Recording police with your smartphone is a Constitutional right, says DoJ

Police Arrest Recording

In a win for technology, citizen journalism, and our Constitutional rights, the U.S. Department of Justice has issued a letter to the Baltimore City Police Department reconfirming that photographing, video- and audio-recording on-duty police officers is a Constitutional right protected by the First, Fourth, and Fourteenth Amendments.

“Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations,” reads the DoJ’s letter (pdf). “More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers 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.”

The letter, which was brought to our attention via photojournalist Carlos Miller of PixIQ (who says in his bio that he’s been arrested three times for recording police), comes in response to a lawsuit brought forth by the American Civil Liberties Union on behalf of Christopher Sharp, against the BPD, whose officers confiscated Sharp’s cellphone and deleted a video of police arresting his friend at the 2010 Preakness Stakes horse race.

After the DoJ first took interest in the lawsuit earlier this year, the BPD issued a seven-page General Order to officers stating that citizens have the “absolute right” to record police doing their duties, provided the recording does not violate any other laws, like obstruction of justice. Rather than stick to these principles, however, BPD simply adopted a broader interpretation of the law, which led to further crackdowns on recording. The DoJ’s most recent letter, issued on May 14, says that the BPD’s order does not go far enough to protect the rights of citizens.

The DoJ’s letter, written by Jonathan Smith, chief of the special litigation section of the Justice Department’s Civil Rights Division, also reconfirms that members of the press and other private citizens share the same right to record police, and that displaying press credentials should not be a prerequisite for recording police officers.

“This principal is particularly important in the current age where widespread access to recording devices and online media have provided private individuals with the capacity to gather and disseminate newsworthy information with an ease that rivals that of the traditional news media,” writes Smith.

So for those of you wondering whether or not you should turn on your smartphone’s video camera when you see the police doing something you think isn’t right, feel free to hit the “record” button — you clearly have the right to do so. Just make sure to stay out of the officers’ way, or you might not have a leg to stand on (legally speaking, of course).

Image via homeros/Shutterstock

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