U.S. Dept. of Justice affirms the right to record police, offers guidelines for police policies

This week, the U.S. Department of Justice (DOJ) provided detailed guidelines on how a police department should ensure that police officers respect civilians’ First Amendment right to record them. The DOJ wrote a public letter to the parties in a lawsuit involving Baltimore police officers who seized a man’s phone and deleted its contents after he recorded officers using force to arrest his friend (Christopher Sharp v. Baltimore City Police Department, et al.).

The DOJ’s letter affirmed that recording police officers is a fundamental First Amendment right. The letter relies heavily upon the First Circuit Court of Appeals’ decision in Glik v. Cunniffe, a case brought by the Law Offices of Howard Friedman and the ACLU of Massachusetts. In that case, Boston police officers falsely arrested a man for illegal “wiretapping” because he used his cellphone to record an arrest on the Boston Common. The federal court of appeals issued a landmark decision affirming the right to record the police.

After Simon Glik filed his lawsuit, the City of Boston developed a training video for the police department based on the facts of that case. Although the video instructs police officers not to arrest people who openly record them, attorneys knowledgeable about police misconduct fear that officers will continue to arrest people who record police by using “cover charges” such as disturbing the peace and interfering with police officers “Cover charges” are bogus criminal charges that police officers bring in order to cover up their own misconduct. The DOJ’s letter cites examples of this happening in Baltimore even after the police department issued an order telling officers not to arrest people for filming them. In one case cited in the letter, Baltimore police officers threatened a man with an arrest for “loitering” because he was standing on the sidewalk recording the police.

Unfortunately, Boston Police Commissioner Ed Davis hinted that officers here may use such tactics. He stated to a WBUR reporter, “‘[The Glik case] changes our training, it changes the way we advise officers to deal with a situation… It still doesn’t give someone the right to interfere with a lawful arrest that’s occurring.’” Davis told WBUR that “police could still arrest and charge someone with obstruction if their recording of the police action gets in the way.” (Brady-Myerov, Monica. “Boston Settles Suit Over Recording Of Police Officers.” March 27, 2012. http://www.wbur.org/2012/03/27/recording-officers-settlement. Accessed May 18, 2012.)

The DOJ’s letter in Sharp condemns giving officers unlimited discretion to arrest people who are recording their actions by using cover charges. The letter says police department policies “should define what it means for an individual to interfere with police activity and, when possible, provide specific examples in order to effectively guide officer conduct and prevent infringement on activities protected by the First Amendment.” Additionally, “[o]fficers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.” This guidance is crucial to protect people who are recording police brutality or other police abuse.

The police departments of Boston and Baltimore should set an example to departments across the country by adopting the DOJ’s guidelines in their training and policies.