DOJ Argues Forcefully For Your Right To Photograph And Videotape Law Enforcement

from the good-for-them dept

Thu, May 17th 2012 8:43am — Mike Masnick

This is a bit surprising, but also nice to see. We've been covering a bunch of cases involving law enforcement -- mainly local police -- harassing and often arresting people who film them in public. Thankfully, we've recently had some very good appeals court rulings -- one in the First Circuit and another in the Seventh Circuit clearly stating that filming police is protected activity. And yet... we keep hearing about such cases.

The surprise part is that the Justice Department appears to be very much on the side of good concerning these cases. Pixiq reports on how the DOJ is forcefully responding to a situation in Baltimore where law enforcement had been finding loopholes to avoid complying with an earlier letter from the DOJ reminding them that stopping people from filming law enforcement violates the Constitution.

The DOJ sent a letter concerning a case where police went after a guy who recorded them and deleted the contents of his phone. In the letter, they state that any injunction has to include clear training:

It is the United States’ position that any resolution to Mr. Sharp’s claims for injunctive relief should include policy and training requirements that are consistent with the important First, Fourth and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties. These rights, subject to narrowly-defined restrictions, engender public confidence in our police departments, promote public access to information necessary to hold our governmental officers accountable, and ensure public and officer safety.

The letter then goes on to detail guidelines for what such training should entail. The full letter, embedded below, is worth reading. I'll admit that given many of the other DOJ actions we've talked about here, I'm a bit cynical when it comes to that operation. However, this seems like a case where it's actually standing up for the public and against the way many in law enforcement seem to view the law.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: doj, first amendment, fourteenth amendment, fourth amendment, free speech, law enforcement

44 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

A Guy (profile), 17 May 2012 @ 8:57am

Trojan Horse
While I do agree that arresting people for recording on duty officers in public is ridiculous, I doubt the DOJ is doing this to stand up for our Constitutional rights.

More likely, they want to protect the governments right to record us with drones 24x7 or keep whatever other covert monitoring plans they are currently using in place. It may be a bad legal precedent for them if these police departments win in court.
[ link to this | view in thread ]
Dr. Evil, 17 May 2012 @ 9:12am

just dont
just don't photograph the Korean War Memorial
[ link to this | view in thread ]
The Infamous Joe (profile), 17 May 2012 @ 9:17am

Re: Trojan Horse
Maybe. You might be a little over-cynical in this respect, if only for the fact that the government can already record us with drones, as long as we're in public.

The police department in question was trying to apply laws, like loitering, to people who were filming police officers while on duty in public, after they were educated to the fact that filming a police officer while on duty in public is not against the law.
[ link to this | view in thread ]
Dr. Evil, 17 May 2012 @ 9:18am

thoughts
is an undercover cop performing a 'public discharge'? (ewwww) what if they are off duty?
I have the copyright on any photos/video I create. IF the police erase it, they are depriving me of my congress-given and rights-organization-paid-for right, arent they?
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 9:26am

until the DOJ has to back a citizen up in court. that could be a whole new ball game!
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 9:26am

Re: thoughts
is an undercover cop performing a 'public discharge'? (ewwww) what if they are off duty?
If they are performing actions in public, then yes, they can be recorded as any other citizen in public can be recorded...
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 9:33am

Why ever would the police not want the public to film them lawfully carrying out the very duties that the public is paying them to carry out? It's as if they had something to hide.
[ link to this | view in thread ]
Chosen Reject (profile), 17 May 2012 @ 9:34am

Re: just dont
Will cops do all the beatings in front of the Korean memorial now?
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 9:52am

Re:
Because in there mind they are not a paid servant of us (The Public). They are THE LAW and above everyone else thus anyone filming them makes them feel like they are under scrutiny. They can not be under scrutiny they are THE LAW and can do no wrong, also it makes them feel little they arrest or abuse the person recording because of this to show they are above that person.

Note I am not saying all law enforcement is, I know a good number and they are genuinely trying to perform there public service they were hired to do. However many do not feel that way.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 9:59am

Every person I know that works for the DOJ cares deeply about this country and the Constitution. That's why it pisses me off when you're so negative about them all the time. Good for you for at least admitting they're not all bad.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 10:17am

Re:
Since the "war on terror" has been used to justify crossing every Constitutional line I can think of, I'm sure you'll understand why there may be a trust deficit.
[ link to this | view in thread ]
JaDe, 17 May 2012 @ 10:21am

Re: Re: just dont
Only if you try to dance.
[ link to this | view in thread ]
The Infamous Joe (profile), 17 May 2012 @ 10:31am

Re:
Similarly, I know a lot of cops that are good, honest people. Unfortunately, when it comes to people in a position of power over us, it's the saying about sewage and wine: "If you add a spoonful of wine to a barrel of sewage, you have a barrel of sewage. If you add a spoonful of sewage to a barrel of wine, you also have a barrel of sewage."

