Federal Government Argues That Americans Have A Constitutional Right to Record the Police in Public

The Justice Department is urging a court to affirm individuals’ rights to record police under the First Amendment, filing a statement of interest in support of a journalist suing over his arrest while photographing Maryland officers.

In the statement filed this week in a federal court in Maryland, the Justice Department argues that not only do individuals have a First Amendment right to record officers publicly doing their duties, they also have Fourth and 14th Amendment rights protecting them from having those recordings seized without a warrant or due process. The DOJ urges the court to uphold these rights and to reject a motion to dismiss from Montgomery Co. in Garcia v. Montgomery Co., a case that has implications for an increasing crop of litigation on the subject in the era of ubiquitous smartphones.

“The United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights. … Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges,” wrote the DOJ Civil Rights Division.

In June 2011, Mannie Garcia, a White House and Senate-credentialed photojournalist, took pictures of two police officers from the Montgomery County Police Department as they were arresting two men, concerned that they might be using excessive force. According to the complaint, he began taking pictures from 30 feet away, then moved back to 100 feet after police shined a spotlight at him. The only interaction Garcia had with the officers was declaring he was a member of the press and he was only in possession of a camera.

The complaint states that police placed dragged Garcia to the police car, put him in handcuffs, threw him to the ground by kicking his feet out from under him, taunted him, threatened to arrest his wife if she came too close and took his camera. While they had his camera, he saw police take out the battery and video card, the latter of which he said was never returned. The complaint also denies that Garcia in any way resisted arrest.

In December 2011, Garcia was acquitted of disorderly conduct during a bench trial, and he subsequently filed a lawsuit against the officers and department.

The Justice Department, echoing its position in another recent case,  Sharp v. Baltimore City Police Dept., et al.,  filed January 2012, urges the court to affirm individuals’ right to record police.

“Both the location of Mr. Garcia’s photography, a public street, and the content of his photography, speech alleging government misconduct, lie at the center of the First Amendment,” the DOJ representatives wrote.

Additionally, while Garcia is a White House –credentialed journalist and alleges in his lawsuit that the county violated its policy toward the press during his arrest, Justice argues his status as a journalist has no bearing on his First Amendment rights. Both as a member of the press and as a member of the public, they argue, Garcia has a fundamental right to do what he did.

Justice’s filing touches on a trend of cases nationwide. As personal recording equipment becomes more common in the era of smartphones and tablets, police-recording cases have cropped up around the country.

In Illinois, the American Civil Liberties Union recently won a challenge to a state law banning recording individuals without both parties’ consent, with a federal judge issuing a permanent ban on enforcing the law in regards to publicly recording officers after the Supreme Court declined to hear a challenge in the case.

In Washington, D.C., the police department last summer issued an order that its officers not interfere with people recording their public duties, echoing a similar memo issued by the city of Philadelphia, where another lawsuit has been filed challenging the arrest of a man who recorded police with his cellphone.

Federal appellate courts have upheld a First Amendment right to record police in cases including Glik v. Cunniffe in 2011, Smith v. Cummings in 2000 and Fordyce v. City of Seattlein 1995, all of which Justice cites in its statement in the Garcia case.