationwide.  Most prominently, it states that department policies should affirm the First Amendment right to record police activity, clarify when an individual’s actions constitute interference or obstruction, and clearly describe when police can seize recordings and recording devices without a warrant.

To view the docket for the Sharp case, go to the Maryland Circuit Court Dockets on WestlawNext, and enter docket number 24-c-11-005636.  Select the “track” button to be updated with the latest filings.  For similar cases and court filings, choose the jurisdiction All State & Federal and run the following search on WestlawNext:

Police “law enforcement” photographer “first amendment” constitution

Select Cases or Trial Court Documents on the left side, then sort by date for the most recent documents.  For recent journal articles on the police and the public’s right to record, including discussions of eavesdropping and wiretapping laws in this context, select the Secondary Sources link.