DOJ Defends Your Right to Record

We haven’t pulled punches in our criticism of the Holder Justice Department, so it’s especially important that we give credit where credit is due. In support of an important case brought by the ACLU of Maryland defending the right to record, the DOJ’s 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 DOJ’s move is particularly welcome given what promises to be a spring and summer of protest around the country. The NATO summit kicks off this weekend in Chicago, and significant protests are expected around, among many other events, the GOP and Democratic presidential nominating conventions in Tampa and Charlotte, respectively.

At all of these events, protesters, the press, and bystanders alike will be carrying sophisticated smartphones that permit high-quality video and audio recordings of police activities. Not only will this monitoring heighten trust in the authorities, it will discourage police abuse and provide a record of any such abuse (which protects both law enforcement and protesters alike). Additionally, and importantly for folks following H.R. 347, the right to record helps document any attempt by the Secret Service and other law enforcement agencies to discriminate against protesters because of the content of their protest (think opponents of the Afghanistan war or Tea Party members), or to sequester inconvenient protesters in “free speech zones” far away from the cameras.

You can find our resources on photographer and videographers’ rights here and here.

Note: this post was updated May 19 to clarify that the DOJ's letter was in response to a case brought by the ACLU of Maryland, not to a sign-on letter to the DOJ on the issue joined by the ACLU.