The Obama administration has told a federal judge that Baltimore police officers violated the First, Fourth, and Fourteenth Amendments by seizing a man's cell phone and deleting its contents. The deletions were allegedly in retaliation for the man's use of the phone to record the officers' arrest of his friend. According to the Maryland ACLU, this is the first time the Obama Justice Department has weighed in on whether the Constitution protects citizens' right to record the actions of police with their cell phones.

Christopher Sharp was attending the Preakness horse race in May 2010 with friends. Sharp, who alleges that the police beat his friend before arresting her, pulled out his cell phone to document the encounter. According to Sharp, several officers approached him and repeatedly demanded that he surrender his cell phone so they could make a copy of the video to use as evidence.

Sharp initially refused, but fearing arrest he eventually handed the phone over. One of the officers then took the phone out of the clubhouse. When the officer returned with it several minutes later, the video of the arrest had been deleted. Also gone were at least 20 other personal videos, including some involving his son, that had "great sentimental value" to Sharp.

A pattern of misconduct?

Sharp filed a federal lawsuit in October, charging that the police had violated his First, Fourth, and Fourteenth Amendment rights. He argued that the deletion of his videos was part of a broader pattern of Baltimore police officers violating citizens' right to record the actions of police. He listed six separate incidents since 2008 in which Baltimore police threatened or arrested private citizens for recording their actions.

In one particularly shocking 2008 incident relayed in Sharp's complaint (but not directly involving Sharp), "police officers seized cell phones from individuals in the crowd and, as one officer recalled during a deposition related to the incident, began throwing the phones to the ground. As articulated by the deposed officer, officers were seizing phones because members of the crowd were recording the incident for later posting on YouTube and similar sites."

Sharp argued that this "pattern and practice" of misconduct made court intervention essential. He asked the court to declare that cell phone recordings are protected by the Constitution and to award Sharp money damages.

The city has acknowledged that citizens have the right to record the actions of police officers. In August, it provided some of its officers with formal training on citizens' rights to record the actions of the police, and it sent an e-mail to the entire police force on the subject. The city has argued these steps will prevent future violations of Sharp's rights, and that this renders Sharp's lawsuit moot. The city has asked that it be dismissed.

But the Civil Rights Division of the Department of Justice isn't impressed. "Although defendants have taken some remedial actions, these measures do not adequately ensure that violation will not recur," the Obama Administration said in a Tuesday court filing. While the city's new training materials acknowledge that it's legal to record the actions of the police, they "do not explicitly acknowledge that private citizens' right to record the police derives from the First Amendment, nor do they provide clear and effective guidance to officers about the important First Amendment principle involved."

An emerging consensus

The Maryland ACLU told the Baltimore Sun that this is the first time the Obama Administration has weighed in on the issue. The decision to come down on Sharp's side of the argument is particularly significant because the executive branch is ordinarily quick to defend the prerogatives of law enforcement. Although this specific incident involved city police officers, the same reasoning would presumably protect the right of citizens to record and disseminate videos on the conduct of officials in the FBI, DEA, and other federal law enforcement agencies.

The filing is the latest sign of an emerging consensus that the First Amendment protects the right to record the public conduct of government officials with a cell phone. Last week, the Boston PD was forced to admit its officers acted improperly when they arrested a man for recording an arrest, after the First Circuit Court of Appeals ruled against the city. And while Judge Richard Posner worried that a right to record the police will lead to excessive "snooping around," his fellow judges on the Seventh Circuit seemed sympathetic to the ACLU's argument that Illinois's strict wiretapping statute violates citizens First Amendment rights.