The federal attorneys say the lawsuit "presents constitutional questions of great moment in this digital age." They asked U.S. District Judge Benson Everett Legg to rule that citizens have a right to record police officers and that officers who seize and destroy recordings without a warrant or due process are violating the Fourth and 14th amendments.
American Civil Liberties Union of Maryland, which is representing the plaintiff, Christopher Sharp, said it believes this is the first time the Department of Justice has weighed in on the topic of recording police.
"The right to record police officers while performing duties in a public place as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution," Justice Department attorneys wrote in a "statement of interest" filed Jan. 10 in the case. "They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily."
The ACLU says officers stopped Sharp and erased his videos, including many of his young son, after he declined to surrender his cellphone as "evidence." He had been recording a May 2010 incident involving a friend, Anna Chyzhova, who was arrested for striking a patron at a ticket window at Pimlico Race Track.
The group had said a lawsuit could have been avoided if police worked to develop clearer policies and acknowledged that Sharp should have been able to record the incident. But the Police Department did not respond to that request, prompting the suit in August 2011.
In a November motion to dismiss the suit, the Police Department said the claims made by Sharp and his attorneys were moot because the department had voluntarily developed training protocols for officers and sergeants and emailed instructions to officers. It said there was "no reasonable expectation that the violations alleged by the plaintiff will reoccur."
But the Justice Department said those measures were not sufficient.
"At minimum, defendants should develop a comprehensive policy that specifically addresses individual's First Amendment right to observe and record officer conduct," attorneys wrote. "Morever, BPD should track allegations that an officer has interfered with a citizen's First Amendment right to observe and/or record the public performance of public duties."
Police also said that Sharp was asked to leave the racetrack, voluntarily handed over his phone and cannot prove that the unidentified police officer intentionally deleted his videos. They dispute that what happened to Sharp constitutes a pattern within the Police Department and say their attempts at reform are sufficient.
"The BPD is, to my knowledge, among a select few police departments in the nation that have promulgated a general order regarding the issue of video recording police activity," wrote Deputy Commissioner John P. Skinner in a Nov. 14 sworn statement.
The issue of recording police garnered attention in 2010 when a motorcyclist, Anthony Graber, was charged in Harford County with videotaping — on a helmet-mounted camera — his interaction with a state trooper who had pulled him over at gunpoint for speeding.
Harford County prosecutors filed charges against Graber, and state police raided his home after the video was posted on YouTube. The ACLU successfully defended Graber against criminal charges related to the taping, and the case sparked debate about Maryland's strict wiretapping laws and issues of recording law enforcement officers in public places.
The Maryland attorney general's office later issued an opinion advising police agencies that people have a right to record officers and that most interactions between police and the public cannot be considered private.
Deborah A. Jeon, legal director for the ACLU of Maryland, said in an email that the Justice Department's filing in the Sharp case indicates an intention to monitor the case as it moves forward.
"The opinion of the Justice Department's Civil Rights Division matters very much, and the decision to offer this opinion in a private police practices case is quite extraordinary, particularly at the trial level," Jeon said in an email. "The fact that they have done so here reflects the importance of the issue, and the current administration's commitment to civil rights in this area."