Case 1:11-cv-02888-BEL Document 24 Filed 01/10/12 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CHRISTOPHER SHARP,

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Plaintiff,

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v.

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BALTIMORE CITY POLICE

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DEPARTMENT, et al.,

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Defendants.

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____________________________________)

Civil No. 1:11-cv-02888-BEL

STATEMENT OF INTEREST OF THE UNITED STATES

This litigation presents constitutional questions of great moment in this digital age: whether

private citizens have a First Amendment right to record police officers in the public discharge of their

duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize

and destroy such recordings without a warrant or due process. The United States urges this Court to

answer both of those questions in the affirmative. The right to record police officers while performing

duties in a public place, as well as the right to be protected from the warrantless seizure and destruction

of those recordings, are not only required by the Constitution. They are consistent with our fundamental

notions of liberty, promote the accountability of our governmental officers, and instill public confidence

in the police officers who serve us daily.

The United States is charged with enforcing three civil federal civil rights statutes that prohibit

state and local law enforcement agencies from engaging in conduct that deprives persons of their rights

under the Constitution and laws of the United States. One of the provisions that the United States

enforces is the police misconduct provision of the Violent Crime Control and Law Enforcement Act of

1994, 42 U.S.C. § 14141, which authorizes the Attorney General to file lawsuits seeking court orders to

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reform police departments engaging in a pattern or practice of violating citizens’ federal rights. The United States also enforces the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964. Together, these three provisions prohibit discrimination on the basis of race, color, sex, or national origin by police departments receiving federal funds. Because of these enforcement responsibilities, the United States has a strong interest in ensuring that citizens’ rights under the First, Fourth, and Fourteenth Amendments are not diminished when they record police carrying out their duties in a public setting. Accordingly, the United States files this Statement of Interest pursuant to 28 U.S.C. § 517.
FACTUAL AND PROCEDURAL BACKGROUND On May 15, 2010, while in the Clubhouse at the Pimlico Race Course, Plaintiff Christopher Sharp observed Baltimore City Police Department (“BPD”) officers forcibly arresting his friend.1 Compl. at 9, ECF. No. 2. Mr. Sharp used his cell phone camera to video and audio record the officers’ conduct. Id. at 2. Several officers, in succession, approached Mr. Sharp and ordered him to surrender his camera phone. Id. at 10. After twice refusing to comply with officers’ demands, Mr. Sharp surrendered his phone to an officer who indicated that he needed to review and possibly copy Mr. Sharp’s recording as evidence. Id. This officer left the Clubhouse with Mr. Sharp’s phone. Id. at
1 The United States assumes the facts presented in the Plaintiff’s Complaint are true for the purposes of this Statement of Interest. See Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1950 (2009). Although not included in the Complaint, Defendants’ Motion to Dismiss Complaint or for Summary Judgment indicates that Mr. Sharp’s friend was arrested for “striking a citizen in the presence of a police officer, resisting arrest, [and] assault second degree-law enforcement.” See Def. Motion to Dismiss Complaint or for Summary Judgment at 2 & n.1, ECF. No. 20.
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11. When the officer returned with Mr. Sharp’s cell phone, he ordered Mr. Sharp to leave the premises. Id. As Mr. Sharp left the Clubhouse, he discovered that officers had deleted all of the recordings on his cell phone, including the two recordings of his friend’s arrest and at least twenty personal videos. Id. at 12. The personal videos included recordings of his young son at sports events and parties and other videos of great sentimental value. Id. Mr. Sharp’s cell phone had also been reset so that it only permitted emergency calls. Id.
BPD initiated a roll call training on August 17, 2011, that informed BPD officers that “[i]t is lawful for a person to videotape activities by a law enforcement officer in a public place and in the course of a law enforcement officer’s regular duty.” See Def. Motion to Dismiss Complaint or for Summary Judgment (“Def. MTD”) at 12, ECF. No. 20.2 The training does not reference the First, Fourth, or Fourteenth Amendments. See id. at 12-15. In addition, BPD transmitted an electronic message department-wide regarding the Maryland Wiretapping Act; provided an additional training to sergeants; and promulgated a new General Order that “instructs all sworn members on the Departments’ protocol for addressing the video recording police activity and/or the video recording of a suspected crime.” Def. MTD Ex. 2 at 2.
On August 31, 2011, Mr. Sharp filed a Complaint in the Circuit Court for Baltimore City against BPD, Frederick H. Bealefeld, III, Commissioner of the Baltimore City Police Department, and Unknown Police Officers Nos. 1, 2, and 3, alleging violations of state law and rights protected by the First, Fourth, and Fourteenth Amendments to the U.S. Constitution. On October 11, 2011, the case was removed to the United States District Court for the District of Maryland. On November 30, 2011, BPD 2 Although the parties have yet to engage in discovery to test the factual averments in Defendants’ Motion to Dismiss Complaint or for Summary Judgment, the United States assumes the truth of Defendants’ factual allegations for the purposes of this Statement of Interest. As explained infra, even assuming Defendants’ factual averments are correct, this Court should not grant summary judgment.
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and Frederick H. Bealefeld, III (“Defendants”) filed a Motion to Dismiss Complaint or for Summary Judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure.
ARGUMENT The First, Fourth, and Fourteenth Amendments protect Mr. Sharp from the actions taken by BPD officers in response to Mr. Sharp’s recording of their actions, at least on the facts alleged in the Complaint. Indeed, Defendants recognize that the First Amendment is implicated when a private citizen records officers in the public discharge of their duties, and they have begun to take steps to ensure that the First Amendment is upheld. Unfortunately, Defendants’ remedial actions to date are insufficient to ensure that a violation of the First Amendment does not recur, nor have Defendants taken any remedial actions regarding the alleged violations of the Fourth and Fourteenth Amendments. Accordingly, Defendants’ request for partial summary judgment should be denied.3 1. The First Amendment Protects the Recording of Police Officers Performing Their Duties in Public
a. Defendants Concede That Private Citizens May Record Public Police Activities The First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties. Mr. Sharp’s recording of his friend’s arrest by BPD officers is
3 In their Motion to Dismiss, Defendants make two arguments: (1) Plaintiff failed to state a claim against BPD or the Commissioner because the Complaint does not include sufficient facts to establish municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); and (2) Plaintiff’s claims are moot because there is no reasonable expectation that the violations alleged by Plaintiff will reoccur. Defendants’ first argument is based on alleged factual and pleading deficiencies that do not implicate the United States’ interests. Defendants’s second argument, however, assumes arguendo that Defendants could be held liable for the actions of the individual police officers and asserts that Plaintiff’s claims are nevertheless moot because of the remedial actions Defendants have taken. In addressing Defendants’ second argument, the United States also assumes arguendo that Defendants could be held liable under Monell. As argued below, Defendants’ remedial actions actions are insufficient to moot Plaintiffs’ claims.
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unquestionably protected by the First Amendment, and Defendants concede this point. See Def. MTD at 12-15. Federal courts have recognized that recording devices are a form of speech through which private citizens may gather and disseminate information of public concern, including the conduct of law enforcement officers. The First Circuit recently held in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that “[b]asic First Amendment principles” and federal case law “unambiguously” establish that private citizens possess “a constitutionally protected right to videotape police carrying out their duties.” Id. at 82. See Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing the “First Amendment right to film matters of public interest”); Robinson v. Fetterman, 378 F. Supp. 2d 534, 542 (E.D. Pa. 2005) (finding “no doubt that the free speech clause of the Constitution protected” plaintiff who videotaped officers because “[v]ideotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence”). The right to record police activity is limited only by “reasonable time, place, and manner restrictions.” Glik, 655 F.3d at 84; see Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (noting “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions,” and finding “insufficient case law to establish a right to videotape police officers during a traffic stop,” an “inherently dangerous situation[ ]”).
There is no binding precedent to the contrary. In Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009), the Fourth Circuit issued a one page, unpublished per curium opinion summarily concluding – without providing legal or factual support – that the “right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.” Id. at 853. The Fourth
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Circuit’s opinion in Szymecki is not a barrier to this Court making a reasoned judgment based on established constitutional principles. See United States v. Stewart, 595 F.3d 197, 199 n.1 (4th Cir. 2010) (“Unpublished opinions have no precedential value in our Circuit.”); see also Glik, 655 F.3d at 85 (“[T]he absence of substantive discussion deprives Szymecki of any marginal persuasive value it might otherwise have had.”).
Furthermore, the facts alleged here indicate that BPD officers confronted Mr. Sharp because he was taking video and audio recordings of his friend’s arrest, ordered him to surrender his camera phone, and ultimately destroyed the recordings on Mr. Sharp’s phone because the BPD officers did not want the recordings to be used to impugn their actions. “There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991). The reach of the First Amendment’s protection extends beyond the right to gather such information – it also prohibits government officials from “punish[ing] the dissemination of information relating to alleged governmental misconduct.” Id. at 1035; see Butterworth v. Smith, 494 U.S. 624, 632 (1990) (speech relating to alleged governmental misconduct “has traditionally been recognized as lying at the core of the First Amendment”).
The right to engage in and disseminate speech relating to government misconduct is not diminished when the government actors are police officers. See City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”); Norwell v. City of Cincinnati, Ohio, 414 U.S. 14, 16 (1973) (“Surely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer.”); see also Jean v. Mass. State Police, 492 F.3d 24, 30 (1st Cir. 2007) (finding that activist’s recording of police officers’ “warrantless and potentially
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unlawful search of a private residence is a matter of public concern”); Wilson v. Kittoe, 337 F.3d 392, 399 n.3 (4th Cir. 2003) (“Peaceful verbal criticism of an officer who is making an arrest cannot be targeted under a general obstruction of justice statute such as Virginia’s without running afoul of the First Amendment . . . .”).
The Fourth Circuit has explicitly held that suppressing information critical of the police violates the First Amendment. In Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003), the Fourth Circuit considered whether sheriff’s deputies violated the First, Fourth, and Fourteenth Amendments when they suppressed the distribution of a newspaper critical of the Sheriff and his deputies. The Court held that “the seizure clearly contravened the most elemental tenets of First Amendment law.” Id. at 521. When law enforcement officers target materials “for suppression and retaliation because they disagree[] with its viewpoint and intend[] to prevent its message from being disseminated,” “[t]his by itself [i]s sufficient to violate the Constitution.” Id. Moreover, by suppressing constitutionally protected speech, law enforcement officers violated “both a speaker’s right to communicate information and ideas to a broad audience and the intended recipients’ right to receive that information and those ideas.” Id. at 522. The same principles apply here. If, as Mr. Sharp alleges, BPD officers suppressed the dissemination of his recording of his friend’s arrest, such an action would clearly violate the First Amendment.
b. Defendants’ Remedial Actions Are Not Sufficient To Prevent Future Constitutional Violations
Defendants do not dispute that the First Amendment protects Mr. Sharp’s recording of his friend’s arrest. See Def. MTD at 12-15. Nor do Defendants address, and presumably therefore do not dispute, Mr. Sharp’s First Amendment right to disseminate this recording. Instead, Defendants argue
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that they have taken sufficient steps to address the alleged violation of the First Amendment, rendering Mr. Sharp’s claims moot. See id.
Specifically, Defendants allege that, BPD has voluntarily developed training protocols for its officers and sergeants and promulgated a new policy in order to clarify the rights of individuals who engage in protected First Amendment activities. See Def. MTD at 12-13. Defendants contend that these steps are sufficient to establish that Mr. Sharp’s First Amendment claims for injunctive relief are now moot.4 While the United States appreciates that Defendants now recognize that measures should be taken to address the alleged First Amendment violations, the remedial actions taken thus far – BPD’s promulgation of a new General Order and provision of training – are not sufficient to prevent future constitutional violations.
Federal courts have a “duty . . . to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” United States v. Or. State Med. Soc‘y, 343 U.S. 326, 333 (1952). Under such circumstances, “[a] controversy may remain to be settled” yet “[t]he defendant is free to return to his old ways.” United States v. W. T. Grant Co., 345 U.S. 629, 632-33 (1953). Consistent with this principle, “[a] defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174 (2000); City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001) (This “general rule . . . traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.”). In order to overcome the general rule, a
4 Defendants also appear to claim that Mr. Sharp’s Fourth and Fourteenth Amendment claims are now moot, see Def. MTD at 13, although they do not address either of these claims substantively in their Motion. See infra Note 6.
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defendant must establish that – due to his voluntary cessation of the challenged conduct – “there is no reasonable expectation that the wrong will be repeated.” W. T. Grant Co., 345 U.S. at 632-33.
Although Defendants have taken some remedial actions, these measures do not adequately ensure that violations will not recur. See Friends of the Earth, Inc., 528 U.S. at 193 (Defendants have the “formidable burden” of establishing that it’s “absolutely clear” that their voluntary actions can reasonably be expected to prevent future constitutional violations.”). In the months following the initiation of Mr. Sharp’s civil suit, Defendants developed and implemented a roll call training, transmitted an electronic message on the same topic, and provided an additional training to sergeants. Def. MTD at 5-6. These training documents, however, do not explicitly acknowledge that private citizens’ right to record the police derives from the First Amendment, nor do they provide clear and effective guidance to officers about the important First Amendment principles involved.5 See Def. MTD at 12 (referring to roll call training on “Wire Tapping Law,” an electronic message “on the same topic,” training for sergeants on “the scope of the Maryland Wiretapping Act” and “an explanation of the right of citizens to record public police activities”); Def. MTD, Ex. 2-4. Defendants also place great emphasis on their recently promulgated General Order as evidence supporting their Motion to Dismiss, but the General Order was not attached to their Motion. Instead, Defendants ask this Court to conclude that BPD’s General Order is sufficient to prevent future constitutional violations based on Defendants’ assurances alone. As it currently stands, “nothing in the record indicates that Defendants’ actions have resulted in permanent changes,” prohibiting a finding that Mr. Sharp’s claims for injunctive relief are
5 Significantly, the training materials also make no reference to the Fourth or Fourteenth Amendments, so it is unclear how these materials could possibly moot Mr. Sharp’s claims on these issues.
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moot. Feldman v. Pro Football, Inc., 579 F. Supp. 2d 697, 706 (D. Md. 2008) (finding Plaintiff’s claims not moot because “there is nothing to prevent Defendants from returning to their prior practices”).
In short, the First Amendment issues presented in this case are significant and are not adequately addressed by training that does not specifically describe officers’ duties under the First Amendment. If BPD maintains a policy, practice or custom of advising officers to detain citizens who record the police while in the public discharge of their duties and to seize, search, and delete citizens’ recordings as Plaintiff’s contend, Compl. at 7, the remedial measures taken by the Defendants are not sufficient to prevent future constitutional violations. At minimum, Defendants should develop a comprehensive policy that specifically addresses individual’s First Amendment right to observe and record officer conduct. This policy should be implemented through periodic training, and the effectiveness of the policy and training should be tested routinely through quality assurance mechanisms. Moreover, BPD should track allegations that an officer has interfered with a citizen’s First Amendment right to observe and/or record the public performance of police duties. While Defendants have taken some measures to address Plaintiff’s allegations, those measures do not demonstrate that First Amendment violations could not recur, and therefore summary judgment is inappropriate. 2. The Fourth Amendment Protects Private Property From Seizure or Search Without a
Warrant or Probable Cause The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.6 The Fourth
6 While Defendants purport to have resolved Mr. Sharp’s First Amendment claims through the provision of training and the development of a new General Order, Defendants’ position on Mr. Sharp’s Fourth and Fourteenth Amendment claims is less clear. To the extent the Defendants argue that their voluntary actions to prevent officers from retaliating against persons engaged in activity protected by the First Amendment also moots Mr. Sharp’s Fourth and Fourteenth Amendment claims, Defendants fail to recognize the independent import of these claims. The Supreme Court “has never held that one specific
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Amendment “traditionally has been deemed to protect” private citizens’ “personal effect[s].” Soldal, 506 U.S. at 65 (citing Cardwell v. Lewis, 417 U.S. 583, 591 (1974)); Altman v. City of High Point, N.C., 330 F.3d 194, 202 (4th Cir. 2003) (“[T]he [Supreme] Court has treated the term ‘effects’ as being synonymous with personal property.”). The interests animating the Fourth Amendment’s prohibition against unreasonable searches and seizures are heightened when the property at issue is also protected by the First Amendment. The Supreme Court has held that Fourth Amendment limitations on law enforcement officers’ authority to seize individuals’ property must be “scrupulously observed” when the item seized contains information protected by the First Amendment and “the basis for the seizure is disapproval of the message contained therein.” Walter v. United States, 447 U.S. 649, 655 (1980). This requirement that government officials closely adhere to the strictures of the warrant requirement when the item to be seized is protected by the First Amendment recognizes that the “[t]he Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Walter, 447 U.S. at 655 n.6; see also New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986) (“We have long recognized that the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures.”).
Indeed, the seizure of material protected by the First Amendment is a form of prior restraint – a long disfavored practice only permitted in limited circumstances not present here. The Supreme Court has recognized that “seizing films to destroy them or to block their distribution or exhibition is a very
constitutional clause gives way to another equally specific clause when their domains overlap.” Presley v. City of Charlottesville, 464 F.3d 480, 485 (4th Cir. 2006); Soldal v. Cook Cnty., Ill., 506 U.S. 56, 70 (1992) (“Certain wrongs affect more than a single right . . . [w]here such multiple violations are alleged, we are not in the habit of identifying as a preliminary matter the claim’s ‘dominant’ character. Rather, we examine each constitutional provision in turn.”).
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different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding.” Heller v. New York, 413 U.S. 483, 490 (1973). When material falls “arguably within First Amendment protection,” and officers’ warrantless seizure of that material “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of that material, the Fourth Amendment is violated. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (“Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). Such a seizure, which prohibits the dissemination of constitutionally protected information “presents essentially the same restraint on expression as the seizure of all the books in a bookstore.” Id. at 504. As described above, Defendants’ seizure and destruction of Mr. Sharp’s videos appears to have been based on the content of those videos and prevented their dissemination. These First Amendment concerns “require[] that the Fourth Amendment be applied with ‘scrupulous exactitude.’” Maryland v. Macon, 472 U.S. 463, 468 (1985).
In this case, Mr. Sharp alleges that Defendants seized his cell phone and searched it without a warrant. An officer’s warrantless search or seizure of a private citizen’s personal property is per se unreasonable unless the search or seizure “falls within ‘certain carefully defined classes of cases’ that permit warrantless searches.” United States v. Perez, 393 F.3d 457, 460 (4th Cir. 2004) (citing Camara v. Municipal Court of San Francisco, 387 U.S. 523, 528-29 (1967)); Altman, 330 F.3d at 205 (“A seizure of personal property conducted without a warrant is presumptively unreasonable.”). Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other
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recognized exception to the warrant requirement is present.”7 United States v. Place, 462 U.S. 696, 701 (1983). Even then, officers may not search the property without first obtaining a warrant. Id. at 701 & n.3. In determining whether the seizure and search were reasonable under the circumstances, courts “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interest against the importance of the governmental interests alleged to justify the intrusion,” to determine if an officer’s conduct violated the Fourth Amendment. Perez, 393 F.3d at 460 (citing Place, 462 U.S. at 703).
It is well established that individuals have a property interest in their cell phones that is protected by the Fourth Amendment. A government official’s intrusion into a private citizen’s personal effects constitutes a Fourth Amendment seizure if the individual has a “possessory interest” in the property and the official engages in “some meaningful interference” with that interest. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Similarly, a government official’s search of property violates the Fourth Amendment if officials infringe upon an “an expectation of privacy that society is prepared to consider reasonable.” Id. Private citizens have both a possessory interest in their cell phones and a recognized expectation of privacy in the contents of their cell phones. See United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (recognizing defendants’ possessory interest in seized cell phone and privacy interest in text messages and call records, but finding search permissible as search incident to arrest);
7 The exception for warrantless searches incident to an arrest does not apply in this case. Courts have recognized that it may be necessary for a law enforcement officer to conduct a warrantless search of the contents of a suspect’s cell phone incident to a lawful arrest if the phone contains evidence that may otherwise be destroyed. See, e.g., United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (“[O]fficers may retrieve text messages and other information from cell phones and pagers seized incident to an arrest” where there is a “manifest need . . . to preserve evidence.”). The “search incident to arrest” exception to the warrant requirement “has been traditionally justified by the need to search for weapons, instruments of escape, and evidence of crime.” United States v. Reid, 929 F.2d 990, 994 (4th Cir. 1991); see also Knowles v. Iowa, 525 U.S. 113, 116 (1998). The parties agree that Mr. Sharp was not arrested and that officers destroyed Mr. Sharp’s recordings instead of copying them as evidence for a criminal prosecution.
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United States v. Young, 278 F. App’x 242, 245-46 (4th Cir. 2008) (per curiam) (recognizing defendant’s “[p]rivacy rights in the phone” from which officer retrieved text messages); United States v. Wurie, 612 F. Supp. 2d 104, 109 (D. Mass. 2009) (“It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone.”). An individual’s personal cell phone “contain[s] a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers” and is akin to “a personal computer that is carried on one’s person.” United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (finding that defendant “had a reasonable expectation of privacy regarding this information”). Accordingly, Mr. Sharp has a protectable interest in his cell phone and its contents under the Fourth Amendment.
In this case, the Complaint does not include any allegations indicating that exigent circumstances existed that would permit the BPD officers to seize Mr. Sharp’s phone without a warrant, and Defendants have not suggested that any existed in their Motion. See Place, 462 U.S. at 701. Moreoever, it is unclear whether, when Mr. Sharp surrendered his phone to officers, he did so “voluntarily” and not as “the result of duress or coercion, express or implied.” Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973); United States v. Hylton, 349 F.3d 781, 785 (4th Cir. 2003) (An individual’s “valid consent” is “[o]ne well-recognized exception” to the warrant requirement). See Def. MTD at 5. Nor is it clear whether Mr. Sharp voluntarily consented to a search of his phone’s contents. These ambiguities alone suggest that this case is inappropriate for summary judgment.
Even if Mr. Sharp did consent to the surrender of his phone and some type of search of its contents, “a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment’s prohibition on ‘unreasonable searches.’” Jacobsen, 466 U.S. at 124. Law enforcement officers violate
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the Fourth Amendment if their search exceeds the scope of a person’s consent. See United States v. Neely, 564 F.3d 346, 353 (4th Cir. 2009) (“Because Officer Tran’s search exceeded the scope of Neely’s consent and cannot be justified under Terry, we find that the search of the interior of Neely’s car was in violation of his Fourth Amendment rights.”). Federal courts have recognized the uncontroversial principle that, by consenting to an initial search of private property, private citizens do not thereby consent to the destruction of that property. See, e.g., United States v. Strickland, 902 F.2d 937, 941-42 (11th Cir. 1990) (explaining that the scope of a search pursuant to a general statement of consent “is not limitless” and that “a police officer could not reasonably interpret a general statement of consent to search an individual’s vehicle to include the intentional infliction of damage to the vehicle or the property contained within it”). Here, Defendants deleted Mr. Sharp’s videos from his cell phone, allegedly without consent. If these allegations are true, Defendants violated Mr. Sharp’s Fourth Amendment rights. 3. The Fourteenth Amendment Prohibits the Seizure and Destruction of Property Without
Due Process The Fourteenth Amendment prohibits state and local officials from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. Here, Mr. Sharp alleges that Defendants seized and destroyed his cell phone videos without notice or an opportunity to be heard and that this was pursuant to a policy, practice, or custom of Defendants. Compl. at 18. If these allegations are accurate, BPD officers violated the Fourteenth Amendment when they deprived Mr. Sharp of personal property without providing him with notice or an opportunity to object to the deletion of the recordings in his cell phone, and Defendants have not put forward any evidence that they have taken remedial measures to address this violation.
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A private citizen’s “constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972). By mandating that individuals be afforded an opportunity to be heard, the due process clause “operates to protect the ‘use and possession of property from arbitrary encroachment – to minimize substantively unfair or mistaken deprivations of property.’” See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir. 2003) (finding that statute permitting law enforcement officers to seize and destroy video gaming machines “with no process at all” violated due process) (citing Fuentes, 407 U.S. 67 at 81); Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause . . . .”).
Mr. Sharp has alleged sufficient facts in his Complaint to suggest a violation of the Fourteenth Amendment. A plaintiff alleging a due process violation must establish that “(1) they had property or a property interest (2) of which the defendant deprived them (3) without due process of law.” Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir. 2005); see also Zinermon v. Burch, 494 U.S. 113, 126 (1990) (“[T]o determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.”). Private citizens have property interests in their personal effects, including cell phones and the contents of their cell phones. See supra Part 2; see also Matthias v. Bingley, 906 F.2d 1047, 1051 (5th Cir. 1990) (“Of course, the plaintiffs’ personal belongings disposed by the City in this case fall[] under the rubric ‘property’ governed by the Due Process Clause.”). Mr. Sharp alleges, and Defendant does not dispute, that officers permanently deleted the recordings on Mr. Sharp’s cell phone – including numerous videos of his young son at sports events and other personal videos – without first providing him with “notice
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reasonably calculated” to apprise him of “the pendency of the action” and “afford [him] an opportunity to present [his] objections.”8 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Such notice is “an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality.” Id.
“The right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.” Mathews, 424 U.S. at 333 (internal citations omitted). BPD officers appear to have violated the core requirements of procedural due process when – without providing notice or an opportunity to be heard – they allegedly – and irrevocably – deprived Mr. Sharp of the recordings on his cell phone. See also Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 823 (5th Cir. 2007) (The notice defendant provided to the plaintiff “was insufficient to satisfy due process because [plaintiff] did not receive the notice until after his personal property was allegedly discarded . . . . [D]iscarding [plaintiff’s] personal property in this manner violated his procedural due process rights.”). If the facts alleged in Mr. Sharp’s Complaint are true, they make out a violation of the Fourteenth Amendment. Defendants have not submitted any evidence suggesting that they have remedied the alleged violations, so summary judgment on this claim should be denied.
8 The facts, as alleged, indicate that – after Plaintiff had unwittingly surrendered his phone to an officer – another officer informed him that “they’ll probably just erase it and give it back.” Compl. at 11.
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CONCLUSION For the reasons set forth herein, the Court should deny Defendants’ request for summary judgment in their Motion to Dismiss or for Summary Judgment.
Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division JONATHAN M. SMITH Chief Special Litigation Section TIMOTHY D. MYGATT Special Counsel Special Litigation Section
/s/ Joshua C. Delaney JOSHUA C. DELANEY (Bar #024664) RASHIDA J. OGLETREE (DC Bar #974441) Trial Attorneys U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 616-2446 Facsimile: (202) 514-0212 Email:joshua.delaney@usdoj.gov
Attorneys for the United States of America
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IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

