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Editorial: It’s the law, not a policy

It’s tempting to applaud Wednesday’s agreement among the Baltimore Police Department, civil liberties advocates and a man whose cellphone was seized by police after he taped officers arresting his friend at the 2010 Preakness Stakes.

Yes, it’s laudable that the police agreed to institute a policy in which they recognize citizens’ First Amendment rights to record video or sound or to photograph police activities in a public space. It’s right that police acknowledged they can’t seize the device unless they have probable cause to suspect wrongdoing — and not just because they’re peeved at being recorded. It’s a good thing that police under no circumstances will erase or delete images or sounds or other content on a cellphone.

On the other side, the new policy properly takes note that citizens can’t be interfering with the police doing their job.

What seems gravely off-key to us is the fact that this agreement is viewed as a policy. This is a constitutionally guaranteed right. This is the law, not a policy.

It’s disturbing to think that other police jurisdictions might not feel constrained to observe these rights and that similar incidents would be regarded as a uniquely local matter, depending on the town or county where you live.

Christopher Sharp, the man police ordered to surrender his cellphone during the Preakness incident, was awarded $250,000 to settle his lawsuit against the city. All but $25,000 of that amount is going to Sharp’s legal team, which included attorneys from the American Civil Liberties Union of Maryland.

Sharp’s treatment by attorneys for the police did not distinguish the city. A U.S. magistrate judge tossed out efforts by the defense to obtain Sharp’s medical, work and phone records, and she scolded them for being heavy-handed with the relatives of Sharp’s ex-wife.

We think it would be in order for the General Assembly to encode this policy in statute. It’s appalling that this isn’t broadly recognized as constitutionally protected activity. Lawmakers can rectify that.