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Taking Liberties: iPhone, YouTube and the First Amendment

The YouTube video shows the 2009 Preakness. A woman lies bleeding on the ground inside Pimlico Race Course in Maryland after an altercation with police.

“How many times are you going to punch her,” someone yells at the five or so cops, who are holding the woman on the ground.

“Was that necessary?” another person screams.

An officer at the scene can be heard telling bystanders to stop videotaping the incident with their cellphones.

“Turn that off,” he says, claiming it’s “illegal” to tape the police in a public place.

So is it really “illegal?” It’s a question many courts are facing these days with the proliferation of cell cameras and other handheld recording devices.

Chris Sharp was at Pimlico that day and also pressed the record button on his phone. The woman on the ground was a friend of a friend, and Sharp caught the entire confrontation, including what he calls “the beating.”

“The police,” he said recently in Baltimore outside his lawyer’s office, “took her down to the ground and were beating her with her hands around her back after they had subdued her.”

Unlike the YouTube video, Sharp says he caught the initial takedown.

“I got the whole thing,” he said as he paced back and forth in the parking lot behind the headquarters for the Maryland American Civil Liberties Union.

Unfortunately, Sharp said something similar to the police at the scene. “I told them I got it all.”

He says the police then took his camera and erased all the contents, including the video and all his pictures.

“After they took my phone,” he said, “and then gave it back to me, everything was off of it… my personal videos of my son and family and friends.”

Sharp and his attorney are now suing the Baltimore Police Department, claiming it violated the First Amendment.

“Under the bill of rights,” said Deborah Jeon, “we, as Americans, have the right to record police incidents so that we can hold police accountable to the same laws that we obey.”

Jeon says the police “harangued” Sharp to give them his phone, claiming they wanted it for evidence.

“Then,” she says, “they took the phone and deleted the so called ‘evidence.' They were the ones who broke the law.”

But not everyone agrees.

“This is ridiculous,” says Rod Wheeler. “This lawsuit should go nowhere.”

Wheeler is a former Washington, D.C., detective and current police advocate.

“Police officers,” he continued, “do not need citizens out there with cameras videotaping each and every move that they make.”

He says cameras get in the way of good law enforcement.

“They interfere with the arrests and, actually, that's exactly what happened with that arrest in Baltimore.”

Wheeler says he’s examined the videotape from Pimlico and he says spectators with cameras made the whole incident worse.

“These individuals were standing back hollering, taunting the police,” he said. “They were interfering and obstructing the arrest.”

Jeon calls that “nonsense.”

“Nothing,” she said, “that happened in this case can be justified on the grounds of good law enforcement.”

“Police have a right to control a crime,” she said. “But we as citizens also have a right to record the actions of police and to disseminate information about that so we can hold the police accountable for their actions.”

Sharp says he certainly did not interfere with the police.

“I can't disagree more, “ he said. “I was nowhere close to the incident going on.”

He said he now believes recording the police is an important right that needs to be preserved.

“I think we have a right to videotape anyone we want to, especially someone that's a public servant,” he said.

The ACLU urges anyone with questions about what they can and can’t videotape in public to view their video called “Know Your Rights:” 

Douglas Kennedy currently serves as a correspondent for FOX News Channel (FNC). He joined the network in 1996 and is based in New York.

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