Christopher Sharp, 4938 Stone Shop Circle Owings Mills, MD 21117
Plaintiff,
vs.
Baltimore City Police Department, 601 East Fayette Street Baltimore, MD 21211-2908
Frederick H. Bealefeld, ID, in his official capacity as commissioner of the Baltimore City Police Deparbnent, 601 East Fayette Street Baltimore, MD 21211-2908
Unknown Police Officen Nos. 1, 2 and 3, in both their personal capacities and their official capacities as officers of the Baltimore City Police Deparbnent, 601 East Fayette Street Baltimore, MD 21211-2908
Defendants.

Civil Action No. _ _ _ _ __ Complaint Jury liial Demanded

.' c

Plaintiff Christopher Sharp, for his complaint against the defendants named above, avers on knowledge, information, and belief:

Case 1:11-cv-02888-BEL Document 2 Filed 10/11/11 Page 2 of 26
NATURE OF THE CASE 1. This is a civil rights action challenging as unconstitutional the Baltimore City
Police Department's warrantless arrest and detention ofplaintiffChristopher Sharp, as well as
the seizure and destruction of Mr. Sharp's property, premised upon Mr. Sharp's exercise ofhis
rights under the federal and Maryland constitutions to document the conduct of City police officers performing their public duties in a public place.
2. In May 2010, while attending the 135th running of the Preakness, plaintiff used his cell-phone camera to video and audio record the arrest and beating of an acquaintance at Pimlico Race Course. Officers of the Baltimore Police Department stopped him, seized his cell phone, and detained him while one officer left the area with the phone. After the officers returned the phone, Mr. Sharp discovered that the officers had deleted video ofthe arrest and all other videos that had been stored on the device, including numerous videos ofhis young son and other
personal events.
3. Citizens have the right, protected under the First Amendment to the United States Constitution, and Article 40 ofthe Maryland Declaration of Rights, to document the public performance of government officials, including police officers, through photography as well as audio and video recording. Neither federal nor Maryland law prohibits this activity, yet lawenforcement officers in the State of Maryland-specifically including Baltimore City police officers -routinely threaten to arrest or punish civilians who document police activity, using the Maryland Wrretap Act and related, inapplicable infractions to back up these threats.
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4. This case involves just soch a misapplication of the Maryland Wrretap Act by Baltimore City police officers: they unlawfully detained a young man who had used his cell phone to record a public interaction between police and one ofhis friends; demanded that he surrender his cell phone; and deleted all videos from that cell phone, regardless of their content.
5. By destroying these videos -even ifpurporting to act under the Maryland Wrretap Act - the officers violated Mr. Sharp's rights guaranteed by the United States Constitution, the Maryland Declaration of Rights, and several common-law rights. This civilrights action seeks declaratory and injunctive relief as well as monetary damages to remedy these violations.
PARTIES 6. Plaintiff Christopher Sharp is a 37-year-old resident of Baltimore County and the State of Maryland. He is a person within the meaning ofthe constitutions of the United States and the State of Maryland. As explained below, Mr. Sharp has been injured and risks further harm as a result ofthe defendants' illegal acts and omissions. 7. Defendant Baltimore City Police Department is a government agency. The City Council holds hearings on Police Department policy and sets the Police Department budget. It is a "person" as that term is defined in 42 U.S.C. § 1983.
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8. Frederick W. Bealefeld, III, is the commissioner of the Baltimore Police Department He is the chieflaw-enforcement officer ofthe Baltimore City Police Departinent, appointed by the Mayor of Baltimore, with the advice and consent of the City Council. As Police
Commissioner, Mr. Bealefeld exercises final policy-making authority for the Police Department,
establishing the duties, conduct, and discipline of officers and other employees, and establishing policies regarding screening, hiring, training, monitoring, and supervision of subordinates. He is a person within the meaning of in 42 U.S.C. § 1983, acting at all relevant times under color of state Jaw. Commissioner Bealefeld is sued in his official capacity.
9. Unknown Police Officers Nos. 1, 2, and 3 are police officers employed by the Baltimore City Police Department. They are "persons" as that term is defined in 42 U.S.C. § 1983, and at all relevant times were acting under color of state Jaw. They are sued in both their
personal and official capacities. JURISDICTION AND VENUE
10. This Court has subject-matter jurisdiction over this case because Mr. Sharp seeks
more than $5,000 in damages. 11. This Court has personal jurisdiction over the Baltimore City Police Department
because it is an entity located within the State of Maryland. 12. This Court has personal jurisdiction over Unknown Police Officers Nos. 1, 2, and
3 as well as Commissioner Bealefeld because:
a. Their tortious acts and omissions occurred in Maryland and injured Mr.
Sharp there as well; and
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b. At the time of those acts and omissions, these defendants were all employed within Maryland, and thus were performing a character ofwork or service within Maryland.

13. Baltimore.

Venue is proper in this Court because the causes of action arose in the City of

PRE-SUIT REQUIREMENTS

14. Mr. Sharp has satisfied the prerequisites to suit specified by the Maryland Tort Claims Act, Md. Code Ann., State Gov't (SG) § 12-106, and the Local Government Tort Claims Act, Md. Code Ann., Cts. & Jud. Proc. (CJ) § 5-304, for each claim in this complaint to which
these laws apply.

15. Mr. Sharp sent notice ofhis claims to the Baltimore City Solicitor and the
Maryland State Treasurer by certified mail, return receipt requested, on September 8, 20I0.

a

The Baltimore City Solicitor did not respond within six months of

receiving Mr. Sharp's claim and has not responded to date.

b. The Maryland State Treasurer rejected Mr. Sharp's claim by letter dated September I0, 2010.

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FACfUALALLEGATIONS A. Government Accountability and tbe Right to Record Official Conduct
16. While most police officers perform their duties in a lawful manner, some police officers abuse their authority. In many cases, the only evidence of what happened during an encounter between police officers and civilians- including whether police officers and/or civilians behaved lawfully - is the conflicting testimony of police officers and civilians. In such cases, video and audio recordings of police-civilian encounters can provide critical evidence that is not otherwise available.
17. Indeed, on many occasions in the last decade, audio/ video recordings made by civilians ofpolice-civilian encounters have helped to resolve testimonial disputes about alleged police misconduct. Sometimes these audio/video recordings have tended to disprove allegations of police misconduct, and sometimes they have tended to prove allegations of police misconduct.
18. Federal, state, and local law enforcement agencies have deployed tens of thousands of audio/video recording devices for purposes of documenting certain interactions between police officers and civilians. For example, many police squad cars are equipped with audio/video recording devices that document traffic stops. One law enforcement purpose of these audio/video recording devices is to deter and detect police misconduct, and another is to disprove false accusations of police misconduct.
19. The right to gather, receive and record information is grounded in the Free Speech Clause of the First Amendment. This right is further grounded in:
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a. the Petition Clause of the First Amendment, ifthe purpose of gathering, receiving, or recording the information is to use it to petition government for redress of
~evances;and
b. the Free Press Clause ofthe First Amendment, if the purpose of gathering, receiving, or recording the information is to publish or disseminate it to other people. 20. This First Amendment right to gather, receive, and record information includes the right to video and audio record police officers in the circumstances described herein. B. Baltimore City Police Have Engaged in a Pattern Or Practice of Misapplication of the Maryland Wiretap Act to Prevent Citizens Like Christopher Sharp from Recording Official Condnct. 21. The Baltimore City Police Department maintains a policy, practice, or custom that guides police officers who discover that their oral communications made in public regarding official business have been recorded. 22. The policy, practice, or custom advises police officers that they may unlawfully detain the subjects, seize the devices used for recording, improperly search the phones, and delete the recordings. 23. Acting under this policy, practice, or custom in numerous recent instances, officers ofthe Department have menaced citizens who were recording officers performing their official duties in public. Examples include the following:
a. In February 2008, a video recording surfaced that showed an officer berating a teenager for skateboarding in the Inner Harbor. At the end of the recording, the officer turned to the individual who was recording the incident and threatened him for making the recording.
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b. As a crowd gathered following an arrest outside Power Plant Live in

October 2008, police officers seized cell phones from individuals in the crowd and, as

one officer recalled during a deposition related to the incident, began throwing the phones

to the ground. As articulated by the deposed officer, officers were seizing phones because

members of the crowd were recording the incident for later posting on YouTube and

similar Web sites.

c. During the 2010 Preakness at which Mr. Sharp's recordings were

destroyed, another individual was threatened for recording the aftermath ofthe arrest. An

officer instructed the individual to cease his recording, stating, "It's illegal for you tape

anybody's voice or anything else-it's against the Jaw in the State of Maryland."

d. In January 2010, Baltimore City Police officers entered the "I Don't Know

Bar," located at 1453 Light Street in Baltimore City, and arrested Kieran McNelis for

taking a picture of a police arrest being conducted outside the bar. Kieron McNelis was

released several hours later without being charged with any crime.

e. In Apri12010, Walter Carpenter was loading a truck at his business on

Baker Street when he noticed two Baltimore City Police officers forcibly arresting two

men across the street. Mr. Carpenter took out his cell phone and recorded what he

believed was unnecessarily forceful police conduct. Upon refusal to terminate his

recording, Mr. Carpenter was arrested for disorderly conduct and resisting arrest.

f.

In November 2010, at a small protest outside the Baltimore Waterfront

Marriott, an officer told a woman recording him that, "I'm not giving you permission to

tape me or take my picture." When the woman argued that such taping was not illegal,

the officer waved his finger at her and repeated his words.

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C. Facts Concerning Christopher Sharp Individually 24. Every May, tens ofthousands of spectators attend the Preakness held at Pimlico
Race Course in northwest Baltimore. Horse races are run all day long, with the Triple Crown
race, the Preakness Stakes, held in the late afternoon.
25. Mr. Sharp attended the 135th Preakness held on May 15, 2010. Mr. Sharp was
initially joined by two friends, Mark Dudek and Anna Chyzhova
26. Mr. Sharp, Mr. Dudek, and Ms. Chyzhova watched the races from seats in the
grandstand located along the track's homestretch.
27. After the final race of the day, Mr. Sharp entered the first floor of the Clubhouse
facility, which is part ofthe large grandstand at Pimlico.
28. At the Clubhouse, he met a third friend, Kelli O'Neal. 29. While in the Clubhouse, Mr. Sharp observed Ms. Chyzhova being forcibly arrested by officers of the Baltimore Police Department. He got the attention of Mr. Dudek and suggested Dudek might want to intervene. Mr. Sharp then recorded video and audio of the
incident on his cell-phone camera
30. Pimlico's website advises that the items expressly permitted in the Clubhouse include "Cellular Phones, Cameras (up to 35mm), Camcorders and Binoculars."
31. Fixed security cameras in the Clubhouse also recorded video of the incident. At least one other person in the Clubhouse also recorded video and audio of the incident, and later posted this video on YouTube.

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32. When Mr. Dudek attempted to stop an officer from beating Ms. Chyzhova, he was arrested. He was later acquitted; his defense was supported in part by video of the incident recorded by Pirnlico's security cameras, described in Paragraph 30, above.

33. Several dozen other people in the Clubhouse also witnessed the incident

34. Unknown Police Officer No. I, who had seen Mr. Sharp recording with his cell phone, approached Mr. Sharp and repeatedly instructed him to surrender the phone to the police and told Mr. Sharp to remain quiet. Mr. Sharp politely declined the requests to surrender the phone.

35. Two other officers also approached Mr. Sharp and demanded that he surrender the cell phone to the police, but Mr. Sharp still declined.

36. Yet another officer then approached Mr. Sharp and told him the police needed to
review his videos and possibly make a coPY ofthem to be used as evidence. That officer, who is identified as the defendant Unknown Police Officer No. 2, further demanded that Mr. Sharp give him the phone.

37. Intimidated by the barrage of demands and fearing arrest ifhe continued to refuse
them, Mr. Sharp reluctantly surrendered his phone to Officer No. 2.

38. demand.

Officer No.2 ordered Ms. O'Neal to leave the Clubhouse; she complied with his

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39. Officer No. 2 ordered Mr. Sharp to remain in the Clubhouse with another police officer guarding him. The other police officer, who is identified as the defendant Unknown Police Officer No. 3, did not explain to Mr. Sharp why he was detaining him or for how long the
detention would last.
40. Officer No. 2 left the Clubhouse with Mr. Sharp's cell phone. 41. While Mr. Sharp was detained by Officer No. 3, he was unable to obtain an
explanation or justification for his detention from that officer or from other police officers at the scene-even after repeated requests.
42. Officer No. 1 told Mr. Sharp that if he would keep quiet, Officer No. 1 would answer Mr. Sharp's questions. But then, apparently not satisfied with plaintiff's level of silence,
Officer No. 1 turned around and walked away instead, leaving plaintiffin continued distress and fear of arrest.
43. Officer No. 3 informed Mr. Sharp only that, "they'll probably just erase it and give
it back," suggesting that this was a common practice for Baltimore police officers.
44. Eventually, Officer No. 2 returned to the Clubhouse with Mr. Sharp's cell phone and ordered him to leave the premises.
45. Before Mr. Sharp could leave the Clubhouse, another police officer requested Mr.
Sharp's government-issued identification and took notes from the identification before returning
it.

