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.
The most recent police recording incident to catch the DOJ’s eye took place in Montgomery County, and involved a free-lance photographer who was arrested by local police. The photographer was arrested for disorderly conduct after he snapped a few photos of police using excessive force to arrest two men. The photographer identified himself as part of the press and complied with officer’s requests to move back from the scene, but nonetheless he was arrested and his camera was confiscated. The man hired a civil lawyer to sue, and Montgomery County has filed a motion to dismiss the case. But with the Justice Department’s influence it is hard to see how any judge would dismiss the lawsuit.
The Montgomery County Police Department has a policy that citizens are allowed to record cops fulfilling their official duties, provided that they are doing so in a public place and not jeopardizing anyone’s safety, or the collection of evidence. Many police officers are perfectly fine with the policy, and understand and embrace their role as public servants. We have spoken to various cops who fully support the public’s right to record them. Some even believe it can help exonerate them from allegations of wrongdoing and false arrests out on the street. Granted, most of the officers that agree with this policy are older, more experienced, and less likely to abuse their authority. And while this policy may exist on paper, the arrest of a photographer for taking pictures on the street proves that some officers are still either unaware or unwilling to abide by it. Few if any police departments actually offer training on how to handle situations where citizens are legally exercising their right to take video or photos. It is safe to say that departments may begin to add this training to their curriculum, as the state and the country’s top law enforcement officials have sent a clear message that the public’s right to document cops must be protected.
Benjamin Herbst is a civil and criminal trial lawyer handling cases in Maryland state and federal courts. Contact Benjamin at The Herbst Firm for a free consultation.
DOJ Supports Filming Police Activity in Maryland, chestertownspy.com.