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Tuesday, January 24, 2012

Department of Justice supports people's right to record the police

At the  2010 Preakness Stakes in Baltimore, Christopher Sharp of Howard County, Maryland, used his cellphone to record the police forcibly arresting a friend of his. They then forced him to surrender the cellphone and erased the recording (along with other personal recordings that Sharp had on his phone).

With assistance of the Maryland ACLU, Sharp sued in federal court for violations of his constitutional rights. The Civil Rights Division of the U.S. Department of Justice is now seeking to participate in the case, in support of people's right to record police actions that occur in public. This seems to be the first time that the Department of Justice has taken such a step. The Justice Department's court filing in the case, Sharp v. Baltimore City Police Department, is here.

It states:

"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.....

"Federal courts have recognized that recording devices are a form of speech through which private citizens may gather and disseminate information of public concern, including the conduct of law enforcement officers. The First Circuit recently held in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that “[b]asic First Amendment principles” and federal case law “unambiguously” establish that private citizens possess “a constitutionally protected right to videotape police carrying out their duties.” Id. at 82. See Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing the “First Amendment right to film matters of public interest”); Robinson v. Fetterman, 378 F. Supp. 2d 534, 542 (E.D. Pa. 2005) (finding “no doubt that the free speech clause of the Constitution protected” plaintiff who videotaped officers because “[v]ideotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence”). The right to record police activity is limited only by “reasonable time, place, and manner restrictions.” Glik, 655 F.3d at 84; see Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (noting “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions,” and finding “insufficient case law to establish a right to videotape police officers during a traffic stop,” an “inherently dangerous situation[ ]”)......"


"The Supreme Court has held that Fourth Amendment limitations on law enforcement officers’ authority to seize individuals’ property must be “scrupulously observed” when the item seized contains information protected by the First Amendment and “the basis for the seizure is disapproval of the message contained therein.” Walter v. United States, 447 U.S. 649, 655 (1980). This requirement that government officials closely adhere to the strictures of the warrant requirement when the item to be seized is protected by the First Amendment recognizes that the “[t]he Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Walter, 447 U.S. at 655 n.6; see also New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986) (“We have long recognized that the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures.”).

"Indeed, the seizure of material protected by the First Amendment is a form of prior restraint – a long disfavored practice only permitted in limited circumstances not present here. The Supreme Court has recognized that “seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding.” Heller v. New York, 413 U.S. 483, 490 (1973). When material falls “arguably within First Amendment protection,” and officers’ warrantless seizure of that material “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of that material, the Fourth Amendment is violated. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (“Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). Such a seizure, which prohibits the dissemination of constitutionally protected information “presents essentially the same restraint on expression as the seizure of all the books in a bookstore.” Id. at 504. As described above, Defendants’ seizure and destruction of Mr. Sharp’s videos appears to have been based on the content of those videos and prevented their dissemination. These First Amendment concerns “require[] that the Fourth Amendment be applied with ‘scrupulous exactitude.’” Maryland v. Macon, 472 U.S. 463, 468 (1985)."

Kudos to the Department of Justice for speaking up so forcefully in this instance on behalf of important individual rights.

Thursday, January 19, 2012

More police violence against a photographer?

Per this account of Mannie Garcia, an experienced professional free-lance photographer, Montgomery County, Maryland police roughed him up, stole his camera's digital card, brought false charges against him, and lied against him court - just for trying to photograph their suspicious activity on the street.

It is clear that this a nation-wide phenomenon. In far too many places, police act in contempt of the Constitution, of the truth, and of basic concepts of justice. There needs to be accountability.

What may be most disturbing about Mr. Garcia's account is his description of a continuing pattern of harassment and intimidation by Montgomery County police, after he complained against them. This is rank police lawlessness. It is incompatible with life in a free society. This should not be happening in America.