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46. As he left the Clubhouse at Pimlico, Mr. Sharp discovered that all of the videos on his phone, including two recordings ofthe beating and arrest of Ms. Chyzhova, had been erased. The phone also had been reset so that it permitted only emergency calls to be made.
47. The videos deleted by the police officers included not only the recordings that Mr. Sharp had made ofthe beating and arrest of Ms. Chyzhova, but also twenty or more other recordings, including recordings of his young son at sports events and parties and other recordings with great sentimental value.
48. Throughout this entire incident at the Preakness, Officers Nos. 1, 2, and 3 were on duty as employees of the Baltimore Police Department.
49. The Baltimore Police Department and Commissioner Bealefeld exert substantial control over the policies and practices that govern the actions of individual officers in the Baltimore Police Department.
50. .In exercising such control, the Baltimore Police Department and Commissioner Bealefeld have gathered knowledge of; or in fact created by implication or express instruction, a policy, practice, or custom within the Department to violate the constitutional rights of citizens by allowing the seizure of any devices used for the recording of officers in public places and by giving permission to delete the recordings.
51. In addition to losing irreplaceable videos, Mr. Sharp's suffered significant emotional trauma, humiliation, and distress as a result ofhis mistreatment by the Baltimore police.
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52. The Maryland Wrretap Act, Annotated Code of Maryland, Courts & Judicial Proceedings Article ("CJ") § 10-402, states in part that it is "unlawful for any person to willfully intercept ... any wire, oral, or electronic communication ...."
53. The Maryland Wrretap Act defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." CJ § 10-401(3).
54. The Maryland Wrretap Act defines "oral communication" as "any conversation or words spoken to or by a person in private conversation." CJ § 10-401(3) (emphasis added).
55. By its express terms, the Maryland Wrretap Act bars nonconsensual recording of oral communications only when the individual has a reasonable expectation ofprivacy in the recorded communications.
56. Law-enforcement officers conducting official business in a public place, such as the public area of the Clubhouse at Pimlico during the Preakness, lack a reasonable expectation of privacy in their statements made during the course of that business.
CLAIMS
Count I Section 1983 claim for violation of Mr. Sharp's free-speech rights, guaranteed by the
First and Fourteenth Amendments (All Defendants)
57. Mr. Sharp incorporates the allegations made in Paragraphs I to 51 of this complaint.
58. Mr. Sharp asserts this claim against each defendant, including Officers Nos. 1, 2, and 3 in both their official and personal capacities.
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59. Observing and recording public police activities, without interfering with those duties, is a legitimate means of gathering information for public dissemination and is therefore speech protected by the First Amendment to the United States Constitution.
60. By detaining Mr. Sharp, seizing his cell phone, and deleting videos on the phone,
Officers Nos. I, 2, and 3 retaliated against Mr. Sharp for his speech protected by the First
Amendment.
61. Officers Nos. 1, 2, and 3 acted under the Baltimore City Police Department's
policy, practice or custom when they detained Mr. Sharp in the Clubhouse, seized his cell phone,
searched the phone, and deleted videos stored on the device.
62. The Police Department and Commissioner Bealefeld caused these constitutional violations by implementing, following, or failing to remedy a policy, practice, or custom that encouraged the restriction of individnal's rights protected by the First Amendment. Moreover, in the absence ofjudicial intervention here, these defendants will continue to cause similar constitutional violations by implementing, following, or failing to remedy the illegal pattern or practice in the future.
63. Even ifthey were not acting in accordance with an official policy or practice of
the Baltimore Police Department, Officers Nos. I, 2, and 3 nonetheless violated Mr. Sharp's
rights guaranteed by the First Amendment when they detained him, seized his cell phone, searched its contents, and deleted videos from the device.
64. As a result of the defendants' retaliation against Mr. Sharp's constitutionally
protected speech, Mr. Sharp suffered damages including emotional trauma, humiliation, distress, and damage to personal property.
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65. Mr. Sharp has continued to make audio and video recordings of his son in public, but because Mr. Sharp now believes that officers of the Baltimore Police Department, and other
police departments in Maryland, apply the Maryland Wrretap Act's prohibitions or other
inappropriate charges to constitutionally protected recordings, Mr. Sharp has refrained from
making other audio and video recordings in the presence of police officers.
66. Mr. Sharp's speech protected by the First Amendment has therefore been chilled
by the defendants' policy of barring audio recordings ofpolice officers performing official duties in public.
Count II Violation of Mr. Sharp's free-speech rights guaranteed by Article 40
(Defendant Officers 1, 2 and 3)
67. Mr. Sharp incorporates the allegations made in Paragraphs 1 to 51 of this
complaint.
68. Mr. Sharp asserts this claim against each defendant.
69. The freedoms protected by Article 40 of the Maryland Declaration of Rights
includes the freedoms guaranteed by the First Amendment to the United States Constitution.
70. By detaining Mr. Sharp, seizing his cell phone, and deleting videos on the phone, Officers Nos. 1, 2, and 3 retaliated against Mr. Sharp for his speech protected by
Article 40.

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71. The Baltimore Police Department and Commissioner Bealefeld have enacted or perpetuated a policy, practice, or custom that encouraged such unconstitutional retaliation. The Baltimore Police Department and Commissioner Bealefeld have done so through explicit or implicit instruction to the officers within the Baltimore Police Department, or have acquired knowledge ofsuch a policy, practice, or custom and have not prevented its exercise.
72. As a result of the defendants' retaliation against Mr. Sharp's constitutionally protected speech, Mr. Sharp suffered damages including emotional trauma, humiliation, distress,
and damage to personal property.
73. Mr. Sharp's speech protected by Article 40 has been chilled by the defendants'
policy of applying the Maryland Wrretap Act to audio recordings of police officers performing official duties in public.
Countm Section 1983 claim for violation of Mr. Sharp's freedom from unreasonable searches and
seizures guaranteed by the Fourth and Fourteenth Amendments (All Defendants)
74. Mr. Sharp incorporates the allegations made in Paragraphs I to 51 of this
complaint
75. Mr. Sharp asserts this claim against each defendant, including Officers Nos. I, 2,
and 3 in both their official and personal capacities.
76. The Fourth Amendment to the United States Constitution protects Mr. Sharp
against unreasonable searches and seizures.
77. Acting without a warrant, Officers Nos. I, 2, and 3 detained Mr. Sharp and seized
his cell phone.
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78. Still acting without a warrant, Officer No. 2 searched Mr. Sharp's phone and
deleted videos stored on the device.
79. Because the officers had no warrant or recognized justification for their
warrantless search and seizure of Mr. Sharp's cell phone and the videos stored on the device, the officers' actions violated Mr. Sharp's rights guaranteed by the Fourth Amendment to be free from
unreasonable searches and seizures
80. The Baltimore Police Department and Commissioner Bealefeld caused these constitutional violations by enacting or perpetuating a policy, practice, or Cl,lstom that encouraged or allowed officers to improperly seize and destroy personal property without a warrant.
81. As a result ofthe defendants' violation of Mr. Sharp's right to be free from unreasonable searches and seizures, Mr. Sharp suffered damages including emotional trauma,
humiliation, distress, and damage to personal property.
82. Mr. Sharp has continued to make audio and video recordings of his son in public, but because Mr. Sharp now believes that officers of the Baltimore Police Department, and other
police departments in Maryland, apply the Maryland Wuetap Act's prohibitions to recordings not covered by the Act, Mr. Sharp believes he will again be subject to unjustified harassment, detentions, searches, or seizures if he video tapes in the presence of police officers in the future.
Count IV Violation of Mr. Sharp's right guaranteed by the Fourteenth Amendment to be free from
deprivation of property without due process (All Defendants)
83. Mr. Sharp incorporates the allegations made in Paragraphs 1 to 51 ofthis
complaint.
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84. Mr. Sharp asserts this claim against each defendant.

85. The Fourteenth Amendment of the United States Constitution protects Mr. Sharp
against deprivation of his property by state or local governments without notice and an opportunity to be heard.

86. The Baltimore Police Department and Commissioner Bealefeld enacted or perpetuated a policy, practice, or custom that authorizes the seizure and destruction ofpersonal property without notice or an opportunity to be heard.

87. Officers Nos. I, 2, and 3 permanently deprived Mr. Sharp of his personal property when they deleted videos from Mr. Sharp's cell phone.

88. occurred.

Mr. Sharp was afforded no opportunity to contest these deletions before they

89. All defendants thus violated Mr. Sharp's right to pre-deprivation process
guaranteed by the Fourteenth Amendment of the United States Constitution.

90. As a result of the defendants' violation of Mr. Sharp's property, Mr. Sharp
suffered damages including emotional trauma, humiliation, distress, and damage to personal property.

CountV Violation of Mr. Sharp's freedom from unreasonable searches and seizures guaranteed by
Article 26 (Defendant Officers I, 2 and 3)
9 I. Mr. Sharp incorporates the allegations made in Paragraphs 1 to 51 of this
complaint.

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;

92. Mr. Sharp asserts this claim against each defendant, including Officers Nos. 1, 2, and 3 in both their official and personal capacities.
93. Article 26 ofthe Maryland Declaration of Rights protects the same freedoms guaranteed by the Fourth Amendment to the United States Constitution.
94. Becanse the officers had no warrant or recognized justification for their warrantless search and seizure of Mr. Sharp's cell phone and the videos stored on the device, the officers' actions violated Mr. Sharp's right guaranteed by Article 26 to be free from unreasonable searches and seizures
95. The actions ofthe Baltimore Police Department and Commissioner Bealefeld caused these constitutional violations by enacting or perpetuating a policy, practice, or custom that encouraged officers to improperly seize and destroy personal property without a warrant.
96. As a result of the defendants' violation of Mr. Sharp's right to be free from unreasonable searches and seizures, Mr. Sharp suffered damages including emotional trauma, humiliation, distress, and damage to personal property.
Count VI Violation of Mr. Sharp's right guaranteed by Article 24 to be free from deprivation of
property without due process (Defendant Officers 1, 2 and 3) 97. Mr. Sharp incorporates the allegations made in Paragraphs 1 to 51 of this complaint.
98. Mr. Sharp asserts this claim against Officers Nos. I, 2, and 3.

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99. Article 24 of the Maryland Declaration of Rights protects the same freedoms guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
100. Article 24 protects Mr. Sharp against deprivation ofhis property without notice
and an opportunity to be heard.
101. Officers Nos. 1, 2, and 3 permanently deprived Mr. Sharp ofhis personal property when they deleted videos from Mr. Sharp's cell phone.
102. Mr. Shmp was afforded no opportunity to contest these deletions before they occmred.
103. Officers Nos. 1, 2, and 3 thus violated Mr. Shmp's right to pre-deprivation process
guaranteed by Article 24 of the Maryland Declaration of Rights.
104. As a result of the defendants' violation of Mr. Shmp's to property, Mr. Sharp
suffered damages including emotional trauma, humiliation, distress, and damage to personal property.
CountVll False imprisonment (Defendant Officers 1, 2 and 3)
105. Mr. Sharp incorporates the allegations made in Paragraphs 1 to 51 of this
complaint.
106. Mr. Shmp asserts this claim against Officers Nos. 1, 2, and 3.

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107. Officers Nos. 1, 2, and 3, through their statements and acts, intimidated Mr. Sharp
into remaining in the Clubhouse under the officers' control and into surrendering his cell phone for search.
108. The officers' repeated demands after Mr. Sharp had watched officers beat and
arrest Ms. Chyzhova, and arrest Mr. Dudek after he tried to assist Ms. Chyzhova, left Mr. Sharp fearful that he also would be arrested if he did not comply with the officers' demands.
109. The officers' implicit threat of arrest or use of other force compelled Mr. Sharp to
remain with an officer, where he did not want to be. A reasonable person would not have felt free to leave the Clubhouse or to refuse the officers' demands to surrender the cell phone.
110. The officers' implied threat ofarrest lacked any legal justification and was
therefore an impermissible restraint of Mr. Sharp's liberty. Ill. As a result of the defendants' tortious acts, Mr. Sharp suffered damages including
emotional trauma, humiliation, distress, and damage to personal property.
CountVIll Conversion (Defendant Officers 1, 2 and 3) 112. Mr. Sharp incorporates the allegations made in Paragraphs 1 to 51 ofthis complaint. I 13. Mr. Sharp asserts this claim against Officers Nos. I, 2, and 3. 114. Officers Nos. 1, 2, and 3 destroyed Mr. Sharp's personal property when they deleted videos from Mr. Sharp's cell phone.
115. Mr. Sharp did not grant the officers permission to delete his videos.
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116. No provision of law authorized the officers to delete Mr. Sharp's videos.
117. By deleting the videos, the officers wrongfully assumed possession of them, or
used or exercised ownership over them, without Mr. Sharp's authorization.
118. Officers Nos. I, 2, and 3 acted with intent to injure Mr. Sharp, with ill will or spite
towards him, with evil or fraudulent motives, or with knowledge that they were violating his property rights.
119. As a result of the defendants' tortious acts, Mr. Sharp suffered damages including emotional trauma, humiliation, distress, and damage to personal property.
Count IX
Invasion of privacy
(Defendant Officers I, 2 and 3)
120. ·Mr. Sharp incorporates the allegations made in Paragraphs I to 51 ofthis
complaint.
121. Mr. Sharp asserts this claim against Officers Nos. I, 2, and 3.
122. Mr. Sharp had an expectation of privacy in the contents of his cell phone.
123. By seizing Mr. Sharp's cell phone and searching its contents, Officers Nos. I, 2, and 3 intruded on that privacy.
124. The officers' intrusion would be higbly offensive to a reasonable person.
125. Officers Nos. I, 2, and 3 acted with intent to injure Mr. Sharp, with ill will or spite
towards him, with evil or fraudulent motives, or with knowledge that they were violating his rights to privacy in the contents of his cell phone.

22

' ·-

Case 1:11-cv-02888-BEL Document 2 Filed 10/11/11 Page 23 of 26

126. As a result of the defendants' tortious acts, Mr. Sharp suffered damages including
emotional trauma, humiliation, distress, and damage to personal property.
JURY DEMAND Mr. Sharp respectfully requests a jury trial.

PRAYER FOR RELIEF Mr. Sharp respectfully requests the following relief:

a

Declaratory judgment that:

(1) Mr. Sharp's recordings at the Preakness were acts of speech
protected by the First Amendment to the United States Constitution because they were recordings of on-duty police officers' acts and statements that were made in public and that concerned official police activities;

(2) The Maryland Wuetap Act does not make it unlawful to engage in this act of speech; and

(3) When Officers Nos. 1, 2, and 3 retaliated against Mr. Sharp's
speech by detaining him, seizing his cell phone, and deleting videos on the phone, they infringed upon his right to free speech guaranteed by the First Amendment and Article 40 of the Maryland Declaration of Rights, as well as and his right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment and Article 26;

23

. - - - - - - - - - - - - - - - - - - - ----- --
Case 1:11-cv-02888-BEL Document 2 Filed 10/11/11 Page 24 of 26
b. A permanent injunction that bars the defendants and employees of the Baltimore Police Department from retaliating against or otherwise punishing anyone who makes audio recordings of police officers performing official duties in public; and
c. Compensatory damages for the emotional trauma, humiliation, distress, and damage to personal property that Mr. Sharp suffered from the acts of Officers Nos. I,
2, and 3. (1) These acts were carried out under the auspices of a policy or
pmctice ofthe Baltimore Police Department and Commissioner Bealefeld. Thus,
for the violations of Mr. Sharp's fedeml constitutional rights, Mr. Sharp seeks
damages against the Baltimore Police Department and against Officers Nos. 1, 2, and 3 as well as Commissioner Bealefeld in their official capacities; damages sought are joint and several, in an amount to be determined at trial;
(2) In the alternative, for the violations of Mr. Sharp's federal constitutional rights, Mr. Sharp seeks damages against Officers Nos. 1, 2, and 3 in
their personal capacities; damages sought are joint and several, in an amount to be determined at trial.
(3) For the violations of Mr. Sharp's state-constitutional and commonlaw rights, Mr. Sharp seeks damages from Officers Nos. I, 2, and 3,jointly and
severally liable, in an amount to be determined at trial. d. In accordance with 42 U.S.C. § 1988, an award for costs, expenses, and attorneys' fees; and e. Any other relief as this honorable Court may deem just and deserving.
24

Case 1:11-cv-02888-BEL Document 2 Filed 10/11/11 Page 25 of 26

This 29th day ofAugust, 2011
Mary E. Borja mbmja@wi1eyrein.com Benjamin Kohr bkohr@wileyrein.com Wuey Rein LLP 1776 K Street, NW Washington, D.C. 20006 202-719-7000 (phone) 202-719-7049 (fax)
OfCounsel

Mneric;an Civil Liberties Union of Maryland Clipper Mill Road
Suite 350 Baltimore, MD 21211 410-889-8555 (phone) 410-366-7838 (fax)
Richard A. Simpson rsimpson@wileyrein.com Craig Smith csmith@wileyrein.com Wiley Rein LLP 1776 K Street, NW Washington, D.C. 20006 202-719-7000 (phone) 202-719-7049 (fax)
Counsel for PlaintiffChristopher Sharp

I, Richard A. Simpson, certify, under Rule 1-313, law in the State of Maryland

25

Case 1:11-cv-02888-BEL Document 2 Filed 10/11/11 Page 26 of 26
:
CERTIFICATE OF SERVICE I, Craig Smith, certify that on August 29,2011, I served the attached complaint by U.S. mail upon the following defendants:
Baltimore Police Department, c/o 242 W. 29th Street Baltimore, MD 21211-2908 Frederick H. Bealefeld, ill, c/o 242 W. 29th Street Baltimore, MD 21211-2908
26

Case 1:11-cv-02888-BEL Document 2-1 Filed 10/11/11 Page 1 of 3 ''

2.!11

CIVIL-

REPORT

Plaintiff: 17ris lnfonnation Report must he completed and
your case is exemptedfrom the nquirement by the ChiefJudge copy must be indudedfM eaclr defendant to bese~

anached to the complaintfiled
ofthe Court ofAppeals pumm

with nt 10

the llu

Ckrk o/Co h 2-11/(a).

rut

Defendant: You mustfile an Information Report as required by Rule 1-JZJ(h}.

~i.UfuJ~L..__---1

Malpractice Death
Commercial & Slander
Prosecution Paint

Comp. Diseharge
Judgment PROPERTY
Rights

Actual Damages
B. CONTRACTS Under $10,000 $10,000- $20,000 Over $20,0000

0 Medical Bills
$
0 Property Damages
$
OwageLoss $

this

case

appropriate forllferrai,!!!Jm ADR
A. Mediation DYes 1!9 No
B. Arbitration 0Yes{g)No

process

under

Md. Rule 17-101? (Check J!ll.that 'JlllllY) C. Settlement Conference OYes ll9 No D. Neutral Evaluation 0Yes{g)No

1With

''"" exception ofBaltimore County and Ballimore City, please CASE WILL T.mN BE TRACKED ACCORDING~

jill

in

the

estimated

LENGTH

OF

TRIAL

1/2 day of trial or less

3 days of trial time

J day oftrial time 2 days oftrial lime

More lhan 3 days"'"'""''-·

·"'·-

Case 1:11-cv-02888-BEL Document 2-1 Filed 10/11/11 Page 2 of 3

For aUjurisdictions, if Business ami Tecluwlog}' track designation under Mil Rule 16-105 is requat~~ attach a dupiJCtlle

copy ofcomplllinJ and check one ofthe tracks below.

0

0

Expedited Trial within 7 months

Standard Trial within 18months ·

of filing

of Filing

0 EMERGENCY RELIEF REQUESTED

0 Standard- Trial within 18 months of Filing

IN BAL11MORE CITY, PRINCE GEORGE'S COUNTY, OR BALTIMORE BOX BELOW.
CIRCUIT COURT FOR BALTIMORE CITY (CHECK ONLY ONE)

0 Expedited 0 Standard-Short
liJ Standard 0 LeadPaint 0 Asbestos 0 Proln!cted Cases

Trial60 to 120 days from notice. Non-jury matter.;. Trial210 days. Trial360days. Fill in: Birth Date of youngest plaintiff_ _ _ _ __ Events and deadlines set by individual judge. Complex cases designated by the Administrative Judge.

CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY

0 Uability is conceded. 0 Liability is not conceded, but is not seriously in dispute. 0 Liability is seriously in dispute.

