DOJ Urges Federal Court To Protect the Right to Record Police

Wednesday, January 11th, 2012

This is a big deal.

The U.S. Department of Justice’s Civil Rights Division has urged a federal court to side with a Howard County man in a lawsuit over his cellphone being seized by Baltimore police at the Preakness Stakes after he filmed officers making an arrest.

The federal attorneys say the lawsuit “presents constitutional questions of great moment in this digital age.” They asked U.S. District Judge Benson Everett Legg to rule that citizens have a right to record police officers and that officers who seize and destroy recordings without a warrant or due process are violating the Fourth and 14th Amendments.

The American Civil Liberties Union of Maryland, which is representing the plaintiff, Christopher Sharp, said it believes this is the first time the Department of Justice has weighed in on the topic of recording police.

“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,” Justice Department attorneys wrote in a “statement of interest” filed Jan. 10 in the case. “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.”

This is pretty incredible. The federal government rarely urges a federal court to give the government less power. (Yes, in this case it’s local police, but the lpolicy would presumably apply to federal law enforcement officials as well.) I’ve criticized Obama in the past for the fact that his Justice Department continually comes down on the side of more power for cops and prosecutors in federal appeals court cases (even though, to be fair, that’s also the accepted practice).

So huge props to Obama and Holder on this. This would also seem to indicate that if one of these cases eventually gets to the U.S. Supreme Court while Obama is in office, the federal government would again argue in favor of a First Amendment right to record police and other government officials in public—even if it meant opposing, say, Chicago District Attorney Anita Alvarez, the most likely opponent in a case like this.

That would be fun to see.

 

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46 Responses to “DOJ Urges Federal Court To Protect the Right to Record Police”

  1. #1 |  Dave Krueger | 

    It’s almost morning. Soon the alarm will go off and all will be as it was.

  2. #2 |  DavidST | 

    Call my cynical, but after everything I’ve seen from the government in the last ten years, I figure this is just electioneering. So we can record the cops as they take us into indefinite detention for trumped up terrorism charges? Great.

  3. #3 |  Cynical in New York | 

    An eye has to be kept on this most definitely. However I feel that there is a underlining motive to this move.

  4. #4 |  Z | 

    I am perpetually torn between Obama sucks and Obama is wonderful.

  5. #5 |  DOJ Comes Down On The Right Side...For Once - INGunOwners | 

    […] DOJ Comes Down On The Right Side…For Once The DoJ is asking a federal court to protect our right to film cops when they're in public and doing their jobs. This is a good place for them to come down on, since so many cops try to cite non-existent law or assault people for recording them in the course of their jobs. Kudos to the DoJ for once. Now if we could just get them to do something about F&F. DOJ Urges Federal Court To Protect the Right to Record Police | The Agitator […]

  6. #6 |  Joe in Missouri | 

    Yes it’s a big deal but the feds have no jurisdiction except for the right to record federal government employees.

    We have this right if free speech is not covered in your state Constitution as an Inalienable right

  7. #7 |  freedomfan | 

    Very curious. And very unlike the transparency-hating, authority-loving, accountability-dodging, police-power-supporting Bush Obama administration. (Sorry, they are 99% interchangeable on these issues.)

    This could just be a political calculation, an attempt to get on the popular side of an issue that is more and more in the news. Since the average cell-phone-carrying voter has to be pretty unhappy with the notion that they could be arrested for using it to record an on-duty cop, this is a winner for whoever takes a stand on it, particularly if they aren’t going to get too much of the badge-worship vote anyway. And, since the courts are likely to eventually strike down the anti-cop-recording laws, why not march at the front of the parade? And, as a bonus, any political opponents dumb enough to take the bait and oppose the policy have further undermined their claims to support limited government.

    Or it could be that the administration has encountered that needle in the haystack situation where they feel the enormity* of government power is already enough. (*Yes, that’s the right word.)

    Either way, it’s a good thing.

  8. #8 |  FloO | 

    “The federal government rarely urges a federal court to give the government less power.”

    Yes, I wonder what the real motivation is, i.e. the “catch.”

  9. #9 |  Bill | 

    Why was obama’s name thrown into this mess?

  10. #10 |  Michael Chaney | 

    “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,”

    And they still don’t get it. There’s no such thing as a “warrantless seizure” – it’s simply theft. Actually, it’s strong-arm robbery, with “firearm” and “under color of law” being aggravating circumstances in most jurisdictions.

    “Destruction of those recordings” is actually “destruction of evidence”. That also is typically a felony.

    And usually those cases also involve a kidnapping (e.g. “arrest” without statutory authority).

