ACLU to Police: Seize DOJ Guidance to Make Maryland a National Model for Protecting Citizens’ Rights to Record Official Actions

Affiliate: ACLU of Maryland
July 23, 2012 10:50 am

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ACLU of Maryland
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BALTIMORE – Highlighting recent court rulings and an unprecedented legal statement on citizens’ rights to record police actions issued by the U.S. Department of Justice (DOJ), the American Civil Liberties Union (ACLU) of Maryland is contacting local law enforcement agencies throughout Maryland, urging them to establish clear policies and training to ensure that officers conform to the Constitution they are sworn to protect. The DOJ’s first official statements on the high profile issue — affirming that citizens have a constitutional right to record police officers publicly performing their official duties and offering guidance for policy development – came in the ACLU’s Sharp v. Baltimore City Police Department case. The ACLU hopes that by sharing information with Maryland law enforcement officials about best practices the organization can assist police in heading off problems and protecting the rights of citizens as well as public safety..

Given the conflicts over recording that continue to arise despite the enormous attention this issue is receiving across the country, ACLU urges that now is the time for Maryland police departments to review and modify their internal policies and training programs to ensure protection of the rights of citizen journalists..

“The federal government’s selection of Maryland as the place to speak out in support of the First Amendment right to record police actions in public gives our law enforcement officials a unique opportunity to set a national example,” said Deborah Jeon, Legal Director for the ACLU of Maryland. “DOJ has created a roadmap for law enforcement to follow to ensure protection of the rights of citizens to hold police officers accountable to the public they serve. We urge Maryland officials to join with the DOJ in taking a strong stand for the Constitution.”

Recent federal appellate rulings in Massachusetts and Illinois have upheld the right of citizens to record public police actions. In Glik v. Cunniffe, an ACLU case involving an attorney who was wrongly prosecuted for recording a police incident on his cell phone camera, the First Circuit Court of Appeals last summer 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.” Then, in ACLU v. Alvarez, a lawsuit challenging an Illinois 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. The appeals court noted that the Illinois statute “restricts far more speech than necessary to protect legitimate privacy interests,” and likely violates the First Amendment.

Here in Maryland, the Department of Justice intervened in the Sharp v. BPD case, in which the ACLU represents Christopher 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 BPD officers roughing up a female friend of his in the Clubhouse at the 2010 Preakness Stakes. Similar problems have arisen across the country, so, while the federal guidance was issued in the Sharp case, it is clearly intended to assist police departments nationwide to develop appropriate policies and training programs to ensure the public’s right to record.

The Department of Justice specifically recommends that police policies do the following:

  • Affirmatively set forth the First Amendment right to record police activity;
  • Describe the range of prohibited police responses to individuals observing or recording the police;
  • Clearly describe when an individual’s actions amount to interference with police duties;
  • Provide clear guidance on the necessity of supervisory review of any proposed action to be taken by officers against an individual who is recording police;
  • Describe the narrow circumstances under which it is permissible for officers to seize recordings and recording devices; and
  • Indicate that no higher burden be placed on individuals exercising their right to record police activity than that placed on members of the press.

For more information about the ACLU of Maryland’s work regarding the Sharp v. Baltimore City Police Department case visit our page on the issue here:

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