By Justin Fenton, The Baltimore Sun
3:55 PM EDT, May 17, 2012
The U.S. Department of Justice isn't satisfied with the Baltimore Police Department's recently issued orders on the public's right to record officers.
Jonathan Smith, chief of the special litigation section of the Justice Department's Civil Rights Division, filed an 11-page letter with the court this week in the case of Christopher Sharp, a Howard County man suing police for allegedly deleting videos from his cellphone after he recorded an officer arresting a woman at the 2010 Preakness.
Since the suit was filed, police say they have drafted new guidelines and implemented training to instruct officers that citizens can record officers' actions. A settlement conference is scheduled May 30.
In his letter, sent to attorneys in the case and obtained by the photography website Pixiq, Smith said the new police policy does not adequately protect individuals' constitutional rights in some areas. It should be more clear in prohibiting the deletion or destruction of recordings "under any circumstances," Smith wrote, and it does not define what constitutes the "public domain" where recordings can take place.
The policy also should instruct officers "not to threaten, intimidate or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or other recording devices," Smith wrote.
The case is believed to be the first where the Justice Department has weighed in on the public's right to record police officers, an issue that has exploded in recent years with the growing prevalence of camera phones.
The issue has grabbed headlines several times in Maryland, perhaps most notably in 2010 when a motorcyclist, Anthony Graber, was charged in Harford County with videotaping on a helmet-mounted camera his interaction with a state trooper who had pulled him over at gunpoint for speeding.
Harford County prosecutors filed charges against Graber, and state police raided his home after the video was posted on YouTube. The Amerkican Civil Liberties Union successfully defended Graber against criminal charges related to the taping, and the case sparked debate about Maryland's strict wiretapping laws and recording law enforcement officers in public places.
The Maryland attorney general's office later issued an opinion advising police agencies that people have a right to record officers and that most interactions between police and the public cannot be considered private.
The ACLU is helping Sharp in his case. They say officers stopped Sharp and erased his videos, including many of his young son, after he declined to surrender his cellphone as "evidence." He had been recording a May 2010 incident involving a friend, Anna Chyzhova, who was arrested for allegedly striking a patron at a ticket window at Pimlico Race Course.
Police dispute the ACLU's contention that what happened to Sharp constitutes a pattern within the Police Department, and have said that their attempts at reform are sufficient.
"The BPD is, to my knowledge, among a select few police departments in the nation that have promulgated a general order regarding the issue of video recording police activity," wrote Deputy Commissioner John P. Skinner in a Nov. 14 sworn statement.
The city's Fraternal Order of Police chapter has expressed concern that the new efforts could jeopardize officers' safety. A video was posted to YouTube recently of a man with a camera hovering over an officer and asking questions as the officer attempts to detain another man.
"A lot of cops are afraid of doing anything to anyone if they're holding a cellphone or a camera," FOP President Robert F. Cherry said. "An officer making an arrest never wants anyone to get too close to them. It's for their safety and for the safety of the person they're arresting.
"I think our guys are confused right now," Cherry said. "If this guy didn't have a camera in his hand, you think the officers would've let him get so close? He can videotape from across the street."
The DOJ in its letter says police need to better define when an individual's actions amount to interference with police duties, and highlights the recent news articles. Smith said citizens are entitled to express criticism of officers, and even curse and make obscene gestures.
And he says the current policy doesn't make clear under what circumstances a citizen could be considered to be interfering, language that Smith says "encourages officers to use their discretion in inappropriate, and possibly unlawful, ways." But he appears to offer no suggestions on what the policy should say instead.