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ACLU suit over Preakness video survives police department’s challenge

A federal judge in Baltimore has refused to dismiss a lawsuit against the police department by a man who claims police confiscated his cell phone and deleted his videos after he recorded a confrontation at the Preakness last year.

Judge Benson E. Legg denied the Baltimore Police Department’s motion to dismiss because Christopher Sharp’s original complaint as “an amalgamation of conclusions and speculations that are not supported by facts.”

The department also claimed the case was moot, in part because of a general order made public last week that instructs officers to allow citizens to record their actions unless it is an unlawful hindrance.

Sharp’s attorney, Mary E. Borja, and Deborah Jeon, legal director for the American Civil Liberties Union of Maryland, argued against the issue being moot. Borja said the department’s position is voluntary and can be changed at any time.

After the hearing, Sharp said the lead-up to trial had been a lot tougher than he originally envisioned. And, while not ruling out a settlement of any kind altogether, he said he planned to continue to pursue the lawsuit.

“I’m ready to keep going with this,” Sharp said. “It’s about seeing justice done. It’s bigger than just me.”

According to the lawsuit Sharp filed in U.S. District Court in Baltimore last year, he attended the 2010 running of the Preakness Stakes at Pimlico with a few friends. As the event progressed he found his way into the clubhouse, where he saw his friend’s girlfriend in an altercation with Baltimore City police officers. He filmed the arrest and beating of the woman. He claims officers pressured him to turn over his camera phone, and when he did every video and picture on it, including family videos of his son, were wiped out.

During the hearing, Legg asked the lawyers whether officers would always need a warrant to taking a camera at a crime scene.

“Thinking about this, I thought well, let’s go back to 1967 when President Kennedy was assassinated in Dallas and the famous film taken by Mr. [Abraham] Zapruder with his home camera,” the judge said. “I would assume if one of the Secret Service agents saw Mr. Zapruder filming, it’s hard to posit a situation where the agent couldn’t have taken the camera because it was evidence of the assassination.”

Borja, with Wiley Rein LLP in Washington, responded that it was unlikely that law enforcement would have seized all assassination-related materials for evidence.

“It’s also hard to imagine a scenario, where the press that would have been covering the president on that day, a scenario where the police would have gone to all the reporters and seized their notebooks and told them ‘we’re taking these because they’re evidence,’” she said.

Consent

Mark H. Grimes, with the Baltimore Police Department’s Office of Legal Affairs, brought up the issue of consent as an exception to the warrant rule during his argument. He said it was undisputed that Sharp had consented to allowing the police to view what was on the phone.

“Consent is always an exception, that’s how the police do their work,” Grimes said. “We’re a little jaded now, but there was a time when people wanted to help police and would voluntarily say, ‘Yeah I saw everything and took pictures and here, you can have them and do what you need to perpetuate an arrest.’”

Sharp is seeking unspecified monetary damages as well as injunctive and declarative relief to have the department prohibited from taking cameras and other recording devices.

In addition to the constitutional issues, Legg also heard arguments about state laws implicated in the case, including Maryland’s wiretap law, which prohibits sound recordings of individuals without their knowledge.

On a third party’s video of the Preakness incident that was not deleted, which was later posted on YouTube, an officer can be heard saying that such a recording is banned by state law.

The general order instructing police to allow the public to record their actions was drafted last August but only made public on Friday afternoon.