A May 2012 letter from the U.S. Department of Justice (DOJ) clarified its position regarding the constitutional rights implicated when an individual records police activity was made public on the DOJ’s Civil Rights Division website. The Letter was in response to Sharp v. Baltimore Police Department (BPD) where the complaint alleged that BPD had a policy of instructing officers to seize, search, and delete recordings of police activities made by individuals.
The DOJ Letter included six main guidelines for law enforcement agencies to train officers and develop policies consistent with an individual’s right to record police activity:
1. Guidelines should state the First Amendment right of individuals to record and observe police activity. The DOJ states that recording police officers engaged in their duties is a form of speech protected by the First Amendment. Policies should include examples of places where an individual may legally record police officers including public and private property, and what kinds of activity may be recorded.
2. Law enforcement policies regarding recording and observing police activity should include descriptions and examples of prohibited responses from law enforcement. Policies and guidelines should forbid officers from interfering with an individual recording police activity except in very limited situations. Moreover, officers should not be allowed to seize and search a recording device without a warrant. Under no circumstances may officers destroy or delete photographs or recordings. Officers must also refrain from more subtle ways of interference including threats, intimidation, or intentionally blocking cameras.
3. Policies should contain descriptions and explanations of what activities amount to “interference with police duties.” Policies should reiterate that individuals may record public police activity unless the individual’s actions endanger the safety of the officer or others, the individual is violating the law, or inciting others to violence. Engaging an officer repeatedly while the officer is performing his or her duties, or tampering with witnesses are examples of interference that are not protected by the First Amendment right to free speech. But if a person is not intrusive and recording from a distance, even if the individual recording is expressing criticism of the police, the individual’s actions do not amount to interfering.
4. Policies should include a system of supervisory review. The system of review should include policies that require that a supervisory officer be called to the scene before an officer takes any significant action against an individual recording police activity. Supervisors should be at the scene before an individual is arrested if possible, but at minimum should be present to approve the arrest before the person is transported to a holding facility.
5. Policies should contain clear descriptions of when officers may seize recordings and recording devices. Policies should include clear guidance for officers on how to obtain valid consent to review photographs and recordings. Policies should also include a clear list of the limited circumstances under which recordings may be seized without a warrant, and how long the seizure can last. A warrantless seizure should only occur when the officer has probable cause to believe that the recording has evidence of a crime and that the evidence may be destroyed if the officer waits for a warrant. In these cases, once seized the recordings cannot be searched before a warrant is obtained.
6. Law enforcement should give individuals the same rights to record police activity as given to the press. Policies should alert officers that the general public has the same rights to record police activity as the press and no individual should be required to present “press credentials” in order to be allowed to observe or record police activity.
The DOJ Letter is likely to urge police departments to change their policies regarding individuals who record public police activity. However, change is unlikely to come quickly and officers will continue to discourage and even arrest citizens when they exercise this constitutional right.
If at any time you feel that your constitutional rights have been violated by law enforcement officers in our area, get in touch with Orange County criminal defense attorney Lauren Johnson to share your story and see what can be done.