Recording police with your smartphone is a Constitutional right, says DoJ


Police Arrest Recording

In a win for technology, citizen journalism, and our Constitutional rights, the U.S. Department of Justice has issued a letter to the Baltimore City Police Department reconfirming that photographing, video- and audio-recording on-duty police officers is a Constitutional right protected by the First, Fourth, and Fourteenth Amendments.

“Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations,” reads the DoJ’s letter (pdf). “More particularly, policies 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.”

The letter, which was brought to our attention via photojournalist Carlos Miller of PixIQ (who says in his bio that he’s been arrested three times for recording police), comes in response to a lawsuit brought forth by the American Civil Liberties Union on behalf of Christopher Sharp, against the BPD, whose officers confiscated Sharp’s cellphone and deleted a video of police arresting his friend at the 2010 Preakness Stakes horse race.

After the DoJ first took interest in the lawsuit earlier this year, the BPD issued a seven-page General Order to officers stating that citizens have the “absolute right” to record police doing their duties, provided the recording does not violate any other laws, like obstruction of justice. Rather than stick to these principles, however, BPD simply adopted a broader interpretation of the law, which led to further crackdowns on recording. The DoJ’s most recent letter, issued on May 14, says that the BPD’s order does not go far enough to protect the rights of citizens.

The DoJ’s letter, written by Jonathan Smith, chief of the special litigation section of the Justice Department’s Civil Rights Division, also reconfirms that members of the press and other private citizens share the same right to record police, and that displaying press credentials should not be a prerequisite for recording police officers.

“This principal is particularly important in the current age where widespread access to recording devices and online media have provided private individuals with the capacity to gather and disseminate newsworthy information with an ease that rivals that of the traditional news media,” writes Smith.

So for those of you wondering whether or not you should turn on your smartphone’s video camera when you see the police doing something you think isn’t right, feel free to hit the “record” button — you clearly have the right to do so. Just make sure to stay out of the officers’ way, or you might not have a leg to stand on (legally speaking, of course).

Image via homeros/Shutterstock

Showing 6 comments

  1. Donald Wiley Quixote 2 years Ago  
    Of course it is.
  2. Adam Hughes 2 years Ago  
    Nice article dt
  3. Max Gelber 2 years Ago  
    I'm disturbed by the language about "limited circumstances" that could allow police to seize such footage without a warrant.

    As far as I'm concerned, there should be zero circumstances where such footage, taken in public spaces as we have the right to do, without a warrant.

    But then again, this did have to be addressed by the DoJ, so all logic as kind of been tossed out the window a long time ago.
    1. Yeah, it's a relative win, but I still see some problems with this and I think there are a few states that forbid it, still. I'd have to check on that, though.
      1. Well, if the DoJ says it's a Constitutional right, that gives quite some grounds in court in similar cases across the country. Plus as for Max's concern, the statement says that these "limited circumstances" apply only if the one recording is simultaneously committing a separate crime. They do require a warrant under this and are prohibited from deleting media off your device and/or destroying it.
        1. So, if they DO "delete media off my device and/or destroy it"? I guess I should get it to an expert to recover the data and then have my lawyer send the police department the bill for getting it back...