CCIDCM 002 (Rev. 2/2010)

Page 2 of3

Case 1:11-cv-02888-BEL Document 2-1 Filed 10/11/11 Page 3 of 3

CIRCUIT COURT FOR BALTIMORE COUNTY

0 Expedited
(frial Date-90 days)
0 Standanl
(frial Date-240 days)
0 Extended Standanl
(frial Date-345 days)
0 Complex
(frial Dote-450 days)

Attachment Before Judgment, Declaratory Judgment (Simple}, Administrative Appeals, District Court Appeals and Jury Trial Prayers, Guardianship, Injunction, Mandamus.
Condemnation, Confessed Judgments (Vacated), Contract, Employment Related Coses, Froud and Misrepresentatio~ International Tort, Motor Tort, Other Per.;onaJ Injury, WorkerS Compensation Cases.
Asbestos, Lender Liability, Professional Malpractice, Serious MotOT Tort or Pmonal Injury Cases (medical expenses and wage loss of$100,000, expert and out-of-state witnesses (parties), and trial of five or more days)~ State Insolvency.
Class Actions, Designated Toxic Tort, Major Conslructioo Contracts. Mf!:ior Product Liabilities. Other Complex Cases.

CC/DCM 002 (Rev. 212010)

Page 3 of3

 
 Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

Chambers of BENSON EVERETT LEGG
United States District Judge

February 17, 2012

101 West Lombard Street Baltimore, Maryland 21201
410-962-0723

MEMORANDUM TO COUNSEL RE: Sharp v. Baltimore City Police Dept. et al.

Civil

No. L-11-2888

Dear Counsel:

Christopher Sharp filed this action under 42 U.S.C. § 1983. He asserts claims against

three unidentified Baltimore Police Department (“BPD”) officers who allegedly seized his cell

phone and erased all of its video content, including personal videos and footage he took of an

arrest at the 2010 Preakness. Defendants Bealefeld, who has been sued in his official capacity,

and the BPD (collectively “the BPD”) have moved to dismiss or for partial summary judgment.

Docket No. 20. The Court heard oral argument on February 13, 2012. For the reasons stated on

the record, the motion is DENIED, and the case shall proceed to discovery. The merits of

Sharp’s claims shall again be tested at the summary judgment stage once the evidentiary record

has been developed.

The First Amendment generally protects the right of citizens to take photographs and

videos in public places. The parties agree that this right extends to photos and videos of police

officers discharging their official duties, but the exercise of the right may be limited by reasonable time, place, and manner restrictions.1 Any right not to have one’s picture taken in

public, if such a right in fact exists, does not extend to police officers who are performing their

1 With a possible exception, the analysis of the State constitutional claims, which are brought only against the individual officers, is the same as the analysis of the U.S. constitutional claims. It is an open question whether the right to record police officers conducting their official duties in public is more firmly established under Maryland state court precedent than it is under Fourth Circuit precedent.
1

Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 2 of 4
official duties. The Fourth Amendment requires police to obtain a warrant before seizing or searching a
citizen’s camera or cell phone, unless an exception to the warrant requirement applies. One such exception occurs when the property owner voluntarily consents to the search or seizure. In this case, a factual dispute exists as to whether Sharp voluntarily surrendered his cell phone or whether he was coerced. Other exceptions to the warrant requirement (e.g., to preserve evidence) may exist, but it remains to be determined whether they apply to this case.
The Fourteenth Amendment prevents the Government from permanently depriving a citizen of his property without due process of law, which generally requires notice and an opportunity for the citizen to be heard. Although this issue is not foreclosed, the BPD has not asserted a legitimate reason for deleting Sharp’s videos, whether the video of the arrest or his personal videos. If Sharp can prove a violation, he may be entitled to damages.
There also exists a factual dispute as to whether the BPD promulgated or was deliberately indifferent to an illegal “policy, custom, or usage.” See Monell v. Dept. of Social Servs. of the City of New York, 436 U.S. 658 (1978).
Sharp has requested the Court to issue an injunction that prohibits future violations. The BCD, without conceding liability or acknowledging the existence of a constitutional right, has adopted a policy recognizing a citizen’s right to record the police at work and a program to train officers on the policy. Because the policy, General Order J-16, was made public on February 10, 2012, Sharp and his counsel have not yet had time to review the policy to determine whether it includes the relief that they are requesting. The BCD contends that General Order J-16 moots Sharp’s claim for injunctive relief, but, as mentioned, the policy was not issued in time to be considered at the hearing on February 13th. Moreover, Sharp’s counsel argued, on the basis of
2

Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 3 of 4
recent violations, that the policy is not being followed. Accordingly, the policy may not moot Sharp’s claim for injunctive relief.
The Court’s normal practice in Section 1983 cases involving the police is to separate the plaintiff’s claims against the individual officers from the Monell claims against the police department. The individual claims are resolved first. Whether the plaintiff wins or loses, resolution of his individual claims against the officers normally makes resolution of the Monell claims unnecessary. The instant case may present an exception to this rule. The Court deems defendants to have moved to bifurcate. Briefing on the motion shall not be necessary unless the Court specifically requires it.
Counsel shall meet and confer and submit a discovery plan and proposed schedule to the Court by February 27, 2012. Although the scope of phase one discovery remains to be determined, the Court considers the following subjects to be fair game.
(i) The depositions of Sharp, Dudek, Chyzhova, the unnamed officers, and any bystanders or witnesses who were present during the incident at the 2010 Preakness;
(ii) Whether the officer who erased the videos from Sharp’s cell phone sought technical assistance;
(iii) A deposition of the person primarily responsible for writing General Order J-16; (iv) The training program to inform officers regarding General Order J-16; (v) Information relating to the Scott Cover incident, which occurred at the Cross Street
market in the early hours of Saturday, February 11th; (vi) Other alleged violations of General Order J-16 since it was adopted in November
2011; (vii) The unnamed officers’ understanding of the Maryland Wiretap Act and any directives
3

Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 4 of 4 from the BPD regarding the Act’s interpretation; and
(viii) Pre-General Order J-16 BPD policies and directives of any kind related to video recordings by citizens of police activity.
Counsel shall also advise the Court by February 27th whether the unnamed officers have been identified and who will be representing them.
Despite the informal nature of this memorandum, it shall constitute an Order of the Court and the Clerk is directed to docket it accordingly.
Very truly yours, /s/
__________________________ Benson Everett Legg
4

 
 Case 1:11-cv-02888-BEL Document 75 Filed 11/13/12 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

Chambers of BENSON EVERETT LEGG
United States District Judge

November 13, 2012

101 West Lombard Street Baltimore, Maryland 21201
410-962-0723

MEMORANDUM TO COUNSEL RE: Sharp v. Baltimore City Police Dept. et al.

Civil

No. L-11-2888

Dear Counsel:

Plaintiff Christopher Sharp attended the 2010 Preakness Stakes, one of the Triple Crown

horse races. While he was in the clubhouse, Sharp used his cell phone to video record officers of

the Baltimore City Police Department (“BPD”) making an arrest of an inebriated woman. In his

Complaint, Sharp sues three BPD officers, alleging that they confiscated his cell phone, erased

the arrest recording (as well as family videos), then returned the phone to him. Sharp also sued

the BPD, contending that the officers’ actions were consistent with departmental practice, policy

and procedure.

Sharp cannot identify the three officers who confiscated his cell phone. His Complaint,

which he filed under 42 U.S. C. § 1983, names the three officers as Unknown Officers 1–3.

Sharp’s inability to identify the officers is significant because in order to establish liability under

42 U.S.C. § 1983, Sharp must show that the unnamed officers “personally caused the deprivation of his federal rights.”1 Johnson v. Prince George’s Ctny., 157 F. Supp. 2d 607, 609 (D. Md.

2001) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)); see also Waybright v. Frederick

Cnty., 528 F.3d 199, 203 (4th Cir. 2008).

1 Although there appear to be limited exceptions to this requirement, see, e.g., Brown v. Prince George’s Cnty., No. DKC 07–2591, 2012 WL 3012573, at *6 (D. Md. July 20, 2012) (Fourth Amendment excessive force case), whether such an exception might apply under the circumstances presented here is far from clear. The Court takes no position on the issue, which has not been briefed.
1

Case 1:11-cv-02888-BEL Document 75 Filed 11/13/12 Page 2 of 3
Because of the importance of the issue, the Court staged discovery, reserving the first phase for information that might assist Sharp in naming the officers. To that end, the Court, inter alia, ordered the BPD to produce a Federal Rule of Civil Procedure 30(b)(6) witness who would not only produce documents, but also testify about the BPD’s record-keeping practices concerning officers who work the Preakness.
Although documents have been produced and depositions have been taken, discovery has bogged down. Based on the documents he has received so far, Sharp remains unable to identify the three officers. Seeking more information, he contends that the BPD has failed to offer a satisfactory explanation for gaps in its document production. The BPD contends that it has fully complied with its discovery obligations and that there is nothing else it can provide that might assist Sharp in identifying the officers.
In order to hold down litigation costs, the Court has tightly controlled discovery, limiting the number of depositions and tailoring the document requests. After hearing from both sides during the latest teleconference (November 7, 2012), the Court determined that an evidentiary hearing is required to break the impasse. The hearing, which should take a morning, will address the completeness of the BPD’s document production.
During the teleconference, the Court carefully delineated the topics to be covered and the witnesses who must testify. The general scope of the hearing is to (i) identify records and witnesses potentially useful to Sharp in identifying the three officers, and (ii) ascertain whether there are gaps in the production. Without limiting the scope of the hearing, the topics to be covered will include:
1. The security plan for the 2010 Preakness, including: i. how the plan was developed,
2

Case 1:11-cv-02888-BEL Document 75 Filed 11/13/12 Page 3 of 3
ii. the interaction between the BPD and private Preakness security, iii. the chain of command, iv. which officers were stationed at the clubhouse, including where and at
what times the officers were stationed there, and v. what documents were created. The BPD will produce Lt. Corbett, its Rule 30(b)(6) witness, who will testify concerning the records that it keeps and does not keep regarding the Preakness. Lt. Corbett must be prepared to address the discovery issues raised by Sharp. Sharp will subpoena Lt. Blair (ret.) and a representative of the Maryland Jockey Club or other group conversant with security at the 2010 Preakness. My chambers will be in touch with counsel to schedule a hearing date. Despite the informal nature of this memorandum, it shall constitute an Order of the Court and the Clerk is directed to docket it accordingly.

Benson United

Very truly yours,
/s/ __________________________
Everett Legg States District Judge

3

 
 Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

Chambers of BENSON EVERETT LEGG
United States District Judge

February 17, 2012

101 West Lombard Street Baltimore, Maryland 21201
410-962-0723

MEMORANDUM TO COUNSEL RE: Sharp v. Baltimore City Police Dept. et al.

Civil

No. L-11-2888

Dear Counsel:

Christopher Sharp filed this action under 42 U.S.C. § 1983. He asserts claims against

three unidentified Baltimore Police Department (“BPD”) officers who allegedly seized his cell

phone and erased all of its video content, including personal videos and footage he took of an

arrest at the 2010 Preakness. Defendants Bealefeld, who has been sued in his official capacity,

and the BPD (collectively “the BPD”) have moved to dismiss or for partial summary judgment.

Docket No. 20. The Court heard oral argument on February 13, 2012. For the reasons stated on

the record, the motion is DENIED, and the case shall proceed to discovery. The merits of

Sharp’s claims shall again be tested at the summary judgment stage once the evidentiary record

has been developed.

The First Amendment generally protects the right of citizens to take photographs and

videos in public places. The parties agree that this right extends to photos and videos of police

officers discharging their official duties, but the exercise of the right may be limited by reasonable time, place, and manner restrictions.1 Any right not to have one’s picture taken in

public, if such a right in fact exists, does not extend to police officers who are performing their

1 With a possible exception, the analysis of the State constitutional claims, which are brought only against the individual officers, is the same as the analysis of the U.S. constitutional claims. It is an open question whether the right to record police officers conducting their official duties in public is more firmly established under Maryland state court precedent than it is under Fourth Circuit precedent.
1

Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 2 of 4
official duties. The Fourth Amendment requires police to obtain a warrant before seizing or searching a
citizen’s camera or cell phone, unless an exception to the warrant requirement applies. One such exception occurs when the property owner voluntarily consents to the search or seizure. In this case, a factual dispute exists as to whether Sharp voluntarily surrendered his cell phone or whether he was coerced. Other exceptions to the warrant requirement (e.g., to preserve evidence) may exist, but it remains to be determined whether they apply to this case.
The Fourteenth Amendment prevents the Government from permanently depriving a citizen of his property without due process of law, which generally requires notice and an opportunity for the citizen to be heard. Although this issue is not foreclosed, the BPD has not asserted a legitimate reason for deleting Sharp’s videos, whether the video of the arrest or his personal videos. If Sharp can prove a violation, he may be entitled to damages.
There also exists a factual dispute as to whether the BPD promulgated or was deliberately indifferent to an illegal “policy, custom, or usage.” See Monell v. Dept. of Social Servs. of the City of New York, 436 U.S. 658 (1978).
Sharp has requested the Court to issue an injunction that prohibits future violations. The BCD, without conceding liability or acknowledging the existence of a constitutional right, has adopted a policy recognizing a citizen’s right to record the police at work and a program to train officers on the policy. Because the policy, General Order J-16, was made public on February 10, 2012, Sharp and his counsel have not yet had time to review the policy to determine whether it includes the relief that they are requesting. The BCD contends that General Order J-16 moots Sharp’s claim for injunctive relief, but, as mentioned, the policy was not issued in time to be considered at the hearing on February 13th. Moreover, Sharp’s counsel argued, on the basis of
2

Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 3 of 4
recent violations, that the policy is not being followed. Accordingly, the policy may not moot Sharp’s claim for injunctive relief.
The Court’s normal practice in Section 1983 cases involving the police is to separate the plaintiff’s claims against the individual officers from the Monell claims against the police department. The individual claims are resolved first. Whether the plaintiff wins or loses, resolution of his individual claims against the officers normally makes resolution of the Monell claims unnecessary. The instant case may present an exception to this rule. The Court deems defendants to have moved to bifurcate. Briefing on the motion shall not be necessary unless the Court specifically requires it.
Counsel shall meet and confer and submit a discovery plan and proposed schedule to the Court by February 27, 2012. Although the scope of phase one discovery remains to be determined, the Court considers the following subjects to be fair game.
(i) The depositions of Sharp, Dudek, Chyzhova, the unnamed officers, and any bystanders or witnesses who were present during the incident at the 2010 Preakness;
(ii) Whether the officer who erased the videos from Sharp’s cell phone sought technical assistance;
(iii) A deposition of the person primarily responsible for writing General Order J-16; (iv) The training program to inform officers regarding General Order J-16; (v) Information relating to the Scott Cover incident, which occurred at the Cross Street
market in the early hours of Saturday, February 11th; (vi) Other alleged violations of General Order J-16 since it was adopted in November
2011; (vii) The unnamed officers’ understanding of the Maryland Wiretap Act and any directives
3

Case 1:11-cv-02888-BEL Document 33 Filed 02/17/12 Page 4 of 4 from the BPD regarding the Act’s interpretation; and
(viii) Pre-General Order J-16 BPD policies and directives of any kind related to video recordings by citizens of police activity.
Counsel shall also advise the Court by February 27th whether the unnamed officers have been identified and who will be representing them.
Despite the informal nature of this memorandum, it shall constitute an Order of the Court and the Clerk is directed to docket it accordingly.
Very truly yours, /s/
__________________________ Benson Everett Legg
4

 
 Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 1 of 13

CHAMBERS OF SUSAN K. GAUVEY U.S. MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
101 WEST LOMBARD STREET BALTIMORE, MARYLAND 21201 MDD_skgchambers@mdd.uscourts.gov
(410) 962-4953 (410) 962-2985 - Fax

March 1, 2013

Deborah A. Jeon, Esq. American Civil Liberties Union of Maryland Foundation 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211
Mary E. Borja, Esq. Benjamin J. Kohr, Esq. Craig Michael Smith, Esq. Richard A. Simpson, Esq. Wiley Rein LLP 1776 K. Street, N.W. Washington, DC 20006
Mark H. Grimes, Esq. Baltimore Police Department Office of Legal Affairs 601 E. Fayette Street Baltimore, MD 21202
Christopher Russell Lundy, Esq. Daniel C. Beck, Esq. Daniel J. Sparaco, Esq. Baltimore City Law Department 100 N. Holliday Street, Room 101 Baltimore, MD 21202
Lindsay Cohn Cooper, Esq. Law Department 100 N. Holliday Street, Room 106 Baltimore, MD 21201

1

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 2 of 13
Rashida Jamila Ogletree, Esq. Samantha Kay Trepel, Esq. United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Re: Christopher Sharp v. Baltimore City Police Department, et al, Civil No. CCB-11-2888
Dear Counsel:
This is a civil rights action under 42 U.S.C. §1983 in
which plaintiff alleges that police officers seized his cell
phone and deleted a video recording of a police officer
arresting a woman at the Preakness Clubhouse in May 2010.
Plaintiff filed this motion to quash subpoena and for
protective order, asking the Court to issue a protective order:
(1) barring defendants from serving a subpoena requesting
plaintiff’s medical records from a 2007 hair follicle test, (2)
limiting the Laurel Park subpoena to documents related to the
May 2010 incident,(3) denying discovery of cell phone records,
and (4) barring defendants from contacting plaintiff’s family
and friends.1 Plaintiff asserts that defendants are seeking the
1 Plaintiff also complains about defendant’s refusal to provide his counsel with copies of documents the defendants received as a result of their apparently earlier subpoenas. (ECF No. 65, 2). There is some question as to whether the defendants complied with the notice requirements of Fed. R. Civ. P. 45(b)(1). It is not necessary to the disposition of the pending motion to resolve this. There is an absolute requirement of notification of service of subpoenas and failure to do same undermines the fair and orderly discovery process. While Fed. R. Civ. P. 45 only requires that a party provide the opposing party notice of a subpoena, not the documents themselves, see Fed. R. Civ. P. 45(b)(1), it is the better practice – indeed the professional practice - to provide copies, rather than requiring the opposing party to
2

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 3 of 13
information in an attempt to embarrass and harass him, that the information lacks relevance and that defendants’ need for the information is outweighed by the harm to him. Defendants counter that the information sought is relevant to plaintiff’s competency and credibility as a witness in the case, and that plaintiff has failed to demonstrate the requisite “good cause” for the relief he seeks under the federal rules.
For the reasons set forth below, this Court GRANTS in part and DENIES in part plaintiff’s motion to quash subpoena and for protective order. (ECF No. 57).
Governing Law Rule 26 governs the discovery sought here. Under Rule 26(b), “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . . Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Under Rule 26(b), it is “relevance not admissibility” that drives the inquiry as to whether information is discoverable. Herchenroeder v. Johns Hopkins Univ. Applied Physics Lab., 171 F.R.D. 179, 181 (D. Md. 1997) (emphasis in original). However, if information would be
issue its own subpoena, unnecessarily burdening that third party again and unnecessary putting the opposing party to expense and possible delay in the case.
3

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 4 of 13
inadmissible at trial, the proponent must establish that discovery of the information is reasonably calculated to lead to admissible evidence. Equal Rights Center, et al. v. ArchstoneSmith Trust, et al., 251 F.R.D. 168, 170 (D. Md. 2008). But, as the Fourth Circuit has recognized “[e]ven assuming that [] information is relevant (in the broadest sense), the simple fact that requested information is discoverable under Rule 26(a) does not mean that discovery must be had.” Nicholas v. Wyndham Int’l, Inc. 373 F.3d 537, 543 (4th Cir. 2004).
Moreover, under Rule 26(c), the Court may issue a protective order “for good cause. . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” In order to obtain a protective order, the moving party must demonstrate “that the discovery sought lacks relevance to the extent that the likelihood and severity of the harm or injury caused. . . outweighs any need for the information.” Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006) (citations and quotations omitted). Indeed, “even very slight inconvenience may be unreasonable if there is no occasion for the inquiry and it cannot benefit the party making it.” Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2036. The burden is on the movant to establish good cause under Rule 26(c); the movant must set forth specific and
4

