With camera-equipped smartphones ubiquitous, police and other officials are under more scrutiny than ever. Citizens have uploaded videos that have been seen by millions: the pepper-spray cop at UC Davis; Patrick Pogan, the NYPD rookie who knocked a cyclist off his bike with no provocation; Anthony Bologna, the NYPD inspector who pepper sprayed female protestors in the face. Videos like these often result in bad publicity for the department and recriminations for the police officers caught on camera. Maybe this is why some cops try so hard to stop filming before it starts.
Increasingly, these policies and actions are facing harsh judicial criticism. This April, a federal appeals court in Chicago ruled that the state’s wiretapping law, under which citizens may face up to 15 years in jail for filming an on-duty police officer without consent, “likely violates the First Amendment’s free-speech and free-press guarantees,” making it much more difficult to prosecute offenders.
This past Monday, May 14, the US Justice Department weighed in with a strong message to attorneys for the Baltimore Police Department about the public’s right to record police officers, and the illegality of deleting files. The 11-page letter was issued just two weeks before the BPD goes to court on May 30 for a suit brought by a man named Christopher Sharp. Officers seized the phone Sharp was using to record a friend’s arrest; when Sharp retrieved the phone, it had been wiped of all files, including pictures and video of his family.
The DOJ writes that its statement in the Sharp case “reflects the United States’ position on the basic elements of a constitutionally adequate policy on individuals’ right to record police activity”:
Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block of obstruct cameras or recording devices.
And as far as deletion:
Policies should prohibit officers from destroying recording devices or cameras and deleting recording or photographs under any circumstances.
In its letter, the DOJ refers several times to Glik vs. Cunniffe, a landmark case concerning public recording of police activity. In 2007, Simon Glik was arrested and prosecuted for using his phone to record a man’s arrest on the Boston Common. He was charged with illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. The judge dismissed the charges and Glik filed a civil suit. (Glik was awarded a $170,000 settlement from the Boston Police Department this March.) The First Circuit in Glik’s case unanimously ruled that Glik’s arrest violated both the First and Fourth Amendments. In his widely cited opinion, Judge Kermit Lipiz wrote:
[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
Carlos Miller used to be credentialed in the traditional sense. In the 1990s and early 2000s, Miller was a police reporter for the Las Cruces Sun-News, San Bernardino Sun, and other newspapers. “Police is my passion,” says Miller. In 2004, Miller left The Arizona Republic and moved back to Miami, where he is from. “I saw the direction that newspapers were going and it didn’t seem very promising,” says Miller, who is 43. “I wanted the freedom to work independently as a journalist.”