Baltimore police use loophole to threaten man with arrest for videotaping them

The Baltimore Sun | NPPA
Technically, the Sun notes, Baltimore police didn’t threaten Scott Cover with arrest over the weekend for videotaping them as they stood on a sidewalk over a handcuffed man. No, they did it because they said he was loitering, and he apparently didn’t walk away quickly enough when they told him to leave. (He walked backward, videotaping the entire time.) The incident occurred about a day after the police department instructed its officers not to arrest people simply for photographing or videotaping them. But that new policy also says that people can’t violate any laws, such as the ban on loitering. With that exception, the Maryland ACLU says, the new policy really hasn’t changed police practices. In a letter to Baltimore police protesting the police interference, NPPA general counsel Mickey Osterreicher writes that Cover wasn’t loitering because he wasn’t breaking any law or disrupting the peace. (His letter is below.) Something similar has happened in New York, where police have interfered with and arrested photographers even after the police commissioner told them not to. || Related: How journalists can protect themselves & the news they’ve gathered if arrested on the job (Poynter)

Correction: This post originally stated that Cover was arrested, but he was only threatened with arrest.

Osterreicher’s letter to the Baltimore police commissioner

February 14, 2012
Commissioner Frederick H. Bealefeld III
Baltimore Police Department
242 W. 29th Street Baltimore, MD 21211-2908

RE: General Order J-16 Video Recording of Police Activity

Dear Commissioner Bealefeld,

As general counsel for the National Press Photographers Association (NPPA) I have just been made aware of an incident that occurred on February 11, 2012 involving Baltimore Police officers who allegedly interfered with Scott Cover as he recorded the arrest of a young man on a Baltimore City street. As can be seen on the recording of the incident, when one of the officers noticed Mr. Cover videotaping from across the street, she immediately approached him in an aggressive manner with handcuffs at the ready and ordered him to leave the area.

What is even more disturbing is that this incident took place less than 24 hours after your department released General Order J-16 (dated Nov. 8, 2011), ensuring “the protection and preservation of every person’s Constitutional rights.” That order, related to the “video recording of police activity,” also states “no member of the Baltimore Police Department may prevent or prohibit any person’s ability to observe, photograph, and/or make a video recording (with or without a simultaneous audio recording) of police activity that occurs in the public domain, so long as the person’s location, actions, and/or behavior do not create a legitimate, articulable threat to Officer safety, or an unlawful hindrance to successful resolution of the police activity.”

According to press reports Mr. Cover was told by officers that “he was loitering, and that he had to move along or risk arrest.” This action by your officers appears to be in direct contravention of both the letter and spirit of a policy that was just implemented in order to preempt a lawsuit against your department for flagrant violations of citizens’ constitutional rights to observe and record police activity in public. Your own spokesman said, “The department waited until the process of informing and training officers was complete before releasing the November order,” but it seems that time may have been spent training officers how to circumvent the policy rather than follow it. Article 19 Section 25-2 of the Code of Public Laws of Baltimore City defines “loiter” as “to stand around or remain . . . at a public place or place open to the public and to engage in any conduct prohibited under this law.” Additionally, “It shall be unlawful for any person to loiter at a public place or place open to the public and to fail to obey the direction of a uniformed police officer . . . when not to obey such direction shall endanger the public peace” (emphasis added).

Aside from the fact that Mr. Cover was not endangering that peace by his self-evidently lawful actions, the code also provides a limitation on the “scope” of the police ordinance in §25-(c)(2) which states, “Nothing herein shall be construed to prohibit orderly picketing or other lawful assembly.” Accordingly, there is no more lawful assembly than the exercise of one’s First Amendment rights, which your seven (7) page Order was presumably implemented to protect.

That General Order “requiring” certain “action” during “routine encounters with the general public” states that “upon discovery that a bystander is observing, photographing, or video recording the conduct of police activity: DO NOT impede or prevent the bystander’s ability to continue doing so based solely on your discovery of his/her presence.” “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 that falls within one of the six numbered conditions listed in . . . this Order . . . ” (emphasis in the originals). And despite the fact that Mr. Cover did nothing more than record on a city street your supervisory officer orders him to move under threat of arrest.

As our organization, founded in 1946 with over 7,000 members, has pointed out to numerous groups and law enforcement agencies, photography by itself is not a suspicious activity. Contrary to the training that was ostensibly provided over the three (3) months since the Order was implemented, it appears that the message is not being received or followed. The continued actions by your officers to question, detain, interfere with and threaten to arrest someone engaged in a lawful activity under color of law is reprehensible. At best, behavior that chills free speech in contravention of your General Order violates department policy, at worst it is criminal.

