This past February, tech entrepreneur Scott Cover was walking home late on a weekend night when he saw six Baltimore Police officers standing over a handcuffed man—sitting in the cold, wet street. Cover did what many of us do nowadays when confronted with an interesting scene unfolding in the public sphere. He pointed his camera and started recording.
Cover assumed he was well within his rights to do so. Less than a day earlier, the office of the Baltimore Police Commissioner had issued a general notice that citizens have an “absolute right” to film police activity, so long as the recording wasn’t used in pursuit of a crime.
Scott Cover shot back: “You guys do know you have a standing order to allow people to record?”
The six Baltimore officers being filmed, however, had different ideas.
Upon seeing Cover’s video camera, four officers immediately broke off from the pack and threatened to arrest him.
Cover shot back: “You guys do know you have a standing order to allow people to record?”
Indeed they did. So they threatened to arrest him for loitering instead if he didn’t go away quietly. Officers produced a set of handcuffs for Cover’s perusal, and the citizen journalist was forced to back down.
The incident is one of many in recent years in which law enforcement officers have arrested or intimidated citizens for the perfectly legal act of recording public servants in the public sphere. Just last week, however, civil libertarians and First Amendment advocates received a rare victory—courtesy of U.S. Attorney General Eric Holder’s Department of Justice. The office sent a scathing letter to the Baltimore Police Department condemning Cover’s treatment and that of several other photographers who were harassed by the BPD while attempting to legally film police activities.
The message was unequivocal:
“[P]olicies 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.”
Holder’s DOJ letter was specific to Baltimore, but First Amendment advocates across the country hope its sweep could be much broader. In both Los Angeles and New York, the ACLU has filed lawsuits against police agencies for detaining or arresting photographers working in the subway systems. Could Holder’s letter apply in those cases too?
Peter Bibring, a senior staff attorney with the Southern California chapter of the ACLU, says the answer is “yes and no.”
“The clear consensus of courts is that the First Amendment protects a citizen’s rights to photograph police,” he tells TakePart. “This letter is an important recognition of that protection. But, to be clear, it doesn’t set policy. What it does is recommend police agencies have certain policies in place. This is the first time the DOJ has taken a stance on this issue. But the letter isn’t binding in any way.”
That said, the Baltimore letter does offer guidance into several issues that even the courts have yet to touch—namely, whether police have the right to seize and erase photographic material without a formal warrant.
“If an officer thinks there is evidence on tape,” explains Bibring, “and a person thinks there is evidence of officers misbehaving, the DOJ makes it clear that citizens need assurance their videos and photos will be protected.”
As last fall’s police crackdown on Occupy encampments across America showed, videotaping law enforcement activity is key to protecting citizens from unlawful arrest and police harassment. The arrests of journalists during those crackdowns also showed police are trying their hardest to avoid the kind of 21st century scrutiny that could genuinely hold them accountable for misbehavior.
The DOJ’s letter to the Baltimore Police Department may be just a small victory for First Amendment advocates. But if it means the feds are finally beginning to cede ground on their post-9/11 Big Brother/Patriot Act law enforcement fetishism, we should all be thankful.
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