The fact is, a few bad members of the group cause us the distrust the entire group.
[ link to this | view in thread ]
New Mexico Mark, 17 May 2012 @ 10:33am

Caring for this country
One may "care deeply" about ones country and still do terrible things. There are a couple of high profile trials occurring in the Netherlands and in Norway where the defendants' primary defense is their love for their country.

I don't question the patriotism of most of those who work at the DOJ. I do question whether key leaders truly see themselves as equally subject to the Constitution and the other laws that apply to "ordinary" citizens of this country.

In this case, I applaud their actions. However, it is the diligence of people who refuse to accept even a little corruption as "normal" that is the highest form of patriotism.
[ link to this | view in thread ]
Thor (profile), 17 May 2012 @ 10:45am

Re: just dont
Or record the TSA:
http://www.techdirt.com/articles/20101122/16092011976/san-diego-airport-says-recording-tsa-gro pings-is-arrestible-offense.shtml

http://www.theblaze.com/stories/man-arrested-for-trying-to-reco rd-underwear-strip-down-at-tsa-checkpoint/
[ link to this | view in thread ]
Watchit (profile), 17 May 2012 @ 10:49am

The Department of Justice is actually dispensing justice? Well, color me surprised! and pleased!
[ link to this | view in thread ]
Almost Anonymous (profile), 17 May 2012 @ 11:10am

Re: Re:
"If you add a spoonful of wine to a barrel of sewage, you have a barrel of sewage. If you add a spoonful of sewage to a barrel of wine, you also have a barrel of sewage."
I like that saying, although I have to disagree with part of it. I think it would take more like a cup of sewage added to the barrel of wine to convert it into a barrel of sewage. Most wine connoisseurs would probably only detect the dispersed spoonful as a piquant flavor.
[ link to this | view in thread ]
The eejit (profile), 17 May 2012 @ 11:15am

Re: Re: Re: just dont
'Cause the cops don't dance, and if they don't dance, then they're no friends of mine.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 11:17am

Re: Re:
And the only solution to this trust deficit is more mistrust at the top to "trickle-down" thus solving the whole trust issue... wait that actually would work.

I have unknowingly provided proof that trickle down works. I feel so dirty.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 11:21am

Nope, can't do it.
I tried several times but I just can't read any sentence with capitalized THE LAW in it without using a Stallone/Dread voice.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 11:21am

Re:
Not a citizen, The Constitution (1st Amendment)
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 11:23am

Re: Re:
Governments are people too?
[ link to this | view in thread ]
RD, 17 May 2012 @ 11:24am

Re: thoughts
"I have the copyright on any photos/video I create. IF the police erase it, they are depriving me of my congress-given and rights-organization-paid-for right, arent they?"

No, because that would be destroying the ACTUAL, original, work. You would have to have them make a copy your work, thereby STEALING it, for the court or law to give a shit about your rights. Also you would have to be a major multi-national media corporation with cozy political and economic ties to the US government for anyone to arrest and prosecute the THIEF at the taxpayer expense.
[ link to this | view in thread ]
RD, 17 May 2012 @ 11:28am

Re:
"Every person I know that works for the DOJ cares deeply about this country and the Constitution. That's why it pisses me off when you're so negative about them all the time. Good for you for at least admitting they're not all bad."

Sure, every person except the policy makers and those in control of it. I'm sure the bulk the main staff are semi-regular folk and not like that, but the small group at the top dictate the tone, and the reaction to that tone is what you see here.
[ link to this | view in thread ]
Me, 17 May 2012 @ 11:37am

Send DOJ to IL to help this guy!
Facing 75 years in prison.

http://www.theblaze.com/stories/illinois-man-faces-75-years-in-jail-for-filming-police/

He'd have been better off just murdering the cop.
[ link to this | view in thread ]
The Infamous Joe (profile), 17 May 2012 @ 12:00pm

Re: Send DOJ to IL to help this guy!
The difference is that the people in Baltimore aren't breaking any laws. The guy in Illinois is breaking an Illinois law. (Sure, it's a stupid, outdated, easily abused law, but that's, unfortunately, beside the point.)
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 12:23pm

Re: Re: Re:
thats only because most wine tasters have their heads so far up their own asses they're used to the taste
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 12:33pm

Re: Re: Send DOJ to IL to help this guy!
when the doj says that filming the police is protected by the first, fourth and fourteenth ammendments..you still think the law on the books is beside he point?
[ link to this | view in thread ]
weneedhelp (profile), 17 May 2012 @ 12:43pm

Re: Re: Re: Re: just dont
AHHHHHH!!! Flashbacks of the early 80's overtaking my brain. Must... Stop.... it.
[ link to this | view in thread ]
The Infamous Joe (profile), 17 May 2012 @ 12:55pm

Re: Re: Re: Send DOJ to IL to help this guy!
Is this a trick question? The police in Baltimore were arresting people for recording the police, even though there is no law on the books that makes it illegal.

In the story linked about the man in Illinois, he was actually breaking the state's wiretapping laws, which carve out specific exceptions for police officers, so they if you don't have their consent, it's illegal to record them (audio only).