While it may be understandable that your officers had a heightened sense of awareness during this incident, that is still no excuse for them to not recognize a citizen’s right to record a matter of public concern occurring in a public place. Law enforcement agencies are established to uphold and enforce existing laws not to use them as a pretext to punish someone exercising their free speech right to take photographs/videotape in public. This activity is protected by the First Amendment and may not be restricted by officers wishing to avoid the documentation of their actions. This is just the most recent incident in a rash of similar police abuses across the country.

NPPA stands ready to work with your department, the ACLU and the Court to assist in developing reasonable and workable policies and practices in order to avoid similar situations. In the meantime we would respectfully request that this incident be fully investigated and disciplinary action taken against the officers involved should that be indicated.

Thank you for your attention in this matter. I look forward to your response. Very truly yours,

Mickey H. Osterreicher

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  • Anonymous

    No longer active, but had many years in int’l drug enforcement where I was videotaped and my movements watched.  I also fought municipal police corruption.   I had many dangerous people threaten my life.  I have been accused of  crimes and have been sued by my enemies.  All claims were proven false.  My personal behavior was and is beyond reproach. 

    Having some media “watchdog” follow police while off duty only adds to the dangers of the job.  What is the “Press” value of videotaping a policemen spending time with his family or going about normal duties of living a good life?  What is does do it show where that policemen spends his time and where he goes.  It shows where his kids play and where his wife travels.  It shows what businesses he patronages.  There is no “Press” value in this information.  The “Press” are not cops.  Their job is to report news, not make it.   If they suspect wrong doing, then report is and let the professionals deal with it.

    The test the “Press” should apply is the Golden Rule.  Does the “Press” who holds the camera want the same exposure of their life?  Freedom of the Press also apply to those who dislike the Press.  Many in the Press need to clean up their own act before trying to find dirt of others.

  • Blanche Starbong

    How long have you been a cop? And what are you trying to hide?

  • Paul Simon

    RBruce20 seems to believe in police can do whatever they so choose. Very scary. Contrary to what seems to be occurring all to often, ours is not a police state. It is a free society.

  • Anonymous

    There are legitimate concerns involved here. Absolutely. We are finding our way in a time when recording devices are now ubiquitous. 

    The police in this clip were obviously out to harass this man for having the nerve to do what he is permitted to by law. He was not at all on top of the officers or in their faces; he even began to leae when they intimidated him into doing so, even though they had no right. Some cops hate nothing more than a citizen who knows his rights. They are an embarassment to their profession. Good officers I know hate ones like this that make them look bad.
    Like everyone else, police must be accountable for their actions. That they don’t get a pass on following the law because they wear a badge shouldn’t need to be said. Recording actions by public servants in public places is a check on misconduct. It shouldn’t be news that many officers abuse their authority. Without video evidence, abusers can get away with beatings or worse. Witness the women protesting at Wall Street who were pepper-sprayed for no good reason while acting lawfully. Witness the deliberate effort by police to block even credentialed media from recording protesters — and the actions of police. At the same time, police officers have nefitted from dashboard cams and other recordings that have disproved false allegations of abuse.

    Forbidding citizens from using the technology they carry around every day from practicing their rights is nothing but an invitation to state-sponsored thuggery. Also, police and other government institutions do record people and press in public all of the time. That’s not even to mention the cameras placed in every nook and cranny of major cities.

  • Anonymous

    There is no “right” to endanger the police or interfere with crime control or misuse the protected freedom of the Press.  Remote recording of an area is not intrusive, but having a person taping near the police does influence behavior and actions.  In most cases, the camera makes the situation worse.  Police lose descretion when on camera.  Excessive filming of police does endanger their personal lives and the lives of their families.  If this “videoing” trend continues, police will be forced to wear masks and become more secretive.  The Press may have a right to video police, but their will be consequences that the Press dislikes but will no one else to blame but themselves.

  • Anonymous

    Every citizen, “official” media or no, has the right to videotape the actions of public servants in public places. To embrace the suppression of that right is to embrace a police state. Actually stepping in the way of police activity would be another matter, but that is not the issue.

  • Anonymous

    Every citizen, “official” media or no, has the right to videotape the actions of public servants in public places. To embrace the suppression of that right is to embrace a police state. Actually stepping in the way of police activity would be another matter, but that is not the issue.

  • Anonymous

    Videotaping police for no other reason than to interfere with their lives is disgraceful and a misuse of the special protection the Press has.  The Police should turn the tables and videotape everyone at the Baltimore Sun whenever they are in the “public domain” and see how they enjoy the attention.