The Rhode Island ACLU has called on police departments in the state to adopt clear policies recognizing the First Amendment right of members of the public to video and tape record police activity. In a letter sent to police chiefs in Rhode Island, the ACLU noted recent developments in the law that made adoption of such a policy an important way to ensure that police officers are aware of, and do not violate, the free speech rights of residents.
Last year, the U.S. Court of Appeals for the First Circuit, which has jurisdiction over Rhode Island, issued an important ruling confirming the public’s right to video or tape record the conduct of law enforcement officers engaged in their official duties. That case arose when a Massachusetts resident was charged with disturbing the peace and other offenses for recording with his cell phone the arrest of a young man on Boston Common. More recently, the U.S. Department of Justice’s Civil Rights Division issued a guidance letter, in the context of a similar lawsuit pending in Baltimore, addressing many of the issues raised by that court decision. The DOJ guidance letter emphasizes the usefulness to police of adopting appropriate policy and training requirements on this issue in order to prevent constitutional violations.
Although the ACLU is not aware of any recent unlawful arrests in Rhode Island of individuals for recording police activity, the letter to police chiefs encouraged the adoption of formal police department policies to avoid the problematic arrests that have occurred elsewhere.
Among other things, the DOJ’s detailed guidance letter, which the ACLU provided to the police departments, encourages the adoption of police department policies that: affirmatively set forth the First Amendment right of members of the public to record police activity; describe the range of prohibited responses by police to individuals observing or recording police activity; provide clear guidance on supervisory review; and describe and define the limited circumstances when police may lawfully seize recording devices or deem an individual’s conduct to interfere with police duties.
