Despite the new rules, Baltimore police are still seeking to dismiss the federal civil lawsuit filed by Christopher Sharp, who said his camera was taken and pictures deleted at Pimlico Race Track in May 2010.
Sharp said he used his Samsung Eternity cellphone to record officers arresting a female acquaintance and one of his friends during a scuffle outside a betting window after the day's races had concluded. During the assault trial of his friend, who was acquitted, Sharp testified that a sergeant demanded his phone, saying the images were needed evidence.
"I at first refused," Sharp testified. "I did not think they had that right to take my phone. They insisted that they did have that right, it was evidence. I had to turn it over, they had to view it. … I kept arguing with them that they did not have a right. I realize, no matter what I did, I wasn't going to win."
On Monday, a judge is to determine whether the suit can proceed. Last month, the U.S. Department of Justice's Civil Rights Division filed court documents urging the judge to side with Sharp, saying the case "presents constitutional questions of great moment in this digital age."
The Justice Department said citizens need to be protected from warrantless searches and seizures, and that they have the right to "record police officers while performing duties in a public place."
Grimes, the police attorney, said the new general order is designed to address those issues, and he noted that the directives have been emailed to officers, taught in training, described in daily roll calls and put into writing.
Grimes said he provided the U.S. District Court with a copy of the general order, and court documents filed by the city in the Preakness case say the department has adequately remedied the issue. In one document, Grimes wrote that he tried, but failed, to work with the American Civil Liberties Union to draft the policy "to possibly quell the need for litigation."
The ACLU, which represents Sharp, said the department didn't offer enough time to review the proposals. The organization says in court papers that Grimes wouldn't provide the group with a final copy of the order, issued in November, unless officials agreed to sign a nondisclosure form, which it refused to do.
A Police Department spokesman said officials wanted to wait until now to release the order publicly so officers could be trained in the new directive.
Deborah A. Jeon, an attorney for the Maryland chapter of the ACLU, said she could not immediately offer an evaluation of the order. But she said her organization "is pleased that the police now finally seem to be conceding that the policy is one the public has a right to know about."
The city lawyer would not address specifics of Monday's case, but cautioned that he can present a "good argument in the courtroom" on why Sharp should lose his case. He said he will still push for a dismissal.
Said Grimes: "Despite what happened with Sharp, citizens are better off because a policy has been issued, regardless of the outcome of an individual lawsuit."
The city's attorneys argue in court documents that Sharp and his ACLU lawyers failed to prove that authorities misapplied Maryland's wiretap law and that he voluntarily handed over his phone.
"The inescapable reality for [Sharp] is that he consented to the viewing of the alleged footage on his phone, whether reluctantly or not, [and] he cannot sustain a constitutional violation claim against the [police]," according to those documents. Sharp was not arrested during the encounter.
Jeon said Sharp surrendered his phone after being surrounded by police officers and only because he felt his arrest was imminent. She said a sergeant assured him that police would copy the relevant videos and return the phone to him, but when he got it back, all his videos, including personal ones, were gone.
Police photo, video policy
Upon discovery that a bystander is observing, photographing, or video recording the conduct of police activity:
1. DO NOT impede or prevent the bystander's ability to continue doing so based solely on your discovery of his/her presence.
2. DO NOT seize or otherwise demand to take possession of any camera or video recording device the bystander may possess based solely on your discovery of his/her presence.
3. DO NOT demand to review, manipulate, or erase any images or video recording captured by the bystander based solely on your discovery of his/her presence.
4. For investigative purposes, be mindful of the potential that the bystander may witness, or capture images/video of events considered at some later time to be material evidence.
5. BEFORE taking any police action which would stop a bystander from observing, photographing, or video recording the conduct of police activity, Officer(s) must have observed the bystander committing some act [deemed criminal, such as obstruction, disorderly conduct or interfering with an officer's lawful duties].
Source: Baltimore Police Department General Order J-16