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 5 of 13
particular facts, rather than broad conclusory statements as to why a protective order should issue. Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006).
Finally, “Rule 26(c) confers broad discretion on the trial Court to decide when a protective order is appropriate and what degree of protection is required.” Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006) (citations and quotations omitted); see also Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2036 (“The rules. . . permit the broadest scope of discovery and leave it to the enlightened discretion of the district court to decide what restrictions may be necessary in a particular case.”)
Using these principles as a guide, the Court shall discuss each category of the disputed discovery in turn.
Medical Records: Hair Follicle Test On August 1, 2012, defendants advised plaintiff of their intent to subpoena plaintiff’s medical records concerning a hair follicle test ordered by the Circuit Court of Baltimore County in 2007. Plaintiff claims that this information is not relevant to the case and will not lead to admissible evidence. Additionally, plaintiff claims that defendants are seeking the information in an attempt to intimidate, harass, and embarrass plaintiff. Defendants claim that “whether or not Plaintiff is a
5

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 6 of 13
drug addict is absolutely material to his competency as a witness” and that plaintiff’s “credibility, perception, and ability to remember the facts are relevant within the meaning of FRCP 26(b)(1).”
With respect to this disputed discovery, this case is similar to A Helping Hand v. Baltimore County, 295 F. Supp. 2d 585 (D. Md. 2003). In that case, the judge issued a protective order preventing discovery of medical records of the patient’s drug and alcohol treatment program because the harm caused by producing the information outweighed the need for the information. Id. at 592-93. The Court stated that given the sensitive nature of medical information, especially information involving drug use, “discovery involving this information is almost certain to involve ‘annoyance, embarrassment, oppression, or undue burden or expense’” under FRCP 26(c). Id. at 592. The Court went on to state that “it is not clear that the defendants need” the medical information in order to defend the suit. Id. at 592. In this case, plaintiff has set out specific harms that will come of discovery into his medical records: it would cause him embarrassment; it is an attempt to pressure him to abandon his suit; and it may prevent evenhanded review of his case. Defendants fail to demonstrate that discovery of plaintiff’s medical records is warranted. Even if the hair follicle test
6

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 7 of 13
indicated that there were drugs in plaintiff’s system in 2007 – some three years before the subject incident, the Court fails to see the relevance to the case, but certainly sees that such a request could be viewed as an attempt to intimidate. The defendants protest that “[w]hether or not the Plaintiff is a drug addict is absolutely material to his competency as a witness.” (ECF No. 63, 1). However, defendants provide no facts supporting any impairment of plaintiff by drugs on the day of the incident, nor any authority that wide ranging discovery into a party’s life and personal attributes is discoverable under Rule 26 to probe “credibility, perception and ability to remember the facts.” (ECF No. 63, 1). The rules of discovery do not sanction a broad sweep into the lives of parties – a veritable witch hunt – in the hopes of uncovering some “dirt.” “[R]elevancy under the federal rules is very broadly defined. Nonetheless, it is not unlimited, and may not unnecessarily intrude into the private matters of the parties.” Avianca v. Corriea, 705 F.Supp 666, 677 (D.D.C 1989). Plaintiff’s past possible drug use is not at issue in this case. Accordingly, discovery of these medical records is prohibited and the subpoena is quashed.
Employment Records On July 18, 2012, defendants served a subpoena on Laurel
7

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 8 of 13
Park race track, where plaintiff was employed until almost a year before the May 15, 2010 incident, for all records regarding plaintiff. (ECF No. 57-4). Plaintiff claims that this information is not relevant to the case. Defendants claim that they are entitled to subpoena employment records. Plaintiff recognizes that Laurel Park documents might include documents pertaining to this incident, as Laurel Park is the owner/operator of Pimlico where the incident took place. Accordingly, there is no prohibition against defendants’ discovery of Laurel Park documents relating to the incident. However, defendants also assert a right to plaintiff’s employment records because termination from a job one year prior to the incident could have a connection to the incident. This is sheer speculation, without any basis in fact or logic.
As with the medical records subpoena, plaintiff states that concrete harms are associated with the employment records subpoenas. It is an inquiry into his past employment that may have a chilling effect on the litigation. Accordingly, the motion to quash the subpoena and the motion for protective order as to all Laurel Park records, except for those that relate to the incident itself, are granted.
Cell Phone Records On July 17, 2012, defendants served a subpoena on AT&T to
8

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 9 of 13
obtain plaintiff’s cell phone records for the day before the incident to five months after the incident. Plaintiff claims that this information is not relevant to the case. The Court agrees. Defendants make no attempt to demonstrate the relevance of cell phone records before or after the incident. This is a fact–limited case, really involving plaintiff’s actions over a few hours, or less, on a single day. Discovery of these cell phone records is not appropriate. Again, the defendants seem engaged in an attempt to uncover “dirt” on the plaintiff, rather than truly to investigate the facts relevant to the May 2010 incident. Accordingly, the subpoena is quashed and the motion for protective order is granted for this discovery.
While defendants boldly declare that all the above discovery sought is “absolutely relevant . . . to his claims as well as the defenses of defendants” (ECF No. 63, 3), defendants fail to demonstrate that relevance to the constitutional and tort claims before the Court (ECF No. 2) or to any asserted defenses (ECF No. 56). Similarly, the defendants declare that “[c]ase law is clear [that] credibility and ability to perceive are always relevant” (ECF No. 63, 6) (emphasis added); however, the defendants cite no case for this principle. Moreover, here, none of the requested discovery bears on plaintiff’s “ability to perceive” on the date in question. Thus as to all the
9

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 10 of 13
subpoenas, defendants do not set forth reasons as to why, despite the lack of any apparent relevance to the claims and potential harm associated with the subpoenas, discovery should still be had. See Desrosiers v. MAG Indus. Automation Sys., LLC, 675 F. Supp. 2d 598, 601 (D. Md. 2009) (stating that “when challenged, threshold or apparent relevance must be established”). The Court agrees that these discovery requests (and many of the deposition questions discussed below) “have inappropriately intruded into [Mr] Sharp’s personal life to root around for information that bears no relation to the issues in this case.” (ECF No. 57-1, 1). The Court also agrees that “[d]efendants’ discovery abuse is particularly egregious given the enormous power that police defendants wield over citizens, [and] their enhanced ability to track information about citizens. . .” (ECF No. 57-1, 4).
Contacts with Family and Friends On about July 31 and August 1, 2012, defendants contacted plaintiff’s ex-wife’s boyfriend and mother. Plaintiffs claim that defendants are contacting these individuals in an attempt to encourage plaintiff to drop the lawsuit and that the contacts serve no purpose. Defendants claim that they are entitled to contact and interview individuals who know plaintiff. The Court appreciates why the plaintiff may find offensive police contacts
10

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 11 of 13
with his ex-wife’s boyfriend and mother, but ordinarily the Court would not restrict such contacts. Unlike the use of the subpoenas for the other discovery, defendants are not using the offices of the Court to gain information from these individuals. These individuals would appear, however, to have no personal knowledge relevant to the incident, although, it is possible that plaintiff shared his version of the incident with them (as he could have with any number of people). While such inquiries could be seen as harassing and intimidating, there is no indication that the contacts themselves were aggressive, threatening or otherwise inappropriate, such as the use of informed officers for the investigation. These individuals did not themselves complain to the Court or apparently to any other authority about the defense contacts. However, as context for this motion and in support of the view of the intimidating and harassing approach of the defense, plaintiff’s counsel attached excerpts of the deposition of the plaintiff. (ECF No. 66, 432). These deposition excerpts present a picture of defense counsel “working plaintiff over” – asking irrelevant and personal questions about his custody arrangements for his young son (ECF No. 66, 17-19), and his divorce proceedings (ECF No. 66, 24), – among others. Moreover, even on subjects where some inquiry might be permissible, defense counsel interrogated to
11

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 12 of 13
the point of harassment, such as his medical history. (ECF No. 66, 8 - et seq). It was an appalling and apparent attempt to squeeze the plaintiff with questions that would almost certainly never be permitted in Court. Counsel’s questions went beyond zealous defense of his client to a not so subtle attempt to intimidate, the plaintiff. While plaintiff did not and has not sought any relief from these deposition tactics (beyond his counsel’s repeated objecting in the deposition), they do support plaintiff’s counsel’s concern about defense’s inappropriate discovery tactics. Given this, the Court questions whether in the off the record situation of witness interviews by representatives of the police department, defense counsel and his investigators would overstep the bounds of zealous defense, utilizing consciously or unconsciously the power of the police, in an inappropriate way. Accordingly, the defense is ordered to seek leave of court as to any further contacts with these or other individuals in the investigation of the case.
Award of Expenses Under Rule 37 There was no substantial justification for defendants’ position on this inappropriate discovery and an award of costs is mandated under Fed. R. Civ. P. 37. Defendants are entitled to a hearing prior to imposition of an award and the amount of same. However, the Court proposes to award the modest sum of
12

Case 1:11-cv-02888-CCB Document 80 Filed 03/01/13 Page 13 of 13
$1000 (certainly less than incurred in fees), without the requirements of briefing and presentation of contemporaneous billing records. If, however, the defendants want a hearing, the Court shall provide one and shall require plaintiff’s counsel’s submission of a fully supported fee petition and allow defendants’ opposition and critique. Defendants shall advise the Court by March 15 as to whether they seek a hearing. If not, the defendants shall pay the $1000 expense award by April 12, 2013 to plaintiff.
Despite the informal nature of this ruling, it shall constitute an Order of Court, and the Clerk is directed to docket it accordingly.
Sincerely yours, /s/ Susan K. Gauvey United States Magistrate Judge
13

 
 Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 1 of 24

SETTLEMENT AGREEMENT AND RELEASE cCACeonoomltulueeennrcreccitdcTiiilvla,h"ien)nitls,htyCoeBSirvebaBeiflytlPtetilrLDmaernmei,obddreeSentrbhotteaiPetarAowspslg,ieU"createenhnneiedDomMnSeAeeapnoCtyattfolrLiatMrnmUng&aderaPnyrRCatlearei(ttnl"eiyeedBaascCPsF"he)oDo.uiu"(nnhn)d,cdeiiraCvletihiiodonrufnaiasBftlt(olea"yprlAthir"CmeeSfLroeeUStrrterhl"eea)(dmtr(hptteeohn(e""taSMMsAhaagaayyrr"epooPe"rram)aarntnaeyndnd"dt"CCa)tiinhttidyyes

RECITALS oaopCtorfhforfoheiuvcnisrisetesdre,yaes;nooaWdrnutehdnaHtaanguldEtdlrsenRoooteaaftEnduhfiAindeacteirnSheoddrve,sihrSodpeiohtemhchaofooersnrtwrphdetpheh,aetiashlSrBsteseheoharoalnatatrnsdaipremrltbehdeooseaivfrtestfee,cniancoonPtsevsndtoreo(lrMlritbeecheefdedaetaytt"toDihhInn1neaeg5tcpta,hiatrode2hreeft0eadmn1aeotw0en"vfn,)iift;ctiahhcecese,qttrhouuisnepsacehpipnldaeuhtddadohninidnhsceeige;mcleena,atlnuetldsd-mpePteihvihzmroieaodndltueiescaohfocvtioaesiRmdrfceattehehocrleeseal IB(sDnaacm.litdeMimecnaoatrWrpy(etltHiahoCneEndi"t,R)yL,aEPinsAtdeiogSelaiwk,ctiihenSoighDncah"edr)ppa;camufrriatrlmgeedenestnlatya,ncieodstmdianpol.jlc,uakniwencthtteiidvicnehaBsawnaCaldtsiivmdrieelomcArleaocrvtCaietoidornrctyuoNirtofee.Cldi1oee:urf1ara1lts-cscatovyu-rl0reet2dsu8uSl8nth8doa-eCrrfpCtthhBvee.

WHEREAS, BPD disputes the allegations in the complaint in the Litigation;

stated

WHEREAS, the Settling Parties have below with no admission by any Party;

agreed

to

resolve

the

Litigation

on

the

terms

wfohrtihchhiesNrehOienrW,ebaynTdaHcfEkonrRooEwtFhleeOdrgRgeoEdo,,dtihnaencSodenvtstaildilnuegarabPtliaeorntcioeosnfshtihedereerbmaytuioctunoa,vltehpneraonrmet caiesneidpstaaganrndedeasagusrfeffeoimcllioeewnnctssy: soetf

tfhoirsthSeintt1lte.hmisenSRteeAttclgietrmaeleesmn/DteeAnftg.mreiteimonesntCaorentcraocnttruaaclt:uaTl haendfoirnecgooripnograrteecditainlstoanandddmefaindietiopnasrt

set of

Sisetftulellmy2ee.nxteAcugEtrfeefdeemcbteiyvnetatlDol aPthtaeer.toieTthsheiarsnPdSaeretttialeceshm(tePhnaetrt"AyEgfhrfeaeescmtidveeenlitDvseahrteaedl"l).banecoexmeecuetfefdectciovpeywohfenthiet eodrextehpemercerauwsnteedin3sstte,.hsaissalelnteSWdgfeoatawttrlitreoharmnrarhsnaeenntoryttersiAcnotagfhuaraCsnetedeasnmptoohaefancotaitt,tchhytteeioortoonrperreEceiretnlsieovhtaeneasrsetodhItrhenientesonustthomRiiltesyeslSrpehieaegatscshteiltfe:aimaenTndyehdnieintenAxStiecteg,rltreutaelssnietindvmgienteoPnatatuhrreteethlixeoeccasrlesiatpeeiytmaacatslohsl,

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 2 of 24

claims on his or its behalf, and that he or it has not sold, assigned, transferred, conveyed or otherwise disposed of any claim, demand, obligation or causes of action referred to in this Settlement Agreement.

4. Payment: Within sixty (60) days after the Board of Estimates approves this Settlement Agreement, the Mayor & City Council shall pay the following amounts:

4.1

$25,000.00 (Twenty Five Thousand Dollars) (the "Damages Claim

Settlement Amount") by check made payable to "Christopher Sharp," which shall be

delivered to co-counsel for Sharp, Deborah A. Jeon, Esq., American Civil Liberties

Union of Maryland Foundation, 3600 Clipper Mill Rd., Ste. 350, Baltimore, Maryland

21211;and

4.2

$225,000.00 (Two Hundred Twenty Five Thousand Dollars) (the

"Attorney's Fees and Costs Settlement Amount") by check made payable to "American

Civil Liberties Union of Maryland Foundation and Wiley Rein LLP," which shall be

delivered to co-counsel for Sharp, Deborah A. Jeon, Esq., American Civil Liberties

Union of Maryland Foundation, 3600 Clipper Mill Rd., Ste. 350, Baltimore, Maryland

21211;

4.3

The Damages Claim Settlement Amount and the Attorneys Fees

and Costs Settlement Amount shall be referred to, collectively, in this Settlement

Agreement as the "Settlement Sum."

5. Non-Monetary Relief: The Mayor & City Council and the BPD further agree to provide the following non-monetary relief within forty-five (45) days of the Effective Date:

5.1 The BPD will adopt and implement the policy concerning citizens' rights to audiotape videotape and photograph police activity, attached as Exhibit A;
5.2. The BPD will remove the current General Order J-16, addressing these rights, from circulation, which will be replaced with the policy concerning citizens' rights to audiotape videotape and photograph police activity, attached as Exhibit A;
5.3. The BPD will adopt and implement the training regimen described in Exhibit B related to citizens' rights to audiotape videotape and photograph police activity; and

c.

5.4. The BPD will issue a written apology to Sharp, attached as Exhibit

6. Approval by City's Board of Estimates: The Settling Parties understand that payment of the Settlement Sum as set forth in this Agreement is subject to, and contingent upon, the prior approval ofthe City's Board of Estimates. In the event that the Board of Estimates rejects the settlement, this Settlement Agreement will become void

2

.

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 3 of 24

and of no legal effect, upon which time the parties may continue claims and/or defenses otherwise available to them in the Litigation.

to

pursue

whatever

LecinERaPbip5nnqlnoiaefaeacttufdotryhiilelegtimeurfmalitcaaeieaydlsttmstsesnfh)ii,iitnv,,noyiin,ol7tgsetnitcge.hfaha.oadDSebenauhPferiiadttsielatrtottimhetborte,lsateaiyresieMlgantemelsoShneesrlaeenuefyaofyttlnfntttsateosrahutld'aoca,erneartAmsmidoiarplesoignbrtseeRnpaisrdalnn,ieleeeaonlgtcrelnluysasfcieSmldupottooauaiiaanessonotmnfnlssnseonssfde,d,ts,urs,soaedlf,ahonoartvSiaanrlidfcefmhlrsmfnodreiaattsccalshnor'dCatsel,gpesyratireo,esiesNsafmnciv,nee,ttnhaosxoetesedtaicnspnutmrlrt,iw-earagtheeMhepninsesehmielspnstwiooeIcoesNnyBsnahhc,rc,eencaoPtoetgiicddtttavDdhsnsaoeret,oeenrcrbyonnep(oeethtivtRsRocSvmhs,eetroeheueeiiapranolrmrel,telsc"iani:otwe,aetoRnhiysfnnotIehaeiewsstnsnnselsrpLeisgsst,ncteahai,ihoogcdct(sePisanitntiergfiantgsstmitnaakhrg,ieoetgttdnedauniiaeoePonstconrsoinuawdiInaendr,ernsthynstiScii,a,otbsaeniheovdnunsecidcernee"cdhletou)nciuapR,oladfetnaalasneisbfelkwrnlslsoaotneoogomcrt4oaoo,frfhhsteswrathbttinthhnhonnheiuitneegenndr,set

8. Costs and Expenses: Except for the costs and expenses included in

Settlement Sum, the Settling Parties will each be responsible for his or expenses incurred in connection with the prosecution, defense and claims asserted in the Incident or Litigation.

its own costs settlement of

the and the

Atuhaahgnnegerrddreeeepiearneadslmrltseotb9hegoyo.anadlfttltihiaoiasennnnsysdSnoNoelaooetsatlfwsglyAeirtanrhetdygtoeeemdbdrPSeieassiebrsncottyitoiloltevnihnsnetsehgttodrehLuifaPfieLtftSadeiritgerathateaibtiesntlsiiiscoaln,iSengntsaeyanta:atPddnlmemadTmraoithnIsnieenseygnsicotSitsndhAtueheectoganthSlfrttieenaiaenttsgrhtmsyeleuiPeneidansgsiprststuuPapiaeerraunpserotdotecifesdetoxleh.sanpewetroIece,RtnosffiesdnaslltcoyehtutmahinssodaideertcesnaSltriihlsceaelteoytbdotn.i.locletidlatmayiIinatemoneninddsst

10. statement to shall be in a

Joint Public Statement: The Settling Parties agree to issue a joint public the media regarding the resolution of the Litigation. The joint public statement form approved by the Settling Parties and attached hereto as Exhibit D.

radnSeneoeandttsti/olteoiondnr.gbBo1erPP1aaD.cnrotytinoesostitNrnhtuhodeeaerdtEmptavenhsriiisdfseoyevnSnaiecdfntoeeytrlneooccmfeflfaeNioicnmefetersaAdnoogrftroooeibneflIftmieingcnedaitnaetiiltomo,nonniafnliotcfhcnyleou:ndbBdienIauhtglcatiitlpsm,faauooysnrfmesdtuehePcnreoshttlMoioccoofeadnytDhtoeaeernnptdS&iaoeranttCtgmliriisneetyengedtxCSfpbouorrymeusna,tsnchliiyyesl

mhSaeevtatelneibmneg1ee2nno.t dfAraagnfrytDeeedrlmaaefnextgnicnutlagurgesoeipvfrecetlohsyenentbaAtysingtaerhnedeyemipnorneotnedhtuiP:scatTrStoheyfte.tnlPeeInmagroettihtneieatstAeiaovcgnekrsnneteaomnowdfeleansdthd,gaietlslhpaenunotdSeteabrtgeterlgiednaeergdethimPnaagetrdttthihetioess

3

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 4 of 24

agree that the same shall be accorded a reasonable construction and shall not be construed more strongly against one Party than any other.

