DOJ Reaffirms Citizens's Right To Photograph And Record On Duty Police
About a year ago the Blog posted an article addressing the issue of whether it is legal to video record a police officer engaging in his or her duties. While there is clearly no state or federal law prohibiting this protected First Amendment behavior, the answer is not so simple. In other words, despite no specific law prohibiting the act of filming a cop, it's not legal if the police can just arrest you for disorderly conduct or some other petty offense. A year ago, the Maryland Attorney General issued an opinion advising police departments around the state that the public has the right to video record its officers. The Department of Justice, or DOJ, also filed an 11-page letter with the court in a Baltimore City civil rights lawsuit. The lawsuit was based on a 2010 incident at the Preakness where a man's phone was confiscated after he was seen recording the police make an arrest. This DOJ letter pointed out that the Baltimore Police Department's policies do not adequately protect a citizen's right to record cops. Recently, the DOJ has once again reiterated its stance on this issue by filing another letter with the United States District Court in Maryland.
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A little over a year ago, Federal District Court Judge Benson Everett Legg ruled that the "good and substantial" provision of the Maryland concealed carry gun law was unconstitutional. This provision required citizens to prove to the state Handgun Permit Unit that they had a good and substantial reason before being granted a concealed carry permit. When a Baltimore County man was denied one such permit, he filed suit in federal court, and the Second Amendment Foundation, which advocates for the preservation of the right to carry, joined in the lawsuit. Despite the Attorney General's best efforts, Judge Legg concluded that the law was too broad to satisfy the state's compelling interest to protect its citizens and prevent crime. According to the Judge the good and substantial provision did not safeguard the public from every handgun related hazard, and therefore did not do enough to justify a significant limitation on the constitutional right to bear arms. But just last week, a three-judge panel sitting for the U.S. Court of Appeals for the 4th Circuit unanimously disagreed with Judge Legg, and reversed his decision.
A few months back, the blog posted an article on a controversial Maryland law that allows police to sample and store DNA from any individual arrested for a violent crime or for burglary. Despite this law still being up on appeal, for the past few months state law enforcement agencies have continued to engage in this practice under the authority of a signed order from Chief Justice Roberts. The order did not overturn a decision by the state court of appeals, which declared the DNA law unconstitutional, but rather allowed DNA sampling to continue pending a final opinion by the country's highest court. A decision on this controversial law is now expected in the coming months, as the Supreme Court recently heard arguments on the constitutionality police DNA sampling. The arguments were spirited to say the least, and at this early juncture there is no indication which way the majority appears to be leaning. But all justices are aware that this is could be a seminal opinion that could shape criminal procedure for the coming years. Justice Alito described it as the most important criminal procedure case in decades. He added that many murders and rapes could be solved using this technology, which involves a minimal intrusion on personal privacy, and asked why DNA sampling is not the fingerprinting of the 21st century. Whether these statements have tipped Alito's hand remains to be seen, but there were is certainly some skepticism from the other justices about the law's constitutionality.
Compulsory or mandatory blood tests during the course of a DUI investigation have been a hotly debated legal topic over the last decade. The debate over whether cops should legally be able to force a DUI suspect to submit to a blood draw to measure blood alcohol level has been debated in Maryland, Delaware, and in almost every state in the county. Twenty years ago it would truly have been far fetched to predict that a state could one day grant its law enforcement officers the power to force a DUI suspect to submit to a blood test without a warrant, but now this idea is becoming a reality. Many Maryland beachgoers who happen to cross over into Delaware can find out the hard way about this harsh law.
There are not many civil law topics worthy of a post on a criminal law blog, but the revival of the contributory negligence debate is one topic that deserves an exception. The Maryland civil justice system is one of four states plus Washington D.C. that uses the contributory negligence standard in all civil lawsuits. The contributory negligence standard bars recovery for a party that contributed in any manner to the accident or injury. If a plaintiff brings a civil lawsuit he or she may not recover a dime if the defense lawyers show that the plaintiff was negligent. For example, in a pedestrian accident case if the defense lawyer that represents the driver of the vehicle that hit the pedestrian shows that the pedestrian negligently ran across the street, then the pedestrian may not legally recover any damages. Even if the plaintiff's lawyer has shown the driver who caused the accident was speeding and driving recklessly.
The United States Supreme Court will temporarily allow Maryland law enforcement agencies to resume their post arrest DNA testing policies according to an order signed by chief justice John Roberts. The DNA testing policies allow all Maryland law enforcement agencies to take DNA samples of suspects arrested for violent crimes such as robbery, assault, rape, and homicide. The law also allows police to take DNA from a suspect that is arrested for burglary. Although burglary is not a violent crime, it is a crime that is often only solved when forensic evidence such as DNA or latent fingerprints is recovered from the crime scene. Maryland police agencies are not allowed to take DNA samples upon arrest of suspects that are incarcerated for common non-violent crimes such as DUI, possession of marijuana, and drug distribution.