    The point is that if we simply used that quaint notion of “rule of law” and applied the laws we already have this would stop immediately.

  11. #11 |  picachu | 

    All that ACLU and Glenn Greenwald criticism from the left is starting to make them sit up and take notice. Soooo maybe they’re starting to campaign a little early in hopes of winning civil libertarians back before the election.

    At any rate, whetver their motives, props to Holder and to Obama as well for taking a stand that their own bureacrats must be horrified by.

  12. #12 |  Contrarian | 

    Holy Crap! I had to check the calendar to make sure it wasn’t April 1. The Obama/Holder Justice Department coming down on the right side of an issue? A civil liberties issue? Holy Crap!

  13. #13 |  DoubleU | 

    You can record them right up until the time they break the recording device into small pieces.

  14. #14 |  DarkEFang | 

    Some of Haley Barbour’s pardons have been blocked by a Mississippi judge at the behest of AG Jim Hood:

    http://www.washingtonpost.com/national/miss-court-temporarily-blocks-release-of-some-pardoned-by-barbour-in-1-of-final-acts-as-gov/2012/01/11/gIQAYuMzrP_story.html

  15. #15 |  Aresen | 

    I suspect that the “catch” is that, if the public’s right to record police in public places is called into question, then the government’s right to record the public is also called into question.

  16. #16 |  Aresen | 

    @ DarkEFang | January 11th, 2012 at 11:50 pm

    Why am I not surprised that Jim Hood would be involved in trying to block pardons?

  17. #17 |  Onlooker | 

    It’s a shame that we can be so surprised and even shocked at our government actually wanting to comply with our Constitution. All the savaging of the rights therein guaranteed has really become overwhelming. And progress in the other direction is a breath of fresh air.

    Of course those of us that have become so cynical (count me as one) don’t really believe it’s true. There must be ulterior motive. How very sad.

  18. #18 |  Peter H | 

    Perhaps someone better informed than I can give some feedback on this, but while I am pretty sure DOJ wouldn’t be estopped from changing this position on appeal (in, say, a Romney administration) does the fact that DOJ has ever taken the position carry any weight for future cases/appeals? That is, if DOJ comes up as amicius in a case out of, say, Chicago, would this letter be cited/citable, and is it likely to have any impact?

  19. #19 |  FloO | 

    I’m not sure exactly why, but this reminds me of Obama’s speech about how he was excited to expand off-shore drilling off the Va coast (when you know he really wasn’t) right before the BP oil rig disaster, resulting in his dictatorial moratorium on oil drilling. When the Obama administration takes a weird, incongruous position (that I don’t think they really believe), I don’t foresee good things happening in the end.

  20. #20 |  Caleb | 

    @ Peter H

    Nope. Estoppel only functions when a party asserts a position which affects its or the other party’s legal status in a particular case. (i.e. a bank cannot inform you informally that is has forgiven your debt, then proceed against you in court when you don’t pay it.) The DOJ is not a party to this dispute. I don’t know what a “statement of interest” is, but I assume it’s similar to an amici curiae. Also, even if the DOJ was estopped from asserting that the recording is not permissible in *this* case, that would not stop it from asserting that it is not permissible in *another* case with a different defendant.

  21. #21 |  30 year lawyer | 

    Peter H,

    Anytime an agency gets actually caught (like in writing) talking out of both sides of their mouth, it’s embarassing and likely to do their current position no good. In oral argument it is always nice to be able to say “As the government itself properly recognized in Brown v. White, . . .”.

  22. #22 |  EH | 

    So, is it OK to lobby the judge when you agree with the lobbyist? #2 is exactly right, and even so, the DOJ has no standing in this case. Do they? If not, it’s par for the Obama course: operate by political minimums. If so, it’s one late act in a huge play that is about to close early with bad reviews.

    Kill PIPA and we can start talking. But no, I don’t think Obama has it in him to go against Leahy.

  23. #23 |  Mike T | 

    You know what they say about broken clocks…

  24. #24 |  Dante | 

    I’m with DavidST at #2.

    Just like promising to close Gitmo, just like promising to end the war on drugs, this is a ploy to get re-elected.

    Then, it goes back to “meet the new boss, same as the old boss”.

    The Federal Govt. will never derail its’ own gravy train.

  25. #25 |  Mario | 

    freedomfan @ #7

    I just want to thank you for the proper use of the word enormity. (I usually see it used in place of “enormousness,” and that happens to be one of my pet peeves.)

  26. #26 |  MassHole | 

    Could it be they see the way the wind is blowing on this and are just getting on the bandwagon? Maybe they are confident the courts are going to rule in favor of recording cops in public anyway so why not get the free props? Either way, more please! I can’t wait vote for Ron Paul or Gary Johnson.

