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Suit: Police allegedly stomp cellphone woman used to record arrest, beat her

A Baltimore woman is suing the city’s police department, alleging that officers arrested her and destroyed her cellphone in retaliation for her using the phone to film police beating up someone else.

Makia Smith filed her lawsuit in U.S. District Court in Baltimore on May 8 against Commissioner Anthony W. Batts and four officers, and is seeking $1.5 million.

Smith says in the suit that she and her 2-year-old daughter were driving on the 2800 block of Harford Road in March 2012. She said traffic was stopped, and she took out her telephone, which has a camera, opened her door and stood on the door sill of her car to photograph the beating and arrest of a youngster.

In response, Smith said one of the officers grabbed her telephone and smashed it with his foot. He then allegedly pulled Smith out of her car by her hair and, along with three other officers, beat her.

“Physical abuse … being insufficient punishment for filming the officers, they taunted [Smith] with the threat that her … child would be transported to Social Services following her arrest,” Smith said in her suit. “The officers would not call [Smith’s] mother, despite [Smith’s] pleas that they do so, so [Smith’s] mother could take custody of her granddaughter.”

Smith was transported to Central Booking, where she was charged with, among other things, assaulting one of the officers, resisting or interfering with arrest, failing to display a license on demand and willfully disobeying a lawful police order. She said prosecutors ultimately decided not to bring charges.

The police department and Batts exert “substantial control” over the policies and practices that govern the actions of individual officers in the department, Smith said in her complaint.

“[They] have gathered knowledge of, or created by implication of express instruction a policy, practice or custom within [the police department] to violate the constitutional rights of citizens by allowing the seizure of devices used for the recording of officers in public places and by giving permission to delete data or destroy the devices,” Smith said in her suit.

Lawrence S. Greenberg of Greenberg Law Office in Baltimore and James B. Astrachan and Christopher J. Lyon of Astrachan Gunst Thomas P.C. in Baltimore represent Smith.

Astrachan said Thursday the case is important because it represents an attempt to establish the proper procedure for the police to deal with citizens who are lawfully recording police activity.

City Solicitor George Nilson said in an email Thursday that he was not familiar with the alleged actions, but said the police department, “with encouragement of Law Department, developed a proactive policy regarding cellphones and other on-the-spot photography that was supportive of citizen’s rights to photograph what [is] going on subject to what I would describe as reasonable limitations.”

Nilson said the allegations of this complaint “would not be consistent with that policy,” but stressed he had “no information regarding accuracy of the allegations in this case at this point.”

The city’s police union, Fraternal Order of Police, Lodge 3 Inc., did not return a call Thursday requesting comment on the suit.

The department is in the midst of a legal battle with Christopher Sharp, an Owings Mill man who said officers deleted pictures and videos he took of officers allegedly beating and arresting an acquaintance while they were attending the 2010 Preakness.

The Department of Justice stepped in to assert the right of citizens to record officers in their public duties. In a May 14, 2012, memo to the police department’s Office of Legal Affairs, the DOJ said that any resolution to Sharp’s claims for injunctive relief should “include policy and training requirements that are consistent with the important First, Fourth and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties.”

“These rights, subject to narrowly defined restrictions, engender public confidence in our police departments, promote public access to information necessary to hold our government officers accountable, and engender public and officer safety,” the DOJ said.

Nilson said that, in response, the police have drafted the new policy, which he described as “quite comprehensive.”

Nilson acknowledged that the ACLU of Maryland, which represents Sharp in the suit, would like the policy to go further and said its “sufficiency” is an issue in the Sharp case. He noted, however, that the city is “one of a very small number of police departments in the country to have proactively adopted such a policy.”

David Rocah, an attorney at the ACLU, said Thursday the policy the city came up with in response to the Sharp suit was “certainly an improvement over what preceded it, which was nothing despite having been prompted by us to enact one.”

Rocah said the Smith case would seem to be further evidence of problems with the implementation of the policy.

“People have a right to peacefully record police or others in public,” he said. “It’s really that simple. I understand why police might not like that, but it doesn’t mean they can harass or intimidate people.

“This is a problem the city could and should solve,” Rocah said. “Instead, it engages in abusive litigation tactics and seeks to avoid responsibility for the police department’s actions. It is a choice.”

In March, U.S. Magistrate Judge Susan K. Gauvey sharply rebuked lawyers for the police department for conducting a “veritable witch hunt” against Sharp during discovery.