DOJ Weighs In On Police Taping Case

-Submitted by David Drumm (Nal), Guest Blogger

In May 2010, Christopher Sharp used his cell phone camera to record Baltimore City Police officers arrest and beat a female acquaintance at the Plimlico Race Course. The officers detained Sharp, seized his cell phone, and returned it later with all his videos deleted, including videos of his young son at sports events. Sharp filed a complaint in the Circuit Court for Baltimore City Maryland which was later moved the United States District Court for the district of Maryland.

The United States Department of Justice has decided to get involved, on the side of Sharp.

The DOJ filed a Statement of Interest of the United States with the District Court. The statement starts off with a bang:

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 DOJ statement claims that the First Amendment protects the recording of police officers performing their duties in public. The statement cites the case of Glik v. Cunniffe (2011) wherein the United States Court of Appeals for the First Circuit held that the First Amendment “unambiguously” protects the right to videotape police carrying out their duties in public.

The DOJ statement also notes that in Roaden v. Kentucky (1973), the United States Supreme Court found that material that is protected under the First Amendment and is seized by a police officer, “without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.” The United States Court of Appeals for the Fourth District, in Altman v. City of High Point North Carolina (2003) wrote that “[a] seizure of personal property conducted without a warrant is presumptively unreasonable.”

The DOJ statement argues that the seizure and destruction of Sharp’s property without due process is prohibited by the Fourteenth Amendment. In the case of Mathews v. Eldridge (1976), the United States Supreme Court wrote that the “right to be heard before being condemned to suffer grievous loss of any kind … is a principle basic to our society.” Lofty words, frequently forgotten.

While it’s about time the DOJ started weighting in on these violations of a citizen’s constitutional rights, unless punishments are meted out to the officers involved, nothing will change. As long as officers can get away with this unconstitutional activity, the activity will continue. This is not an issue of training, it is an issue of discipline.

If the DOJ is sincere about their desire to prevent these constitutional abuses from continuing, they should bring charges against the officers for violation of 18 U.S. Code – Section 242, Deprivation of rights under color of law.

H/T: The Agitator, The Baltimore Sun, National Press Photographers Association, ACLU of Maryland, Simple Justice.

28 thoughts on “DOJ Weighs In On Police Taping Case”

  1. AY,
    We will have to see what transpires, but I am less concerned with that issue than getting them to act in the first place.

  2. raff,

    Then if they lose…Will they selectively enforce the prosecution of the law? Watching on the sidelines is one thing…Putting both feet in the well might pull them under…So far the DOJ’s record is not very promising…Just my two cents worth…

  3. AY,
    I do think that the DOJ will follow up on their own, if for no other reason than the political ones I mentioned above. However, I do not think the attorneys in the DOJ would have any problem prosecuting laws that they do not agree with. They have a boss and a job to lose if they don’t follow the policy set up by their boss no matter what was done in the past.

  4. “Without making this political …” (Mike S)

    I read your entire post and agree with your assessment that is well based in your years of experience but I will differ on one small point in that it is also very much political for Obama.

    He is building his re-election claims (bin Laden dead, war in Iraq over, war in Afghanistan over [negotiations well underway as we speak], economy improving, increased monthly payments to Social Security recipients, errant cops brought to task [extremely important to his minority base], etc.). Look for news regarding Guantanamo, followed by additional tax breaks for the middle class … all timed perfectly. I’ll be interested in how he handles the hot potato that is Wall Street/Big Banks but there will be something. The only thing he won’t do is go after the torturers as the National polling on that subject is not at all in agreement with the opinions held by the majority (myself included) on this blog.

    Admittedly I’m a cynic when it comes to the motivations of politicians like Obama … but that cynicism is also well grounded in experience.

    1. Right on Blouise. I agree. I am perpetually cynical where any politician is concerned.

      I also agree with your statement. Having worked in a smaller beaurocracy in a lower Supervisory capacity; I have experienced the political railroading; the actions taken by underlings in the name of a Manager who was unaware and kept that way by the hesitancy of staff to question anything that came in their name. It is a culture of back-biting; power grubbing; wiesels with emmence delusions of Grandeur.

      Present company excepted of course. Seriously though; I found it a difficult environment for one such as I and I was not alone. Many of the Staff a various levels would try to make positive changes only to be thwarted by mealy mouthed; ass kissing; minor tyrants whose only goal was self agrandizement.

      Doing the right thing takes more than many of these people can or will give when all they meet is resistance.

      And this; aside from the puposeful sabotage you are desribing. It is a system in terrible crisis.

  5. Without making this political, let me introduce a possible answer as to why the DOJ hasn’t acted sooner. I was a Civil Servant for 32 years.I held the highest titles possible due to great marks on Civil Service exams and towards the end of my career held the all-important Civil Service Manager Title, after passing that infrequently given exam. Most Managers were what was known as “provisionals” meaning they were appointed politically. Managers were the wielders of power within Agency’s of the NYC government. Those with Civil Service status such as myself could only be fired for gross incompetency or malfeasance.