13. Entire Agreement of the Parties: Except as provided herein, it is

understood and agreed by the Settling Parties that this Settlement Agreement constitutes the

entire Settlement Agreement among the Settling Parties with respect to the subject matter

hereof and supersedes all other prior and contemporaneous written or oral agreements and

discussions. This Parties hereto.

Settlement

Agreement

may

only

be

amended

by

a

writing

signed

by

all

14. contained in

Severability: this Settlement

In the event that Agreement, other

any than

covenant, Sections

condition, or other 4 and 5 concerning

provision Payment

and Non-Monetary Relief, is held to be invalid, void, or illegal by any court of competent

jurisdiction, the same shall be deemed severable from the remainder of this Settlement

Agreement and shall in no way affect, impair or invalidate any other covenant, condition or

other provision contained herein. If such condition, covenant or other provision shall be

deemed invalid due to its scope of breadth, such covenant, condition or other provision shall

be deemed valid to the extent ofthe scope ofbreadth permitted by law.

15. Agreement

Survival of shall be binding

Terms: upon and

The inure

Settling Parties agree that to the benefit of the Settling

this Settlement Parties and their

respective successors, assigns, heirs, executors, administrators, and personal

representatives. The Settling Parties understand and agree that the terms, covenants, and

conditions set forth in this Settlement Agreement shall survive the closing of the

Settlement Agreement.

16. Knowing and Voluntary Act: Each of the Settling Parties represents that

each has read this Settlement Agreement and acknowledges that each has been represented

or all

had the opportunity of the negotiations

to be represented by which preceded the

legal counsel ofhis or its own choice throughout execution of this Settlement Agreement and that

each Party has executed this Settlement Agreement with the consent and on the advice of

such legal counsel. Each of the Settling Parties further acknowledges that each Party's

counsel have had adequate opportunity to make whatever investigation or inquiry they may

deem necessary or desirable in connection with the subject matter of this Settlement

Agreement prior to the execution hereof and the delivery and acceptance of the

considerations specified herein.

17. Waiver of jury trial: To the extent an action is filed in any court for a breach of any covenant, term or condition of this Settlement Agreement, the Settling Parties hereby agree that such action will be subject to the continuing jurisdiction of the Hon. Catherine C. Blake, Judge, for the United States District Court for the District of Maryland, and voluntarily waive any and all rights to a trial by jury, with the exception of all such actions that Sharp is a party to, in such actions, the Settling Parties shall retain their respective right to a trial by jury.

4

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 5 of 24

cASecofotgfannertdseectisetrtmuitDooe1enids8intt.staor,nifccdiotnthnCeciGfnlsolufiuodcoarvtirgstncergfeoerodnefrbmilintuanhetgwenanctDLp,ocratiososwhrtlvdria:imiaslclnitiotcTboeneedhsfw.iMsstoiuAtahbSrnajyetenyhtlcytaeldtneidlmtsaao,pwceHutntsithooteeonsnAf.actfgChrooirneasreittenihSbnmgetruaereoitiannenuctgeoht CsofjuhoM.farfBoilaslarldrnayubikyclneaetdni.cogeodrnov,vtewhoenirifsatnhnteShotd,eeuttttbeUlgeryminmviatieennondgdrt tSsnoiueggtmntelatbehtmeuerrre1eno9swt.fhAiaclllogl urbeCbneeetomeburidepnnenadtetrie.mtnrsgp,edaaernattdcsoh:lebogeaTflohwininsheiacSlahlenrtdsetlhsepatmhlelecetnbssetaamsAdeeigefrmieinteeswmdtreeuranment eanonmtr.aoigyriingAbainel,afalebcsxusieitgmcnauialtllteeudoroefritnwochotaihpcniyhys

IN WI1NESS WHEREOF, the Parties or their duly executed this Agreement as ofthe date indicated below:

authorized

representatives

have

IN WI1NESS below:

THEREOF,

the

Parties

have

executed

this

Agreement

as

ofthe

date

indicated

C~STOPHERSHARP

Dated:---------------------------
AMERICAN CIVIL LffiERTIES UNION OF MARYLAND FOUNDATION By:_____________________________
Deborah A. Jeon, Esq., Legal Director of the American Civil Liberties Union of Maryland Foundation Dated:________________________
MAYOR AND CITY COUNCIL OF BALTIMORE
By:.~ed 'Jd' George A. Nilson, Esq., City Solicitor of Baltimore
Dated: ~~J't
5

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 6 of 24
Dated:---------------------------
Approved as to Form and Legal Sufficiency
B~ C. ec
6

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 7 of 24

18. Governing Law: This Settlement Agreement shall be governed by and

construed and enforced in accordance with the laws of the State of Maryland, without giving

effect to its conflicts of law provisions. Agreement, including but not limited

Any disputes to any action

arising out of or under this Settlement for breach of any covenant, tenn or

condition of this agreement, shall be subject to the continuing jurisdiction States District Court for the District of Maryland, Hon. Catherine C. Blake.

of

the

United

19. Counterparts: This Settlement Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same instrument. A facsimile or copy signature will be binding and legal in all respects as if it were an original signature to this Settlement Agreement.

IN WITNESS WHEREOF, the Parties or their duly authorized representatives have executed this Agreement as of the date indicated below: IN WITNESS THEREOF, the Parties have executed this Agreement as of the date indicated below:

CHRISTOPHER SHARP

Dated:---------------------------
AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION
b.-= By: I ,'k { I { ,{ ('( Deborah A. Jeon, Esq., Legal Director of the American Civil Liberties Union of Maryland Foundation

MAYOR AND CITY COUNCIL OF BALTIMORE
By:~ae«khL George A. Nilson, Esq., City Solicitor of Baltimore

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 8 of 24

··ScAecoftogafnnertdSeec.isett.trmi.Dtu.ooee1nidsin8tttos.ra,infccidot.tnhnCceifGlnoslufiuodcoartivgrtnscerfgeeorodenfrbmilitunnahetgwenantcDLp,ocritaososwhrtlvrdiaimi:alsclniti·otcboTeneedfshwM.istsouiAatbhSranyjeetnylhtcaytedtlneidltmsaao,pwceHuttnsihtooeteonsnA..fca.fCtg.orohirna.resetti.ehinSb~nmegrtuareeioitannneucegthot Csofjouh.MfrafBoilasalrlrdanyubikyclneeatd.cinoegodnrov,tvewhoneifirastnnhtSehto,deeuttttbUelgenynimnv.iatieennondgdrt

.

.
· . . · · . ··

·

Sstnoieuggtmntelatebhtmeuerrre1eno9swt.fhAiacllglolrbueCbeneetombeuridenpnnedatetrie.mntrsgp,edaaenrattdcsoh:lebogeafTlohwininhseiacSlahlnertdsethlseptamhlelecetbnssetaamsAdeeigfermiienteeswmtdreueranmenteannomtr.oaigyriignAbianle,afalebcsxusieigtmcnauailtllteeudoroefritwnochotahipnciyhys

.·executedINthWis IATgNreEeSmSenWt HasEoRfEthOeFd,attheeinPdairctiaetesdobr ethloewir:duly authorized representatives have

IN WITNESS below:

THEREOF,

the

Parties

have

executed

this

Agreement

as

of

the

date

indicated

.·.. CU ~R» SH ~~

Dated: _

_~lf-./..2...'-6o....t-/__24 ~ I

_1 .'..-../_

_ _

.. ..

· MAMAREYRILCAANNDCFIOVUILNLDIABTEIROTNIES UNION OF

By:FA_ Domeub_ enordriaca_thainoA_ nC. iJv_ eiol n_ L,iEb_ esqrt.i,_ eLs eU_gnail_ oDni_ orefcM_ toarr_ oylfa_tnhde

Dated:_ _,___ _ _~-~-----"-

MAYOR AND BALTIMORE

CITY

COUNCIL

OF

By:~L4 nJ-_.

George . Baltimore

Nilson,

Esq.,

Ctty

Solicitor

of

Dated: tjJ;tjZP/1

5

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 9 of 24
EXHIBIT A
I. POLICY
The Baltimore Police Department (BPD) recognizes that Members of the general public have:
• a First Amendment right to video record, photograph, and/or audio record BPD Members while BPD Members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity;
• a Fourth Amendment right to be free from unreasonable searches and seizures of both person and property; and
• a Fourteenth Amendment right to due process in advance of property deprivation.
In furtherance of the this policy, Members may not prevent or prohibit any person's ability to peaceably observe or record police activity that occurs in public, or where the person recording otherwise has the right to be.
II. REGULATIONS
A. Photographing and recording are common and lawful activities. Taking photographs or recording from a place where a person has a right to be does not constitute suspicious conduct.
B. In areas open to the public, Members shall allow all persons the same access for photography and recording as is given to the news media. Members shall be aware that:
1. All persons have the same right to take photographs or make recordings as news media, as long as the person has a legal right to be present where he or she is located.
2. All persons have the right under the First Amendment to observe and record Members in the public discharge of their duties.
3. Public settings include, e.g., parks, sidewalks, streets, and locations of public protests; but that protection extends also to an individual's home or business, common areas of public and private facilities and buildings, and any other public or private facility at which the individual has a legal right to be present.
4. Persons may also record their own interactions with police officers. Just as bystanders have the right to record police activity, persons have a right to record their own actions with officers
7

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 10 of 24
who are exercising their police powers, without the need to obtain consent.
5. The fact that a person has a camera or other recording device does not, however, entitle the person to cross a police line, to enter an area that is closed to the public, or to enter any area designated as a crime scene.
C. As long as the photographing or recording takes place in a setting where the individual has a legal right to be present and does not interfere with a Member's safety, Members shall not inform or instruct people that photographing or recording police officers, police activity or individuals who are the subject ofpolice action (such as a Terry stop or an arrest) are not allowed; require a permit; or require the Member's consent. Additionally, Members shall not:
1. Order that person to cease such activity;
2. Demand that person's identification;
3. Demand that the person state a reason why he or she is taking photographs or recording;
4. Detain that person;
5. Intentionally block or obstruct cameras or recording devices;
6. Demand to review or erase any images or recordings; or
7. In any way threaten, intimidate or otherwise discourage an individual from recording Members' enforcement activities.
NOTE: Members may ask questions during the course of a contact, but Members are reminded that there is no justification for ordering a person to stop or requiring that they answer unless the Member reasonably suspects that a person has committed, is committing, or is about to commit any crime.
D. Members are reminded that the public does not have a right to interfere with police activity. Interference consists of conduct, threats, actions or activities that prevent or hinder, or purport to prevent or hinder, Members from doing their job.
NOTE: Observing or recording police activity, alone, does not constitute interference.
1. If a person is photographing or recording police activity from a position that impedes or interferes with the safety ofMembers
8

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 11 of 24
or their ability to perform their duties, a Member may direct the person to move to a position that will not interfere. However, a Member shall not order the person to stop photographing or recording.
2. A person has the right to express criticism of the police activity being observed. So long as that expression does not jeopardize the safety of any Member, suspect or bystander; and so long as that expression does not violate the law or incite others to violate the law, the expression does not constitute interference.
E. Evidence on a Camera or Recording Device; Probable Cause
1. Members may not request or seize an individual's camera or recording device for the purposes of deleting, destroying, or otherwise concealing information which they believe may portray individual BPD Members or the BPD in a negative light. Concerns of this nature do not provide a basis to request or seize cameras or recording devices.
2. Probable cause exists only where the known facts and circumstances are such that a reasonable Member in the same situation would believe that evidence of a crime will be found.
3. If a Member has probable cause to believe that a camera or other recording device contains images or sounds that are evidence of criminal acts, the Member shall request that the person either:
a. Voluntarily provide the device or recording medium (e.g., the memory chip) to the Member; or
b. Where possible and practicable, and in the presence of the Member, voluntarily transmit the images or sound via text message or electronic mail to the Member's official government electronic mail account.
c. Consent to take possession of a camera or recording device must be given voluntarily, without coercion or threats. A Member shall not, implicitly or explicitly, coerce consent to take possession of any recording device or any information thereon.
4. If the person voluntarily provides the camera or recording device to the Member, the Member shall:
a. Exercise due care and caution with any of the individual's property or electronic device(s);
9

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 12 of 24

b. Complete a Form 93/56, "Property Receipt," and provide the pink copy to the individual. Retain all other copies;
c. Provide the individual with the name and contact information ofthe Officer who took custody of the individual's property;

d. In the "Property Listing I Evidence Recovered" section of any applicable field report(s), list the item(s) surrendered
by the individual and held/submitted as evidence.

e.

Document your request, and the individual's response, in

the narrative of applicable field reports and/or charging

documents.

f.

DO NOT make any attempt to view, download, or

otherwise access any material contained on the device.

g. Protection of anl: gotential evidence is garamount. Only members ofthe Cyber and Electronic Crimes Unit may
make efforts to access material contained on the device.

5. Members may not seize the recording or recording device unless sufficient exigent circumstances exist to justify a
warrantless seizure. Members must evaluate the sufficiency of exigent circumstances as they would for any other type of evidence.

6. If the :12erson declines to voluntarily :12rovide the camera or
recording device, or to electronically transmit the sound and/or images where possible and practicable, and there is probable cause to believe that the evidence is in immediate jeopardy of
being tampered with, altered, deleted, or destroyed, you may temporarily seize the device for safekeeping/preservation of the evidence while the appropriate application(s) for Search and Seizure Warrant(s) are made.

a.

DO NOT make any attempt to view, download, or

otherwise access any material contained on the device.

b. Protection of anl: gotential evidence is garamount. Only members of the Cyber and Electronic Crimes Unit may make efforts to access material contained on the device.

c. Apply for, execute, and return any Search and Seizure Warrant(s) in accordance with General Order J-7, "Search and Seizure Warrants."

10

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 13 of 24
d. Submit the recovered camera, video recording device, etc., in accordance with General Order N-1, "Control of Property and Evidence."
e. Complete all appropriate field reports. F. Members shall not, under any circumstances, erase or delete, or instruct or
require any other person to erase or delete, any recorded images or sounds from any camera or other recording device that is in the possession of a nonmember, or that has been voluntarily turned over or seized under the terms of this order. G. Members shall maintain cameras and other recording devices that are in Department custody so that they can be returned to the owner intact with all images or recordings undisturbed. Permanent Rank Supervisor I OIC A. Ensure that any camera or video recording device that has been used to photograph and/or video record police activity comes into the custody of theBPD:
1. Through the voluntary consent of the individual in possession of the item.
2. Through execution of a Search and Seizure Warrant. 3. Through some valid exception to the warrant requirement. B. Permanent Rank Supervisors must provide the review and approval of any application for a Search and Seizure Warrant as required by General Order J-7, "Search and Seizure Warrants." Duty Detective, Cyber and Electronic Crimes Unit A. Provide guidance and assistance to members on those occasions when an Application for a Search and Seizure Warrant is made for a camera, video recording device, etc., believed to contain evidence related to a criminal investigation. 1. Specific attention should be given to helping those members
properly define or describe the various data formats and storage devices they may be seeking in their Warrant Application. 2. Make any appropriate recommendations that may assist in the preservation of data, photographs, video "clips," etc.
11

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 14 of 24 3. In the course of a criminal investigation, and/or at the request of a member of the Department, access and download evidentiary materials contained on a device in that member's custody.
COMMUNICATION OF POLICY Supervisors shall be responsible for communication of this policy to their subordinates, and to ensure their compliance. Supervisors also must set the example for their subordinates by acting appropriately when observed or recorded in public and by disciplining the subordinate or advising the appropriate individual(s) in the Department with disciplinary authority about any subordinate's violation of this Policy. This Order is effective on the date ofpublication, is to be read at all roll calls for five consecutive days, and is to be posted on all Departmental Bulletin Boards.
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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 15 of 24
EXHIBITB
1. IMPLEMENTATION OF NEW POLICY RE CITIZENS' RIGHTS TO OBSERVE AND RECORD
1.1 Within 60 days of the Settlement Agreement's Effective Date, BPD agrees to inform each officer and employee about this Settlement Agreement and the responsibilities of each officer and employee pursuant to it.
1.2 Within 120 days of issuing a policy or procedure pursuant to this Agreement, BPD agrees to ensure that all relevant BPD personnel have received and read their responsibilities pursuant to the policy or procedure, including the requirement that each officer or employee report violations of policy; that supervisors of all ranks be held accountable for identifying and responding to policy or procedure violations by personnel under their command; and that personnel be held accountable for policy and procedure violations. BPD agrees to document that each relevant BPD officer or other employee has received and read the policy. Training beyond roll call, or similar training, will be necessary to ensure officers understand and can perform their duties pursuant to the policy.
1.3 Unless otherwise noted, the training required pursuant to the Settlement Agreement shall be delivered within 365 days of the Effective Date, and annually thereafter. Within 180 days of the Effective Date, BPD shall set out a schedule for delivering all training required by this Agreement within 365 days of the Effective Date.
2. OFFICER TRAINING RE CITIZENS' RIGHTS TO OBSERVE AND RECORD
2.1 Within 365 days of the Effective Date, BPD shall provide all officers and trainees with approximately 2.5 hours of initial training on citizens' rights to record, including the requirements of this Settlement Agreement. Thereafter, BPD shall provide all officers with approximately 1.5 hours of such training on an annual basis and shall incorporate training on citizens' rights to record, including the requirements of this Settlement Agreement, into its annual in-service and police academy training on Constitutional Law and/or Police Liability. This training shall be taught by a qualified legal instructor with significant experience in First Amendment and Fourth Amendment issues, and/or a member of its in-house training staff or adjunct instructor that has been trained by a qualified legal instructor with significant experience in First Amendment and Fourth Amendment issues, and shall:
(a) address Fourth Amendment and related law, BPD policies, and requirements in this Settlement Agreement regarding searches and seizures;
(b) address First Amendment and related law, BPD policies, and requirements in this Settlement Agreement on the rights of individuals verbally to
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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 16 of 24
dispute, to observe, and to record (by audio recording, video recording, photographing, etc.) officer conduct;
(c) address the differences among various scenarios in which individuals' interact with BPD personnel while exercising their First Amendment rights; between probable cause, reasonable suspicion, and mere speculation; and between voluntary consent and mere acquiescence to police authority;
(d) provide guidance on the legal requirements for conducting searches, with and without a warrant;
(e) provide guidance on the permissible nature and scope of searches based on the level of intrusion on an individual's privacy interests;
(f) specify the procedures for executing searches, including handling, recording, and taking custody of seized property or evidence;
(g) provide guidance on effecting an arrest with and without an arrest warrant; and
(h) provide guidance regarding the nature and scope of searches incident to an arrest.
2.2 BPD agrees that as part of the training, BPD will require all active Officers to answer the multiple-choice questions attached to this Exhibit B as Attachment 1.
2.3 BPD agrees that all subsequent annual training sessions will include testing similar in form, content, and length to that in Attachment 1. BPD agrees that all subsequent annual training and testing materials will be developed by the qualified instructors required under Section 4, below. 3. ROLL CALL AND/OR ON-LINE TRAINING
3.1 In addition to agreeing to provide the annual training required by Section 2, above, BPD agrees that it will provide all officers with roll call and/or on-line training on the rights and scenarios identified in Section 2 at least twice annually. 4. INSTRUCTOR SELECTION
4.1 BPD agrees actively to seek out and retain qualified instructors, including instructors from outside BPD, with expertise in areas such as law and investigations, as necessary, to supplement the skills of in-house training staff and adjunct instructors and/or to train its in-house training staff and adjunct instructors. Additionally, BPD agrees to incorporate experts and guest speakers such as judges, prosecutors, and community members, to participate in instruction regarding citizens' rights to record and/or to train its in-house training staff and adjunct instructors.
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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 17 of 24
5. TRAINING EVALUATION
5.1 Within 365 days of the Effective Date, BPD agrees to develop and implement a process that provides for the collection, analysis, and review of data to document the effectiveness of training and to improve future instruction, course quality, and curriculum. This process shall measure and document student reaction to and satisfaction with the training they received; and student learning as a result of training, including the extent to which students are applying the knowledge and skills acquired in training to their jobs.
5.2 Within 365 days of the Effective Date, BPD agrees to develop and implement documented and approved testing policies and procedures to ensure that all testing is valid, reliable, and fair. Both knowledge-based and performance-based tests shall be designed, developed, administered, and scored according to established professional standards of practice.
5.3 All tests shall be job-related, testing knowledge and skills required for successful job performance.
6. TRAINING RECORDS
6.1 Within 365 days of the Effective Date, BPD agrees to develop and implement a system that will allow the Training Division to track electronically, maintain, and report complete and accurate records of current curricula, lesson plans, training delivered, and other training materials in a centralized electronic file system. This system shall, at a minimum:
(a) maintain training records for each recruit and each sworn member of the Department;
(b) record the course description, duration, curriculum, date and location of training, name of instructor, and the personnel who completed the training;
(c) document delivery of Roll Call and/or on-line training sessions under this agreement; and
(d) document officers who did not complete required training and all corrective actions taken.
6.2 Within 365 days of the Effective Date, BPD agrees to develop and implement accountability measures, including disciplinary and non-disciplinary corrective action, to ensure that all officers successfully complete all required training programs in a timely manner.
7. COMPLAINT INTAKE. CLASSIFICATION, ASSIGNMENT. AND TRACKING
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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 18 of 24 heaarainrnolgrlfmeehaogstrretaectiotaoneimgor7oon.bpb1oesuesnrsentttihrhnitvanoreetevBs,taaeshPrtn.seeeDtIncoipmgoifaunafrpgibtdgcrirl,ooeetiocnapre,n,sehdodrdate/oriistosnawoitrtirnenrhvadraecefoenkrerrrebr,ylaeyatawrnhlsrclceeyaoaesyinctnswdoieidnunimpittcdvahemtiirr,vdtafehoieutndierrasutelcsdraoiahilmngtwasehsitfgilhttoaaoheirrrnrpyaicicngehlocthuraeifftdrvromgtefiroelesmiirssabii.camnneong',spncswreFduouiiocprtchhsfettrpaaclAosyollmaamidcwepepetneladadrisiunmnotitinenseng',sstoinr pactsfaordyoonomsmldtmithceiprenimelieianlcssiioisa7tntarhmbi.tan2aaltwpdlelillviadpanbesiratenoaitrBnaacukevnPecseretedeeDtsigdouovt'arifstefegrotiddcsahn,editeaaninaelongisttnnddretawtsirhets.lmheirepziiliomslennsduaeAisstmntigthofaubronetemeur,erssbpm,itnaeaenetcrnrauinildtnuostug,ddforiiiieannfnc,nacgcaaldlosnuidmnstddrievsiapssnepclstsgaoakmtitsiirnungeiettsngaqsiottousianooiyfnrnfsaoedtlcmtfeltoiotmmmemhnceeisptoslshilicnnniaooafvelinnnlesrdcmmssteuthaiacegtwnihtandtiactittimtaonhoiamonenBtl.piiPafnTlciDaechcisaniussttrisaoo,tnfe tehvaidt emnics7ec.o3annddupcrWtohvhaiesdrejeutashtissoucipnceufrorvrriemsdoa,rttirhoeencesaiunvpdeeservaviimsdoeirsncscohenatldolugBcatPtchDoe'mrsapIlnllatreienrlnteaivnlaAnthtfefianfifireoslrdDmaiavltliiesoginoinnag.nd
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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 19 of 24