  27. #27 |  John Regan | 

    Maybe it’s all just a mistake. Somebody in the office didn’t get the memo, or the right one, and heads will roll.

  28. #28 |  Bob | 

    It’s almost like it’s an election year.

  29. #29 |  CyniCAl | 

    No way.

    This is just posturing.

    The judge will rule against the DOJ. There is no way the State will cede this power to control information.

  30. #30 |  MH | 

    “Just like promising to close Gitmo, just like promising to end the war on drugs, this is a ploy to get re-elected.”

    I didn’t think Obama ever promised to end the war on drugs. I thought he just made noises about being more tolerant of states’ legalizing medical marijuana, which he then reneged on.

    That said, you’re probably right that it’s a ploy. But it is encouraging if he thinks the faction of the left that cares about civil liberties is electorally relevant.

  31. #31 |  Danny | 

    Romney had better hurry if he wants maintain his streak and get on both sides of this issue within the same news cycle.

  32. #32 |  DarkEFang | 

    It has been suggested to me that the Occupy Wall Street movement – or rather, the police reaction to OWS protests around the country – is responsible for focusing attention on police militarization and abuse of authority as a topic of conversation for the average American. I wonder, is there any truth to that? It would certainly be interesting if criminal justice reform ended up being the ultimate legacy of OWS.

  33. #33 |  Yizmo Gizmo | 

    IN what other cultures, besides, say, Nazi Germany and current USA, were
    people forbidden from photographing police officers or “Federal” buildings?
    Inquiring minds want to know.

  34. #34 |  angrygnat | 

    I’m sure this a pawn move… When the lower court sides with the local cops the DOJ will throw up their hands and declare, “We Tried”…..

  35. #35 |  Thursday Links « Young Americans for Liberty – Ole Miss Chapter | 

    […] a judge to rule in favor of allowing citizens to record police officers on duty. As Radley Balko notes, “The federal government rarely urges a federal court to give the government less […]

  36. #36 |  Alex McHugh | 

    http://www.righttorecord.org/ Some good stuff on rights as they stand, copwatching, and tips. Thought anyone reading this would find it interesting.

  37. #37 |  Robert | 

    @ #33: “IN what other cultures, besides, say, Nazi Germany and current USA, were people forbidden from photographing police officers or “Federal” buildings? Inquiring minds want to know.”

    China, Saudi Arabia and Iran come to mind right off the top of my head. England also seems to have a problem with it. I’m sure there are many others.

  38. #38 |  MH | 

    _Did_ the Nazis actually prohibit photographing police officers or government buildings? Not sure it would have made much sense, as there was no youtube, and no other free media that would publish things that made the government look bad.

  39. #39 |  PersonFromPorlock | 

    …and that officers who seize and destroy recordings without a warrant or due process are violating the Fourth and 14th Amendments.

    Also the First Amendment, since the records made could be essential to someone’s petitioning for a redress of grievances.

  40. #40 |  BamBam | 

    @33, you can start with this list
    http://en.wikipedia.org/wiki/Indefinite_detention

  41. #41 |  Clocking Out: Actually Kind of Heartwarming Edition « Main Street | 

    […] A legal victory for Occupy Wall Street. […]

  42. #42 |  nospam | 

    “#29

    No way.

    This is just posturing.

    The judge will rule against the DOJ. There is no way the State will cede this power to control information.”

    That’s what I’m thinking. No way the DOJ would have filed this if they didn’t know up front that this court is going to rule for the cops. I may not know a lot of things, but I can tell when someone is trying to play me.

  43. #43 |  CyniCAl | 

    Amen, nospam. Power is a one-way street, it only seeks more power.

    Yizmo was just Godwining the thread. It’s entirely possible that there were no prohibitions on photographing Nazi officials in public and government buildings.

  44. #44 |  Person From Oregon | 

    I have a 60 year old decrepit friend who was beaten by Bend Oregon police for a recording of a police incident regarding parking in a disabled parking spot. His disabled parking placard fell from his mirror and he received a $250 ticket. When he protested, he was beat. He weighs all of 140 pounds. He has serious health problems and was beaten in front of hospital then taken to the emergency room of the same hospital. Then was further abused by their staff.

  45. #45 |  Obama Administration Supports Right To Record Police | Popehat | 

    […] at me to get off of his lawn, Scott Greenfield points out that he already wrote about this, as did Radley Balko. Perhaps. But Andrea was the one who used a shiny object to attract my attention at the price moment […]

  46. #46 |  Worthwhile Obama initiatives « Phil Ebersole's Blog | 

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