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 policies and procedures were adequate in certain respects and deficient in others, the DOJ states that a constitutionally sufficient policy on recording the police should:

• "...affirmatively set forth the First Amendment right to record police activity." Policies should inform police officers that the right to record the police flows from the First Amendment and is of constitutional dimension.

• "...describe the range of prohibited responses to individuals observing or recording the police." Policies should specifically tell police officers what they are not allowed to do with respect to citizens that are recording them, including describing actions that require a warrant and stating that police are prohibited "from destroying recording devices or cameras and deleting recordings or photographs under any circumstances."

• "...clearly describe when an individual's actions amount to interference with police duties." In order to prevent the use of charges such as obstruction of justice to punish citizens who exercise their First Amendment rights, policies should "set forth with specificity the narrow circumstances in which a recording individual's interference with police activity could subject the individual to arrest."

• "...provide clear guidance on supervisory review." Policies should clearly state when officers in the field must seek guidance from a supervisor before taking action with respect to a citizen.

• "...describe when it is permissible to seize recordings and recording devices." Policies should inform police officers about warrant requirements, require care so that any consent to search and seizure is not coerced, inform officers that the limited circumstances justifying warrantless seizure of a camera do not also justify a warrantless search of the camera's contents, and inform officers that search and seizure of a recording device can be an unconstitutional prior restraint under the First Amendment (on which point, read Lauren Campbell's recent blog post).

The letter goes into significant detail with respect to each of these items, eliminating gray areas so that police departments do not have discretion to set their standards in a manner that infringes individual rights.

The DOJ also stands up for the right of citizen journalists, stating that police departments "should not place a higher burden on individuals to exercise their right to record police activity than they place on members of the press."  According to the DOJ, "this princip[le] 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."

The consequences of the DOJ's decision to become involved in the Sharp case should not be underestimated. The Statement of Interest and the May 14 letter are an encouraging affirmance of the federal government's duty to protect individuals against the abuse of state power, and a strong affirmation of Christopher Sharp's right to be free from interference for recording police officers. But that is not all that they are.

Rather, this is a move by the DOJ on the national stage to stem police abuse of constitutional rights. These public declarations of the United States' position on the right to record will undercut any future attempt by individual officers to claim that the law is unclear. This means that officers will have a harder time escaping citizen lawsuits on a "qualified immunity defense" by claiming that they did not know they were violating the First Amendment.  

Similarly, the May 14th letter's point-by-point description of baseline satisfactory policies provides a road map for any individual claiming that a police department failed to train its officers to avoid constitutional violations. Any police department in the United States that does not adopt a policy complying with the DOJ's standards will be inviting a Section 1983 claim the next time that one of its officers crosses the line.

It is still all too common that citizens are abused for exercising their First Amendment right to record and report on the activities of the police and other public officials. However, the fact that the federal government has stepped into this crisis in a very public way signals an important shift in the balance of power between individuals and the police.

Jeff Hermes is the Director of the Citizen Media Law Project, and is wondering whether the plaintiffs' bar or the First Amendment bar will be the first to start filing serial lawsuits on this issue.

(Photo of Department of Justice building courtesy of Flickr user netmonkey pursuant to a Creative Commons BY-NC-SA 2.0 license)