On Monday, March 4th, the U.S. Department of Justice filed a Statement of Interest supporting the right to record on-duty police officers in a second private civil rights lawsuit in Maryland federal court. Photojournalist Mannie Garcia was on a public street when he used his camera to document a rough arrest by Montgomery County Police officers in June 2011. An all-too-common scenario unfolded next: though Mr. Garcia was 30 to 100 feet away, an officer arrested him, placed him in a chokehold, seized his camera, threw him to the ground, and placed him under arrest for disorderly conduct. Mr. Garcia’s video card was never returned to him.

Mr. Garcia was acquitted of the disorderly conduct charges and brought a civil rights lawsuit alleging that his arrest and the seizure of his camera violated his rights under the First and Fourth Amendments of the Constitution. Though Mr. Garcia is a member of the press and even identified himself as such, it makes no difference for the First Amendment rights analysis, which is one issue rightfully emphasized in the D.O.J.’s Statement. Importantly, the Statement also expresses “concern” “that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights.”

This is the second Maryland case in which the D.O.J. has filed a Statement of Interest in the last year. In 2012, the D.O.J. weighed in on Christopher Sharp’s case—in which the Baltimore Police seized Mr. Sharp’s phone and deleted videos he had taken of BPD officers arresting his friend as well as numerous personal videos.

Both incidents involve obvious attempts to document what the recording individuals believed to be police misconduct, particularly excessive use of force in the course of an arrest. The cases provide crucial insight into how cell phones and their now-ubiquitous recording capability are understood as threats to historical impunity of police action. Recording police activity can not only be a deterrent, but can also serve as critical evidence of police misconduct in civil rights cases seeking to hold police officers accountable for their actions. Video documentation of police misconduct has been useful in a number of civil rights cases litigated over the years by People’s Law Office.

In addition, such recordings may help people who find themselves facing disorderly conduct, resisting arrest, or trespass charges get them dismissed. Those easily leveled, discretionary charges are often used by police = as a way to deter or punish people exercising their First Amendment right to record. In the Statement of Interest in Mannie Garcia’s case, even the D.O.J. admits such charges must be viewed “skeptically” by courts.

Right to Record On Duty Police Protected by First Amendment

Each U.S. Circuit Court of Appeals that has considered the issue has concluded that the right to record on-duty police activity is protected by the First Amendment. This includes the Seventh Circuit: when reviewing the A.C.L.U.’s recent challenge to the Illinois’s eavesdropping law (which specifically made it a felony to audio record on-duty police), said “Audio and audiovisual recording are media of expression commonly used for the preservation and dissemination of information and ideas and thus are ‘included within the free speech and free press guaranty of the First and Fourteenth Amendments.’” Most courts have also recognized that the right to record on-duty police should enjoy particular protection under the First Amendment because of its close relationship to public scrutiny of official government conduct and its corresponding importance in a democratic society.

While Cook County State’s Attorney Anita Alvarez is currently enjoined from prosecuting individuals who record on-duty police officers under Illinois’s eavesdropping law, the Chicago Police Department has not announced any policy changes or educational initiatives designed to prevent violations of civil rights by officers who may seize recording-capable devices believing the law to be in force. In addition, the use of discretionary charges in order to punish and deter people who attempt to hold police accountable for their actions through recordings is not directly affected by the A.C.L.U. case and remains a critical civil rights and First Amendment issue in Chicago and the nation. We at People’s Law Office continue to closely monitor how courts rule on the issue of the right to record police officers, as we see it as a First Amendment right and a crucial tool in confronting and exposing police brutality.

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The DOJ’s full Statement of Interest in Mannie Garcia’s case can be read here.

The DOJ’s 2012 Statement of Interest in the Sharp case can be read in its entirety here, and their subsequent letter to the Baltimore Police Department suggesting appropriate Department policy changes can be read here.

The Seventh Circuit’s full opinion in ACLU v. Alvarez can be read here.