Mobile devices, with their increasingly advanced video and photo recording abilities, have recently played central roles in social movements across the world.  From California to Cairo, the cameras built into cell phones and tablets help to humanize the chaos associated with protests by bearing witness to first person emotion in ways that the printed word often cannot.  Relatedly, personal video helps to document instances of police brutality and other questionable or illegal law enforcement tactics.  This use of user-generated video is not new.  What is new are the pervasiveness of these devices and their ease of use for more pedestrian and everyday interactions with law enforcement.

A case making its way through the District of Maryland, Sharp v. Baltimore City Police Department, examines the rights that private citizens have to record interactions with police and to keep the recorded authorities from taking the device and deleting the files.  The plaintiff, Christopher Sharp, claims that a police officer took the cell phone he used to record an allegedly violent arrest of a friend and deleted the video and other files.  Sharp claims that the police violated the First, Fourth, and Fourteenth Amendments.

Recently, the Department of Justice chimed in to support Sharp’s positions.  The ACLU, which is providing representation to Sharp, claims that this is the first time the DOJ has spoken on these particular issues.  The brief (PDF) notes that it is almost beyond argument that the First Amendment protects the right to record police officers in public.  Moreover, it argues that the taking of the cell phone itself violated Sharp’s Fourth Amendment rights.  Lastly, and perhaps most interestingly, it argues that the deletion of the videos off Sharp’s cell phone violates his Fourteenth Amendment right to due process.

The brief serves to underscore that the federal government has taken notice of the case and the important issues involved.  Since the stance presumably applies to federal authorities like the FBI and ATF, it helps to telegraph the DOJ’s thinking in other potentially similar cases.  More generally, the case, regardless of how it is decided will help to clarify to citizens what their rights are in situations where they film the police and have their recordings taken from them.  Similarly and equally important, the case could help to clarify to enforcement personnel what actions they can and cannot take under stressful moments while on the job.

A decision in favor of the plaintiff will help to prospectively protect citizens who fear retaliation from policy for filming them.  Moreover, protecting the right to film and to maintain that video may deter some police who act in bad faith, while protecting others who act within the bounds of their important authority.

David Rutenberg

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