Attachment 1 - Roll Call Training Questions - Citizens' Right to Record

Several Members break up a fight in front of a bar. One Member sees two bystanders across a side street who appear to be recording.
(1) Can the Member ask bystanders whether they saw the fight and what they saw? a) Yes b) No

(2) If the videos?

bystanders

state

that

they

recorded

the

fight,

can

the

Member

ask

to

watch

the

a) Yes b) No

(3) One bystander consents to the who determines the video may be obtaining the video?

Member's request and plays the video for the Member, useful evidence. Which of the following are options for

a) Ask the bystander to give the Member the phone so that the Cyber and Electronic Crimes Unit can transfer the video, then complete a Form 93/56 if the individual agrees.
b) Ask the bystander to text or email a copy of the video to the Member's BPD phone/email account.
c) Use the bystander's phones to text or email a copy of the video to the Member's BPD phone/email account.
d) A, B, and C. e) A and B but not C.

(4) The second Member do?

bystander

declines

the

Member's

request

to

see

the

video.

What

can

the

a) If, and only if, the Member has probable cause to believe that phone has evidence of a crime and the individual will delete or alter videos on the phone, seize the phone for safekeeping until a warrant can be obtained; otherwise, nothing as far as viewing the videos or obtaining the phone.
b) Advise the bystander that the Member must be allowed to review the videos because the videos are evidence of a crime.
c) Seize the phone and watch the videos to determine if they have any evidence. d) Direct the bystander to provide contact information so that the Member can
follow up at another time.

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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 20 of 24
Same scenario, but this time one of the bystanders has crossed the side street and is recording while walking from Member to Member and arrestees and asking several questions repeatedly about the arrests. Members have to walk around the recording/questioning individual while performing their duties. What can the Members do?
a) Take the bystander's phone to see if it has videos of the fight. b) Nothing. The bystander has a First Amendment right to record the officers while
on a public sidewalk. c) Direct the bystander back across the side street because the bystander is
getting in the way of Members' performance of their duties. d) Direct the bystander back across the side street and follow the individual so as to
block the individual's ability to record. e) Direct the bystander to leave the area and advise the individual of the possibility
for arrest for failure to comply.
Two Members notice an individual photographing them as they patrol Harborplace. Which of the following is a permissible action for the Members to take?
a) Direct the individual to stop photographing the Members. b) Ask the individual why he or she is photographing the Members. If the individual
cannot supply a valid justification, direct the individual to stop and leave Harborplace. c) Ask the individual questions, but not require the individual to provide any answers, to stop photographing, or to leave Harborplace, and not threaten arrest. d) Demand the individual's identification, then detain the individual while confirming whether the individual is potentially dangerous.
Members see an individual photographing the BPD's and BCFD's response to a serious car accident. Can a Member direct the individual to stop?
a) Yes. There is no right to photograph an accident scene where people may be injured.
b) Yes, unless the individual can show credentials for a news organization such as the Sun.
c) Yes, unless the individual works for a news organization or as a freelance joumalist/photographer/blogger.
d) No. The individual's status as a member ofthe media (or otherwise) is irrelevant to the individual's right to photograph.
After a vehicle stop, a Member begins arresting the driver for outstanding warrants. Individuals across the street begin recording the arrest on their phones while cursing and
18

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 21 of 24

insulting the Member. individuals across the

Another Member arrives to street. What can the second

support the Member do

arrest about

and observes the those individuals?

a) Direct the individuals to disperse because they are hindering the arrest. b) Nothing. The individuals are exercising their First Amendment rights and
are not interfering with the arrest or threatening the officers' safety. c) Direct the individuals to move only as far away as necessary so that their curses
and insults cannot be heard by the officers so as to not interfere with the officers' actions. d) Wam the individuals that they face arrest for disorderly conduct if they do not leave.

A Member pulls over a driver for an illegal the dashboard. The driver confirms that the Member do about the recording?

u-turn phone

and observes the driver's cell phone is recording the stop. What can the

on

a) Arrest the individual for violating Maryland's Wiretap Act because the individual did not have the Member's consent to record the conversation.
b) Seize the phone because there is probable cause to believe that the individual used the phone to violate the Maryland Wiretap Act, then obtain a warrant for the recordings to be accessed and reviewed.
c) Direct the individual to delete the recording because the individual did not have the Member's consent to record the conversation.
d) None of the above. The Member had no expectation of privacy in an on-duty conversation with an individual about official police business.

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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 22 of 24 EXHIBITC

Christopher Sharp c/o Deborah A. Jeon, Esq. American Civil Liberties Union ofMaryland Foundation 3600 Clipper Mill Rd Ste 350 Baltimore, Maryland 21211

February 14, 2014

Dear Mr. Sharp, On behalf of the Baltimore Police Department, we would like to express our
sincere regret and apologize for the unfortunate events that you reported took place on May 15, 2010. As an agency, we would like to apologize to you for any inconvenience, loss or damages you believe you suffered as a result of those events and the subsequent litigation. We are also deeply saddened and troubled by the fact that as a result of these events you have indicated that you have lost your trust in the police. We would like to personally assure you that we are working tirelessly to regain your trust. As part of that effort, the Baltimore Police Department is committed to instituting best practices and ensuring that the constitutional rights of its citizenry is protected. To that end, we have worked with your attorneys, the ACLU and the Justice Department to develop and implement a police recording policy and training that will be the bench mark for law enforcement agencies throughout the country. While we understand that this may not fully regain your trust, we hope you will see this as a significant step.
The Baltimore Police Department is committed to maintaining the highest ethical standards. We assure you that we are committed to making its members cognizant of the fact that, in the performance of their duties, they are representatives of the Baltimore Police Department and the City of Baltimore, as well as the law enforcement community as a whole, and ensuring that they act, accordingly.
Sincerely,
Anthony W. Batts, Commissioner

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Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 23 of 24

***JOINT STATEMENT OF THE PARTIES***

EXHIBITD

The American Civil Liberties Union of Maryland Foundation (ACLU), Christopher Sharp, and the Baltimore City Police Department are pleased to announce that they have reached an agreement that will enhance police practices and will settle a longstanding lawsuit alleging violation of a citizen's right to record police activity in public and illegal search and seizure. The lawsuit was brought more than two years ago, on behalf of Mr. Sharp, who alleged that Police Department officers deleted personal videos, including many of his young son, from his cell phone after he had used the phone to record Police Department officers arresting a female friend at the 201 0 Preakness. Under the settlement, the Police Department has agreed to institute a new policy that confirms citizens' rights to photograph as well as video- and audio-record police activities in public or wherever citizens have the right to be. In addition, every officer will be trained on the new policy, and the Department will track complaints of misconduct to ensure adequate training for compliance with the new policy. The ACLU and Mr. Sharp recognize that the Baltimore Police Department's current leadership has agreed to take steps to address the issues raised by this lawsuit and has engaged in diligent efforts to resolve this lawsuit in a positive and constructive manner. They applaud those efforts and the Department's willingness to implement the new policy and take the steps necessary for training, as set forth in this agreement. The Department recognizes that Mr. Sharp, in bringing this lawsuit, has focused on the need for systemic reforms that the parties all believe will improve policing in Baltimore. The parties believe that it is in their best interests, and the best interest of the Baltimore community, to bring finality to the case. The parties all want to ensure that Baltimore citizens enjoy the full freedoms guaranteed to them by law, and all want effective and lawful policing. The parties all believe that police respect for the citizens they serve and adherence to the Constitution, along with training to aid the officers in doing so, are essential to achievement oftheir collective goal ofmaking the Baltimore community a safer one. Mr. Sharp and the Department are gratified that this chapter has been brought to a close, and look forward to working together to realize the promise of the settlement announced today.
"We are proud to join with the Baltimore Police Department to announce a resolution to Christopher Sharp's case that upholds the First Amendment rights of all in Baltimore while supporting public safety," said Deborah A. Jeon, Legal Director of the American Civil Liberties Union of Maryland Foundation. "The ACLU is grateful to Mr. Sharp for his courage in taking a stand for the fundamental, democratic right of citizens to use technology to hold government officials accountable for their actions in the public sphere."

21

Case 1:11-cv-02888-CCB Document 105-1 Filed 04/07/14 Page 24 of 24 "We are thankful for the hard work and creative thinking that was necessary to create this agreement. The policy developed through this agreement is reflective of our mission to work closely and corroboratively with stakeholders in the community, to include the ACLU and Justice Department. We will continue to develop and implement practices, policies, and training that will set the standard for best practices for law enforcement agencies throughout the country." said Police Commissioner Anthony W. Batts.
22

 
 .,

Case 1:11-cv-02888-CCB Document 106 Filed 04/08/14 Page 1 of 2

Case 1:11-cv-02888-CCB Document 105 Filed 04/07/14 Page 4 of 4FI' r:-.,

fJl~,'i -.-~c..:..~UIS v I rilCY

]OpLF',V'.:r.!_1UrMCUu.L['I''I'T,41-1[/

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

i Znl~ APR -8 A 1/:!J2

CHRISTOPHER SHARP, Plaintiff,
vs. BALTIMORE CITY POLICE DEPARTMENT, et al.
Defendants.

C'(
Civil Action No. II-cv-02888-CCB

~;:L'TY

f
jt It is, this day 0~OI4,

ORDER by the United States District Court for the District of

Maryland, ORDERED: That the STIPULATION OF DISMISSAL is GRANTED;

That the settlement agreement attached to this order is INCORPORATED INTO THIS

ORDER; and That all of Sharp's claims against Defendants Baltimore City Police Department and
Commissioner Anthony W. Batts in this matter are hereby DISMISSED WITH PREJUDICE

subject to the Court's continuing jurisdiction to enforce compliance with the settlement

agreement incorporated into this order.

By:

Hon. Catherine C. Blake Judge, United States District Court for the District of Mary land

Case 1:11-cv-02888-CCB Document 106 Filed 04/08/14 Page 2 of 2 Case 1:11-cv-02888-CCB Document 105 Filed 04/07/14 Page 3 of 4

CERTIFICATE OF SERVICE 1 certifY that on April?, 2014, 1 filed the STIPULATION OF DISMISSAL, in accordance with the electronic-filing procedures adopted by this Court.

By:

lsi

Craig Smith

 
 U.S. Department of Justice Civil Rights Division

JMS:TDM:RJO DJ 207-35-10

Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530

May 14, 2012

Mark H. Grimes Baltimore Police Department Office of Legal Affairs 601 E Fayette St Baltimore, MD 21202
Mary E. Borja Wiley Rein LLP 1776 K St NW Washington, DC 20006
Re: Christopher Sharp v. Baltimore City Police Department, et. al.
Dear Counsel:
Judge Paul W. Grimm scheduled a settlement conference in Christopher Sharp v. Baltimore City Police Department, et. al. for May 30, 2012. While we take no position on Mr. Sharp’s claim for damages against the individual defendants, it is the United States’ position that any resolution to Mr. 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 governmental officers accountable, and ensure public and officer safety.
The guidance in this letter is designed to assist the parties during the upcoming settlement conference. It specifically addresses the circumstances in this case and Baltimore City Police Department’s General Order J-16 (“Video Recording of Police Activity”), but also reflects the United States’ position on the basic elements of a constitutionally adequate policy on individuals’ right to record police activity.
1. Background
In his complaint, Mr. Sharp alleged that on May 15, 2010, Baltimore City Police Department (“BPD”) officers seized, searched and deleted the contents of his cell phone after he used it to record officers forcibly arresting his friend. Compl. at 9-12, ECF. No. 2. Mr. Sharp further alleged that BPD maintains a policy, practice or custom of advising officers to detain citizens who record the police while in the public discharge of their duties and to seize, search, and delete individuals’ recordings. Id. at 7. On November 30, 2011, BPD and Frederick H.

-2­ Bealefeld, III filed a Motion to Dismiss Complaint of for Summary Judgment. According to the Motion to Dismiss, BPD promulgated a general order on recording police activity on November 8, 2011. BPD did not file this policy as an exhibit to its Motion to Dismiss. Instead, BPD filed a declaration providing a brief summary of its contents.
On January 10, 2012, the United States filed a Statement of Interest in this matter. In that statement, the United States urged the Court to find that private individuals have a First Amendment right to record police officers in the public discharge of their duties, and that officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States also opined that, based on the limited information on the record regarding BPD’s development of new policies and training on individuals’ right to record the police, BPD failed to meet its burden of establishing that it had taken sufficient action to prevent future constitutional violations. On February 10, 2012, BPD provided the Court, Mr. Sharp and the United States with a courtesy copy of General Order J-16. The same day, BPD released General Order J-16 to the public.1 Following a hearing on February 13, 2012, Judge Legg denied BPD’s motion.
Constitutionally adequate policies must be designed to effectively guide officer conduct, accurately reflect the contours of individuals’ rights under the First, Fourth and Fourteenth Amendments, and diminish the likelihood of future constitutional violations. BPD’s general order does not meet these requirements in some areas. In other areas, BPD’s general order does adequately protect individuals’ constitutional rights. We discuss those areas below, as well as others in which BPD should amend the general order to ensure that individual’s constitutional rights are protected.
2. Guidance on the Right to Record Police Activity.
A. Policies should affirmatively set forth the First Amendment right to record police activity.
Policies should affirmatively set forth the contours of individuals’ First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.2 See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (“[b]asic
1 Peter Hermann, Baltimore Police Told Not to Stop People Taking Photos or Video of Their Actions, The Baltimore Sun, February 11, 2012.
2 There is no binding precedent to the contrary. In Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009), the Fourth Circuit issued a one page, unpublished per curium opinion summarily concluding – without providing legal or factual support – that the “right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.” Id. at 853; see also McCormick v. City of Lawrence, 130 F. App’x 987 (10th Cir. 2005). In the Fourth Circuit, “[u]npublished opinions have no precedential value.” United States v. Stewart, 595 F.3d 197, 199 n.1 (4th Cir. 2010); see also Glik, 655 F.3d at 85 (“[T]he absence of substantive discussion deprives Szymecki of any marginal persuasive value it might otherwise have had.”).

-3­ First Amendment principles” and federal case law “unambiguously” establish that private individuals possess “a constitutionally protected right to videotape police carrying out their duties.”); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the “First Amendment right . . . to photograph or videotape police conduct.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing the “First Amendment right to film matters of public interest”). The First Amendment right to record police activity is limited only by “reasonable time, place, and manner restrictions.” Glik, 655 F.3d at 84; Smith, 212 F.3d at 1333.
While courts have only recently begun to refine the contours of the right to record police officers, the justification for this right is firmly rooted in long-standing First Amendment principles. The right to “[g]ather[] information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” Glik, 655 F.3d at 82 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966)). The application of this right to the conduct of law enforcement officers is critically important because officers are “granted substantial discretion that may be used to deprive individuals of their liberties.” Id.; Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991) (“Public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption.”). The “extensive public scrutiny and criticism” of police and other criminal justice system officials serves to “guard[] against the miscarriage of justice,” Nebraska Press Association v. Stuart, 427 U.S. 539, 560 (1976) (citing Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)), a harm that undermines public confidence in the administration of government. When police departments take affirmative steps to protect individuals’ First Amendment rights, departments “not only aid[] in the uncovering of abuses . . . but also may have a salutary effect on the functioning of government more generally.” Glik, 655 F.3d at 82-83.
Policies should explain the nature of the constitutional right at stake and provide officers with practical guidance on how they can effectively discharge their duties without violating that right. For example, policies should affirmatively state that individuals have a First Amendment right to record police officers and include examples of the places where individuals can lawfully record police activity and the types of activity that can be recorded.3 While this area of the law
3 Police duties discharged in public settings may include a range of activities, including detentions, searches, arrests or uses of force. In Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), the Third Circuit considered whether there was sufficient case law “establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police conduct during the stop would violate the First Amendment.” Id. at 262. The Court determined that, because there were no cases specifically addressing the right to record traffic stops and the relevant Third Circuit decisions were inconsistent, there was insufficient case law to support a finding that the right to record traffic stops was clearly established. Id. Because the right was not clearly established, the officer involved was entitled to qualified immunity. Id. at 262-63. The Third Circuit expressly did not reach the question of whether the First Amendment protects the recording of police activity during a traffic stop, because it did not need to reach that question to decide that the officer should receive qualified immunity. Id. In other contexts, the Supreme Court has noted that, when faced with a close call, “the First Amendment requires [courts] to err on the side of protecting political speech rather than suppressing it.” FEC v. Wisconsin Right to

-4­ is still developing, existing case law is instructive. In Glik, an individual engaged in protected activity when he recorded officers allegedly engaging in excessive force in a public park, “the apotheosis of a public forum.” Glik, 655 F.3d at 84. Individuals have a right to record in all traditionally public spaces, including sidewalks, streets and locations of public protests.
Courts have also extended First Amendment protection to recordings taken on private property, including an individual filming police activity from his or her home or other private property where an individual has a right to be present. See Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) (activist’s posting of a video of “a warrantless and potentially unlawful search of a private residence” on her website was entitled to First Amendment protection); Pomykacz v. Borough of West Wildwood, 438 F.Supp.2d 504, 513 (D. N.J. 2006) (individual was engaging in political activism protected by the First Amendment when she photographed police officer while officer was in police headquarters and in municipal building); Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Pa. 2005) (individual who videotaped state troopers from private property with the owner’s permission was engaged in constitutionally protected speech). The 1991 videotaped assault of Rodney King at the hands of law enforcement officers exemplifies this principle. A private individual awakened by sirens recorded police officers assaulting King from the balcony of his apartment. This videotape provided key evidence of officer misconduct and led to widespread reform. Congress enacted 42 U.S.C. §14141 in response to this incident. Section 14141 granted the U.S. Attorney General the right to seek declaratory or injunctive relief against law enforcement agencies engaged in a pattern or practice of violating the Constitution or federal law.
BPD’s General Order J-16 should affirmatively set forth that individuals have a First Amendment right to record officers in the public discharge of their duties. At numerous points throughout General Order J-16, BPD refers to “Constitutional rights” that form the basis for the policy. For example, General Order J-16 begins with a statement acknowledging that the purpose of the policy is to “to ensure the protection and preservation of every person’s Constitutional rights,” id. at 1, and later refers to bystanders’ “absolute right to photograph and/or video record the enforcement actions of any Police Officer.” Id. at 2. Yet, General Order J-16 never explicitly acknowledges that this right derives from the First Amendment. Particularly given the numerous publicized reports over the past several years alleging that BPD officers violated individuals’ First Amendment rights, BPD should include a specific recitation of the First Amendment rights at issue in General Order J-16.
Other areas of General Order J-16 also require further clarification. For example, General Order J-16 states that officers may not prohibit a person’s ability to observe, photograph, and/or make a video recording of police activity that occurs “in the public domain,” General Order J-16 at 1, but never defines this term. BPD should clarify that the right to record public officials is not limited to streets and sidewalks – it includes areas where individuals have a legal right to be present, including an individual’s home or business, and common areas of public and private facilities and buildings.
Life, Inc., 551 U.S. 449, 457 (2007). See also Bertot v. School Dist. No. 1, Albany County, Wyo., 613 F.2d 245, 252 (10th Cir. 1979) (“We prefer that governmental officials acting in sensitive First Amendment areas err, when they do err, on the side of protecting those interests.”).