    Since I had Civil Service status, with many years tenure, I could afford to act in what I believed to be an ethical/legal manner without threat of serious retribution. In many instances I was able to thwart some patently political and corrupt decisions, that had been ordered from the offices of the Mayor. Now some of these the Mayor probably knew nothing about, yet some corrupt underling might have done it in the Mayor’s name. Sometimes these things were at the Agency level and supposedly represented the will of the Agency
    Commissioner. However, in an Agency with 14,000 people it is impossible for any Commissioner to keep track of all that is done in their name.

    In 2002 the U.S. DOJ had 129,679 employees and a budget of more than $20 billion. . I imagine it has grown since then. We know that the Bush/Cheney administration “salted”
    most government agencies with ultra-conservative supporters, put into Civil Service positions, where they simply couldn’t be fired by the next Administration. How many Regent University trained lawyers could have solid, high level DOJ jobs today, many affecting prosecutions and policy? If I could affect policy in an Agency one tenth the size of the DOJ, without any political connections at all, what have these Bush/Cheney “sleeper” agents been doing?

  6. Imagine that; Baltimore Cops beating a helpless suspect or prisoner. Hm.

    In my humble opinion; Chief is correct.

    The DOJ is doing the right thing. (we could hope for a quicker response)

    The 1st amendment issue is of couse valid but so is the random beatings meeted out by the BPD.

    I havn’t found any details as to the “reason” for the Police action so if anyone can shed some light; it would certainly help.

    I don’t doubt the Police guilt but then again with no available evidence as to the nature of the assault; I hesitate to committ.

    I will say as I have said before that BPD has a reputation for brutality.

    It looks like the 1st amendment issue has overshadowed the arrest and beating; or I may just need to dig more.

  7. Chief is right. Two crimes were committed: one against the person being beaten by the police and the confiscation of the evidence of the crime. Far too often the police are out of control. Cell phones and other electronic devices seem to me to be a good way to help keep them in line. Of course, as stated above, prosecutions of offending officers is also necessary. Public shaming on youtube just isn’t enough.

  8. raff,

    You’re a trained attorney, right? Do you not see a conflict? This in my opinion has conflicts written all over it…

    Suppose they loose….will they then be able to prosecute the same type of case…I am not talking about alternative theory’s plead in a case…I am talking about actual conflicts….


    Could you please elaborate on this? “but wouldn’t a ruling in this case favorable to Mr. Sharp and his camera work give both citizens and the DOJ far firmer ground to prosecute such cases going forward?”

  9. “This is not an issue of training, it is an issue of discipline.” (DD) … spot on

    “wouldn’t a ruling in this case favorable to Mr. Sharp and his camera work give both citizens and the DOJ far firmer ground to prosecute such cases going forward?” (rcampbell)

    I believe rcampbell is correct and in choosing this particular case which is complete with stealing Sharp’s property, the vids of his son being erased, the chances of a favorable ruling from the court are strong. Sometimes there is wisdom is determining the proper time to act.

  10. rcampbell,

    That was my question….They are playing both sides of the street…..unless there are plans in place for Holder to go after this case reaches a conclusion…..

    The Southern Poverty Law Center with all of its pocks would be a better choice…

  11. It would rcampbel, but there have been other cases and instances of citizens being arrested and their camera and pictures being confiscated by the police. I am glad that the DOJ is doing something, but we also needed them to act earlier.

  12. raff

    I can’t answer your entirely appropriate question of “where were they when…” in the past. I am not certain why the DOJ selected this case as opposed to any others, but wouldn’t a ruling in this case favorable to Mr. Sharp and his camera work give both citizens and the DOJ far firmer ground to prosecute such cases going forward?

  13. You could be right Mike about the Obama DOJ. I applaud their efforts here, but where was Holder when it comes to going after the torture crowd or the mass arrests of lawful protestors. They need to do a lot more in a hurry for me to get excited about the DOJ.

  14. The DOJ getting involved concerns me knowing the current record on Civil Rights…..Now if the ACLU or some other public interest group became involved I would not have my suspicions….

  15. Nice job David. Seriously though, have we reached the point where from a Civil
    Liberties perspective Obama’s DOJ can do nothing right, even when they do something right?

  16. Chief,
    I guess your class forget to read the last paragraph of David’s article. He calls for the DOJ to arrest the officer in question.
    Great job David. This issue really gets my blood boiling. If citizens do not have the right to photograph the police and authorities in public, then how do the police have the right to do the same to us via street cameras and undercover agents at rallies and even drones? It is about time the DOJ grew a pair. I wonder if the upcoming election had anything to do with the DOJ’s sudden bravery?

  17. The Department of Justice should weigh in on some one else’s constitutional rights in this instance and that is the person who was beaten. This was destruction of evidence of a crime committed by the cops and in furtherance of that crime. They talked about it and conspired to violate the civil rights of the person beaten. The government of the United States could prosecute these cops but they choose to weigh in on the First Amendment rights of the person who video taped the event. That is fine but the DOJ has not done its job. The Group I represent is meeting today to discuss cameras in the hallway of our school and will take this matter up. I would hope that the adult bloggers will look at the big picture here and not just get intwined in the First Amendment aspects. In that regard, 1st Amendment, the person who photographs has a right to petition his/her government for redress of grievances (safe streets from pigs) and the interference with that right gives this person 1st Amendment legs on three pillars of the 1st: right to speak, right to assemble, right to petition one’s government and speak to the assembled, and right to arm bears. Query: what one was I wrong about?

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