DOJ backs Americans right to record the police, sets up a website to report police misconduct.
In support of an important case brought by the ACLU of Maryland defending the right to record, the Department Of Justice's (DOJ) civil rights division forcefully and unequivocally endorsed our view in an unusual (but welcome!) 11-page letter to the Baltimore Police Department.
The letter provides extensive guidance in the context of a settlement conference in a suit against the BPD alleging that Baltimore police officers confiscated and deleted video from the plaintiff’s mobile phone after he used it to record officers arresting his friend. The DOJ had filed a “Statement of Interest” earlier in the case, urging the court to find a First Amendment right to record the police, and a violation of the Fourth and Fourteenth Amendments when the police seize, search, and destroy recordings without a warrant and due process. As the DOJ explained there:
"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."
The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place in a particular incident, free from accusations of bias, lying or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records.
Of course, photography is not necessarily "objective" and it is always possible in a particular case that there can be circumstances at work outside a photographic record. Overall, however, the incidents above make it abundantly clear that respect for the right to photograph and record is not well-established within the law enforcement profession.
Photography as a Precursor to Terrorism
A big part of the problem here is "suspicious activity reporting" — the construction of a national system for the collection and distribution of information. Under this system (as we discuss on this page and in this report), law enforcement leaders at the federal, state and local level push officers on the ground to investigate and report a broad spectrum of legitimate, everyday activity as potentially "suspicious" — including photography. In fact, many such programs actually suggest that photography is a "precursor behavior" to terrorism, and direct the police to react accordingly. This notion has been dismissed as "nonsense" by security experts — but appears to be disturbingly robust.
A serious question for photographers and videographers who are harassed is whether they are being entered in government suspicious activity databases or watch lists, and whether and how such a listing might come back to haunt them. An investigation of Suspicious Activity Reports by NPR and the Center for Investigative Reporting, for example, found numerous individuals were reported to the FBI for taking photographs or video in the Mall of America.
A Problem From the Top
Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio. (Unlike photography and silent video, there is no general right to record audio; many state wiretap laws prohibit recording conversations if the parties have a reasonable expectation of privacy — which is never true for a police officer carrying out his or her duties in public.)
Word appears to have circulated within law enforcement circles somehow that using wiretapping statutes is a strategy for preventing public oversight, with some taking the concept to ridiculous extremes.
In contrast, it appears to be stubbornly difficult to spread word within those same circles of the fact that photography and videotaping in public places is a constitutional right. And earlier this year, following a lawsuit by the New York branch of the ACLU, DHS agreed to issued a directive to members of the Federal Protective Service making it clear that photographing federal buildings is permitted. Yet arrests by Federal Protective Service officers appear to be continuing. You would think that police chiefs and other supervisors could easily instruct and enforce an understanding of photographers' rights among their officers. Still, for some reason, all too often that is not happening. In New Orleans, for example, in response to its public records request, the local ACLU found the police department's policy which clearly instructs officers that people have the right to photograph. Yet officers there routinely violate the stated policy.
http://www.aclu.org/blog/free-speech-criminal-law-reform/doj-defends-your-right-record
http://www.aclu.org/free-speech/you-have-every-right-photograph-cop
DOJ: Addressing Police Misconduct Laws Enforced by the Department of Justice.
http://www.justice.gov/crt/about/spl/documents/polmis.php