So, it's unlikely the DOJ will come to the aid of a man who has actually broken the law. (I'd love to be wrong!)

Please don't take this as an endorsement of that law (which my own state of Massachusetts also has-- they're the only two!). I think it's a horrible law, but that doesn't mean the DOJ is going to rush in and defend him.
[ link to this | view in thread ]
tqk (profile), 17 May 2012 @ 1:22pm

Re: Re: Send DOJ to IL to help this guy!
The guy in Illinois is breaking an unconstitutional Illinois law.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 5:19pm

Re: Re: Re: Re: Send DOJ to IL to help this guy!
Yes, because an illegal law is still a law. Forget about, you know, someone's constitutional rights or police oppression.
[ link to this | view in thread ]
DCL, 17 May 2012 @ 5:56pm

Re: Nope, can't do it.
Why is there any reason not to hear it in that voice?
[ link to this | view in thread ]
abc gum, 17 May 2012 @ 6:16pm

Re: Re: Re: Re: just dont
literal safety dance
pretty damn funny
http://www.youtube.com/watch?v=zZaiB9jYCxI
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 10:40pm

Re: Re: Re:
Ah, but you didn't apply it to economics, so you won't be ostracized by all thinking human beings who have ever taken a basic economics course.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 10:45pm

Re:
I know someone who works for the nsa of all places, and he's a really nice human being with a strong conscience. He also sits in a cubicle all day programming. He's about as far removed from actual policy decisions as the rest of us. (Maybe more so because he can't necessarily criticize his workplace in public.)

That doesn't make me love the nsa, though.
[ link to this | view in thread ]
Anonymous Coward, 17 May 2012 @ 11:03pm

Re: Re: just dont
And that case was dismissed two weeks after that story.

http://www.theagitator.com/2011/09/17/illinois-judge-dismisses-charges-against-michael-all ison/
[ link to this | view in thread ]
Joe, 19 May 2012 @ 5:10am

Re:
Uhm, you do realize that some are blatantly and overtly against the morality that the US bill of rights represents, right? Yeah, they're the minority but don't white wash the entire department with the majority. Because there really are some that abuse whatever power they get, as quickly as they can get it. Even power that technically they are not supposed to have. Think of people like that as being like hackers for civil rights and society - in other words 'social engineers' or 'con artists'.
[ link to this | view in thread ]
Joe, 19 May 2012 @ 5:16am

Re: Caring for this country
You're confusing a 'lone gunmen' (TM) with people who do this as a group because 'everyone else was doing it' (TM). It's like the difference between a race-motivated arson of a local school, and the pogroms of 1924.
[ link to this | view in thread ]
Joe, 19 May 2012 @ 5:23am

Re: Re: Re: Re: Re: Send DOJ to IL to help this guy!
Putting someone in jail for upto 75 years (really, life/death penalty) doesn't exactly help the police's case in the public's eye. You can't have your cake and eat it too. You can have fear with unlimited power, or respect with reasonable power but not respect with unlimited power. I'd expect all sorts of retaliation against the nutjobs who abused their power that way but we're talking Chicago's state. Home of some of the most ruthless and corrupt politicians in the nation.

BTW: http://www.techdirt.com/articles/20120509/16490418853/federal-appeals-court-rejects-illinois-eavesdr opping-law-as-likely-violating-first-amendment.shtml
[ link to this | view in thread ]
Joe, 19 May 2012 @ 5:25am

Re: Re: Re: Send DOJ to IL to help this guy!
Yes, illegal law is oxymoron. It's not illegal (from Illinois' POV) but it is illegal from the US's POV. Heck, probably from the state's own constitution as well depending on how you read it.
[ link to this | view in thread ]
btr1701 (profile), 19 May 2012 @ 11:15pm

Re: Re: Re: Re: Send DOJ to IL to help this guy!
> In the story linked about the man in Illinois, he was actually
> breaking the state's wiretapping laws

The DOJ has taken the position that photographing and recording the cops is protected by the US Constitution, which is the supreme law of the land. Any local law which violates that is no law at all.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2012 @ 8:55pm

letter from the DOJ reminding them that stopping people from filming law enforcement violates the Constitution

The DOJ doesn't decide if it violates the constitution, what they are really rendering is an opinion, only the Supreme Court can decide if it violates the US Constitution, that is the case that matters, when they decide on it, then it will become law, and then all other states law will be null and void
[ link to this | view in thread ]
Paul Alan Levy (profile), 30 May 2012 @ 8:20am

DoJ unit pursuing this issue
The letter comes from a lawyer in the Civil Rights Division, which, among many other duties,pursues issues of police misconduct. These cases are among the hardest that Justice Department lawyers do, because they involve taking on police officers who generally enjoy huge reserves of public support in the local areas where the cases are pursued. And juries don't often side with the federal government against local police officers. The lawyers who do this work are incredibly dedicated; thank goodness they are there.
[ link to this | view in thread ]