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ACLU sues Baltimore police over Preakness video

Inside Christopher Sharp’s Samsung Eternity smartphone was a digital scrapbook that could have been titled “Proud Father.”

Sharp, 38, of Owings Mills, had videos of his 5-year-old son “Joshy” at the beach, at the Howard County Fair and at his soccer and basketball games. But more than a year’s worth of memories were erased in one fell swoop after he dared to record Baltimore police officers making an arrest at the 2010 Preakness Stakes.

The American Civil Liberties Union of Maryland filed suit Wednesday against the Baltimore Police Department on behalf of Sharp, saying three officers clearly violated Sharp’s constitutional rights when they seized his phone and deleted all its videos.

“Police officers doing their jobs in a public place are accountable to the public they serve, and camera phones have become an important accountability tool,” ACLU Legal Director Deborah Jeon said in a statement released by her organization. “It is antithetical to a democracy for the government to tell its citizens that they do not have the right to record what government officials say or do or how they behave in public.”

Police Department spokesman Anthony Guglielmi said it was the department’s policy not to comment on pending litigation.

The lawsuit, filed in Baltimore City Circuit Court, contends that Sharp’s case is part of a larger pattern of Baltimore police unlawfully stopping, seizing or destroying recordings of their public actions.

The suit outlines six incidents since February 2008 in which citizens allegedly were threatened for recording police in a public place, or ordered to turn over their recordings. One of the six stemmed from another citizen’s recording of the same incident that led to Sharp’s lawsuit — the May 15, 2010, arrest of Sharp’s friend, Anna Chyzhova, in the clubhouse at the Pimlico Race Course.

In the video, which has been posted on YouTube, Chyzhova can be seen lying face-down on the ground while three police officers restrain and search her. When the person taking the video questions the level of force employed, another officer approaches and asks him to turn off his camera, saying, “It’s illegal for you to tape anybody’s voice or anything else — it’s against the law in the state of Maryland.”

The ACLU lawsuit says police often use that argument and that it stems from a misinterpretation of the Maryland Wiretap Act. Under the act, all parties must give their permission for someone to legally record “any conversation or words spoken to or by a person in private conversation.”

But Jeon said previous court decisions have held that police have no reasonable expectation of privacy when making arrests in public. Last year in Harford County Circuit Court, the ACLU successfully defended motorcyclist Anthony Graber when he was charged with violating the wiretap law after he recorded a traffic stop and posted the video on YouTube.

“This has been a longstanding problem,” Jeon said. “We had hoped that with the resolution of the Graber case that things would really change. But these incidents have continued.”

In an interview Wednesday, Sharp said he was approached by two police officers in the Pimlico clubhouse after he recorded Chyzhova’s arrest and told to hand over his camera. He refused, until a third officer, who identified himself as a sergeant, came over and more gently told him the officers needed the video for evidence.

“He just seemed so assuring,” Sharp said. “The guy looked me right in the eyes and I’m pretty good at reading people. For some reason I thought I could trust him.”

But when the sergeant returned with Sharp’s phone minutes later it had been wiped clean — no photos, no videos, no contact numbers.

Sharp said it was a particularly difficult experience because he had been brought up to trust police officers, who he said generally do a “difficult and often thankless job.” But he said his faith was particularly shaken by the way the officers worked together.

“The way they all worked in unity, like it was just a regular procedure for them — that’s bad,” Sharp said. “I couldn’t just discount it as one bad apple. These officers … were all on the same page.”

The suit includes counts for invasion of privacy, false imprisonment and several violations of free speech and Fifth Amendment rights. It also names Police Commissioner Frederick H. Bealefeld III and the three unknown officers who confronted Sharp as defendants.

Jeon said her office sent the Baltimore Police Department a letter three weeks ago to inform it of the impending suit and ask it to change its policy on confiscating recording devices. She said she received no response.