DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted. The ACLU (a leading voice on the First Amendment right to record in public, as reflected in its efforts in Glik v. Cunniffe and ACLU v. Alvarez) helped Sharp file suit against the Baltimore PD for violation of his First Amendment rights in Sharp v. Baltimore City Police Department, a civil rights action filed in the U.S. District Court for the District of Maryland.

In January 2012, the Department of Justice got involved in the case. Contrary to what might be expected, the DOJ was not supporting the police department – instead, it filed a "Statement of Interest" in support of Sharp's position in the case, stating:

This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens' Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. 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. 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. 

The DOJ filed the Statement pursuant to 28 U.S.C. § 517, which permits "any officer of the Department of Justice" to be "sent by the Attorney General to any State ... to attend to the interests of the United States in a suit pending ... in a court of a State[.]" Defining the interest of the federal government in the Sharp case, the DOJ cited to the police misconduct provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (a law passed in response to the Rodney King incident, which permits the Attorney General of the United States to file lawsuits against police departments engaging in a pattern or practice of violating citizens' federal rights) as well as the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964.

The Statement of Interest reads like an amicus curiae brief (compare the CMLP's brief in Glik and the Reporters Committee for Freedom of the Press's brief in Alvarez); it contains strong arguments that there is a First Amendment right to record the police, that Baltimore police officers violated Sharp's First, Fourth, and Fourteenth Amendment rights when they deleted his footage, and that the Baltimore PD's attempt to prevent future violations of citizens' rights through revised policies and training protocols was insufficient.

Then, on May 14, 2012, the DOJ took further action in the Sharp case, this time sending an open letter (available publicly on the DOJ's website) to the parties in advance of a settlement conference scheduled by the court. The DOJ served the letter on counsel for the parties, taking the position that if Sharp and the Baltimore PD were to settle the case, any settlement should require that the police department adopt "policy and training requirements that are consistent with important First, Fourth and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties." 

Critically, the DOJ's letter extends beyond the Sharp case. Although phrased as a critique of Baltimore's existing policies, the letter sets forth the DOJ's view on a national standard for all police departments, "reflect[ing] the United States' position on the basic elements of a constitutionally adequate policy on individuals' right to record police activity." Acknowledging that Baltimore's existing po