-5­ B. Policies should describe the range of prohibited responses to individuals
observing or recording the police.
Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.
Policies should prohibit officers from destroying recording devices or cameras and deleting recordings or photographs under any circumstances. In addition to violating the First Amendment, police officers violate the core requirements of the Fourteenth Amendment procedural due process clause when they irrevocably deprived individuals of their recordings without first providing notice and an opportunity to object. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.”); Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 823 (5th Cir. 2007) (The notice defendant provided to the plaintiff “was insufficient to satisfy due process because [plaintiff] did not receive the notice until after his personal property was allegedly discarded . . . . [D]iscarding [plaintiff’s] personal property in this manner violated his procedural due process rights.”).
BPD’s General Order J-16 addresses the search and seizure of cameras or recording devices. However, the policy does not prohibit more subtle officer actions that nonetheless may infringe upon individuals’ First Amendment rights. BPD should instruct officers not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or other recording devices.
The order also prohibits officers from damaging or erasing the contents of a device without first obtaining a warrant, General Order J-16 at 2. This is not merely a Fourth Amendment question, however. Under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed. BPD’s general order should include clear language prohibiting the deletion or destruction of recordings under any circumstances.
C. Policies should clearly describe when an individual’s actions amount to interference with police duties.
The right to record police activity is limited only by “reasonable time, place, and manner restrictions.” Glik, 655 F.3d at 8; Smith, 212 F.3d at 1333. If a general order permits individuals to record the police unless their actions interfere with police activity, the order should define what it means for an individual to interfere with police activity and, when possible, provide specific examples in order to effectively guide officer conduct and prevent infringement on activities protected by the First Amendment.

-6­ A person may record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (words “likely to cause a fight” are not afforded First Amendment protection); see also Louisiana ex rel. Gremillion v. National Ass'n for the Advancement of Colored People, 366 U.S. 293, 297 (1961) (“criminal conduct . . . cannot have shelter in the First Amendment”). Courts have held that speech is not protected by the First Amendment if it amounts to actual obstruction of a police officer’s investigation – for example, by tampering with a witness or persistently engaging an officer who is in the midst of his or her duties. See Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972) (individual’s speech not protected by the First Amendment where individual persistently tried to engage an officer in conversation while the officer was issuing a summons to a third party on a congested roadside and refused to depart the scene after at least eight requests from officers); King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (individual was not engaged in protected speech when he repeatedly instructed a witness being questioned by a police officer not to respond to questions).
However, an individual’s recording of police activity from a safe distance without any attendant action intended to obstruct the activity or threaten the safety of others does not amount to interference. Nor does an individual’s conduct amount to interference if he or she expresses criticism of the police or the police activity being observed. See City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”); Norwell v. City of Cincinnati, Ohio, 414 U.S. 14, 16 (1973) (“Surely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer.”) Even foul expressions of disapproval towards police officers are protected under the First Amendment.4 See, e.g., Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1377-78 (9th Cir. 1990) (individual who was “making obscene gestures” and “yell[ed] profanities” at an officer engaged in conduct that “fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech—such as stopping or hassling the speaker—is categorically prohibited by the Constitution.”).
Time, place, and manner restrictions on First Amendment speech must “leave open ample alternative channels for communication of the information,” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). BPD’s general order specifically suggests that, if a bystander’s actions are
4 The Supreme Court has carved out an exception for “‘fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky, 315 U.S. at 572. However, the Court has indicated that the fighting words exception “might require a narrower application in cases involving words addressed to a police officer, because ‘a properly trained officer may reasonably be expected to exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’” Hill, 482 U.S. at 462. See also Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003) (detainee’s words “son of a bitch” to police officer were not fighting words); Posr v. Court Officer Shield #207, 180 F.3d 409 (2d Cir. 1999) (individual’s statement to officer “one day you’re gonna get yours,” spoken while in retreat, were not fighting words); Buffkins v. City of Omaha, Douglas County, 922 F.2d 465, 472 (8th Cir. 1991) (finding no evidence that individual caused “an incitement to immediate lawless action” by calling officer “asshole”).

-7­ “approaching the level of a criminal offense,” supervisors should “recommend a less-intrusive location to the bystander from which he/she may continue to observe, photograph, or video record the police activity.” Id. at 5. This is effective language to guide supervisor’s conduct. However, BPD’s general order does not permit or recommend that “members” – presumably officers – provide this information to bystanders before effectuating an arrest. BPD should revise its general order to provide “members” with the same authority.
General Order J-16 must set forth with specificity the narrow circumstances in which a recording individual’s interference with police activity could subject the individual to arrest. Recent publicized interactions between citizen-recorders and BPD officers highlight the need for clear guidance on this issue. See Peter Hermann, Police Allow Bystanders to Tape Arrest, But at What Risk?, The Baltimore Sun, April 3, 2012 (president of the city police union stating that officers “are confused right now” about how to appropriately respond to individuals recording police conduct); see also, Fox45 Top News Stories Video, Fox45 WBFF Baltimore, March 22, 2012 (covering the suspension of a BPD officer who confiscated a cell phone from an individual recording police from a family member’s property)5; Justin Fenton, In Federal Hill, Citizens Allowed to Record Police – But Then There’s Loitering, The Baltimore Sun, February 11, 2012 (BPD officer instructing a citizen-recorder that he would face loitering charges if he failed to move away from the scene of an arrest).
Under “General Information,” General Order J-16 at 2, the policy states that bystanders have an absolute right to record police activity as long as the bystanders’ actions do not fall into one of six exceptions. One exception is that bystanders may not “Interfere with or violate any section of the law, ordinance, code, or criminal or traffic article.” While bystanders clearly may not violate the law, it is less clear under what circumstances an individual’s actions would “interfere” with a law or ordinance. This language encourages officers to use their discretion in inappropriate, and possibly unlawful, ways. Instead, General Order J-16 should encourage officers to provide ways in which individuals can continue to exercise their First Amendment rights as officers perform their duties, rather than encourage officers to look for potential violations of the law in order to restrict the individual’s recording.
D. Policies should provide clear guidance on supervisory review.
First line supervision is a critical component of constitutional policing. Policies should include guidance on when an officer should call a supervisor to the scene and what a supervisor’s responsibilities are once he or she arrives at the scene. A supervisor’s presence at the scene should be required before an officer takes any significant action involving citizen-recorders or recording devices, including a warrantless search or seizure of a camera or recording device or an arrest.6
5 Available at: http://www.foxbaltimore.com/newsroom/top_stories/videos/wbff_vid_12767.shtml.
6 Supervisors should be present at the scene to approve any arrest for conduct related to the use of cameras or recording devices. For example, an arrest for quality of life offenses, including “hindering” or “loitering,” may be based upon the individuals’ alleged interference with police duties while using a recording device. See, e.g., Justin Fenton, In Federal Hill, Citizens Allowed to Record Police – But Then There’s Loitering, The Baltimore Sun, February 11, 2012 (BPD

-8­
BPD should clarify the role of supervisors. A supervisor’s presence at the scene should be required before an officer takes any significant action involving cameras or recording devices, including a warrantless search or seizure. If feasible, supervisors should be present prior to an individual’s arrest related to the use of a recording device. At a minimum, supervisors must be present to approve such arrests before an individual is transported to a holding facility. BPD’s general order does not include mandatory language requiring supervisors to be present during these occurrences, but rather advises supervisors to be present “if possible.” General Order J-16 at 4.
Moreover, BPD’s general order includes inconsistent language regarding when a member should contact a supervisor. On page 4, officers are instructed to notify a supervisor after an individual has been arrested. Later on the same page, under the supervisor’s responsibilities, the supervisor is advised to go to any scene where the actions of a bystander are “approaching the level of a criminal offense.” BPD should reconcile this inconsistency and require, at a minimum, a supervisor’s presence at the scene to approve all arrests or any other significant action by a member.
E. Policies should describe when it is permissible to seize recordings and recording devices.
Policies on individuals’ right to record and observe police should provide officers with clear guidance on the limited circumstances under which it may be permissible to seize recordings and recording devices. An officer’s response to an individual’s recording often implicates both the First and Fourth Amendment, so it’s particularly important that a general order is consistent with basic search and seizure principles. A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Moreover, this guidance must reflect the special protection afforded to First Amendment materials.
Policies should include language to ensure that consent is not coerced, implicitly or explicitly. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (“[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.”). In assessing whether an individual’s consent to search was freely and voluntarily given, Courts may consider “the characteristics of the accused . . . as well as the conditions under which the consent to search was given (such as the officer’s conduct; the number of officers present; and the duration, location, and time of the encounter).” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). BPD’s explanation of the process for obtaining consent includes clear guidelines regarding what steps an officer should take once an individual provides an officer with consent to review a recording. However, BPD’s general order should include language to ensure that consent is not coerced, implicitly or explicitly.
officer instructing a citizen-recorder that he would face loitering charges if he failed to move away from the scene of an arrest).

-9­
Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place, 462 U.S. 696, 701 (1983). Any such seizure must be a “temporary restraint[] where needed to preserve evidence until police c[an] obtain a warrant.” Illinois v. McArthur, 531 U.S. 326, 334 (2001). Seizures must be limited to a reasonable period of time. For example, in Illinois v. McArthur, the Supreme court upheld a police officer’s warrantless seizure of a premises, in part, because police had good reason to fear that evidence would be destroyed and the restraint only lasted for two hours – “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.” Id. at 332. Once seized, officers may not search the contents of the property without first obtaining the warrant. Place, 462 U.S. at 701 & n.3. In the context of the seizure of recording devices, this means that officers may not search for or review an individual’s recordings absent a warrant.
Police departments must also recognize that the seizure of a camera that may contain evidence of a crime is significantly different from the seizure of other evidence because such seizure implicates the First, as well as the Fourth, Amendment. The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct. The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (when an officer “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of material protected by the First Amendment, such action is “plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). See also Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th Cir. 2003) (Where sheriff’s deputies suppressed newspapers critical of the sheriff “before the critical commentary ever reached the eyes of readers, their conduct met the classic definition of a prior restraint.”). An officer’s warrantless seizure of an individual’s recording of police activity is no different. See Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Penn 2005) (By restraining an individual from “publicizing or publishing what he has filmed,” officer’s “conduct clearly amounts to an unlawful prior restraint upon [] protected speech.”); see Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 637 (D.Minn. 1972) (“it is clear to this court that the seizure and holding of the camera and undeveloped film was an unlawful ‘prior restraint’ whether or not the film was ever reviewed.”).
The warrantless seizure of material protected by the First Amendment “calls for a higher hurdle in the evaluation of reasonableness” under the Fourth Amendment. Roaden v. Kentucky, 413 U.S. 496, 504 (1973). Police departments should limit the circumstances under which cameras and recording devices can be seized and the length of the permissible seizure. BPD’s general order does not convey that the warrantless seizure of recording material is different than the warrantless seizure of many other types of evidence, in that it implicates the First, as well as the Fourth, Amendment. General Order J-16 should make it clear to officers that, in the ordinary course of events, there will not be facts justifying the seizure of cameras or recording devices. Moreover, General Order J-16 does not define “temporary” seizure. BPD should clarify how long and under what circumstances an officer may seize a recording device, even temporarily,

-10­ and how the recordings on the device must be maintained after seizure. A policy permitting officers, with supervisory approval, to seize a film for no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant if that film contains critical evidence of a felony crime would diminish the likelihood of constitutional violations.
F. Police departments should not place a higher burden on individuals to exercise their right to record police activity than they place on members of the press.
The Supreme Court has established that “the press does not have a monopoly on either the First Amendment or the ability to enlighten.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 782 (1978). Indeed, numerous courts have held that a private individual’s right to record is coextensive with that of the press. A private individual does not need “press credentials” to record police officers engaged in the public discharge of their duties. See e.g., Glik, 655 F.3d at 83 (“The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.”); Lambert v. Polk County, Iowa, 723 F.Supp. 128, 133 (S.D. Iowa 1989) (“It is not just news organizations . . . who have First Amendment rights to make and display videotapes of events—all of us . . . have that right.”). The First Amendment “attempt[s] to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” including the “promulgation of information and ideas by persons who do not themselves have access to publishing facilities-who wish to exercise their freedom of speech even though they are not members of the press.” New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).
This principal is particularly important in the current age where widespread access to recording devices and online media have provided private individuals with the capacity to gather and disseminate newsworthy information with an ease that rivals that of the traditional news media. See Glik, 655 F.3d at 84 (“[M]any of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.”).
BPD’s general order appropriately does not place a higher burden on individuals to exercise their right to record police activity than in places on members of the press. Policies should not establish different guidelines for media and non-media individuals. BPD’s general order includes language that accomplishes this goal:
“Members of the press and members of the general public enjoy the same rights in any area accessible to the general public.” Id. at 4.
“No individual is required to display ‘press credentials’ in order to exercise his/her right to observe, photograph, or video record police activity taking place in an area accessible to, or within view of, the general public.” Id.

-11­
These two provisions effectively convey that officers should not place a higher burden on individuals to exercise their right to record police activity than in places on members of the press.

3. Conclusion

Comprehensive policies and effective training are critical to ensuring that individuals' First, Fourth and Fourteenth Amendment rights are protected when they record police officers in the public discharge of their duties. If the parties determine that settlement of this matter is feasible, we encourage the parties to reach an agreement that is consistent with the guidance provided above. Please note that this letter is a public document and will be posted on the Civil Rights Division's website. If you have any questions, please feel free to contact us.

Sincerely,

~a~lv\.~~

bl{, JONATHAN M. SMITH

sl§"

Chief Special Litigation Section

 
 U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:11-cv-02888-CCB

Sharp v. Baltimore City Police Department et al

Date Filed: 10/11/2011

Assigned to: Judge Catherine C. Blake

Date Terminated: 04/08/2014

Case in other court: Circuit Court for Baltimore City, 24-C-11- Jury Demand: Plaintiff

005636

Nature of Suit: 440 Civil Rights: Other

Cause: 28:1441 Petition for Removal- Civil Rights Act

Jurisdiction: Federal Question

Plaintiff Christopher Sharp

represented by Deborah A Jeon American Civil Liberties Union of Maryland Foundation 3600 Clipper Mill Rd Ste 350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: jeon@aclu-md.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary E Borja Wiley Rein LLP 1776 K St NW Washington, DC 20006 2027194252 Fax: 2027197049 Email: mborja@wileyrein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin J Kohr Wiley Rein LLP 1776 K St NW Washington, DC 20006 12027197493 Fax: 12027197049 Email: bkohr@wileyrein.com PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Michael Smith Wiley Rein LLP 1776 K St NW Washington, DC 20006 12027197297 Fax: 12027197049 Email: csmith@wileyrein.com ATTORNEY TO BE NOTICED

Richard A Simpson

V. Defendant Baltimore City Police Department

Wiley Rein LLP 1776 K St NW Washington, DC 20006 12027197314 Fax: 12027197049 Email: rsimpson@wileyrein.com ATTORNEY TO BE NOTICED
represented by Mark H Grimes Baltimore Police Department Office of Legal Affairs 601 E Fayette St Baltimore, MD 21202 14103962495 Fax: 14105390536 Email: mark.grimes@baltimorepolice.org TERMINATED: 09/23/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Russell Lundy Baltimore City Law Department 100 N Holliday St Room 101 Baltimore, MD 21202 14103962496 Fax: 14103962126 Email: chris.lundy@baltimorepolice.org ATTORNEY TO BE NOTICED
Daniel C Beck Baltimore City Law Department Legal Affairs Division 100 N Holliday St Ste 101 Baltimore, MD 21202 14103963297 Fax: 14103962126 Email: Daniel.Beck@BaltimorePolice.org ATTORNEY TO BE NOTICED
Daniel J Sparaco Baltimore City Law Dept 100 Holliday St Ste 101 City Hall Baltimore, MD 21202 14103963268 Fax: 14105767203 Email: daniel.sparaco@baltimorecity.gov ATTORNEY TO BE NOTICED

Defendant Frederick H. Bealefeld, III in his official capacity as commissioner of the Baltimore City Police Department
Defendant Unknown Police Officers Nos. 1, 2 and 3 in both their personal capacities and their official capacities as officers of the Baltimore City Police Department

Kara K Lynch Baltimore City Law Department 100 N Holliday St Room 101 Baltimore, MD 21201 14103962496 Email: Kara.Lynch@baltimorepolice.org ATTORNEY TO BE NOTICED
Lindsay Cohn Cooper Baltimore City Department of Law 100 N Holliday St Room 106 Baltimore, MD 21202 14103963202 Email: lindsay.cooper@baltimorecity.gov TERMINATED: 04/30/2013 ATTORNEY TO BE NOTICED
represented by Mark H Grimes (See above for address) TERMINATED: 09/23/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Russell Lundy (See above for address) ATTORNEY TO BE NOTICED
Daniel C Beck (See above for address) ATTORNEY TO BE NOTICED
Daniel J Sparaco (See above for address) ATTORNEY TO BE NOTICED
Kara K Lynch (See above for address) ATTORNEY TO BE NOTICED
Lindsay Cohn Cooper (See above for address) TERMINATED: 04/30/2013 ATTORNEY TO BE NOTICED
represented by Unknown Police Officers Nos. 1, 2 and 3 PRO SE
Mark H Grimes (See above for address) TERMINATED: 09/23/2013

Amicus USA, .
Date Filed 10/11/2011 10/11/2011 10/11/2011 10/11/2011

ATTORNEY TO BE NOTICED
represented by Rashida Jamila Ogletree United States Department of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 12023053712 Fax: 12025144883 Email: rashida.ogletree@usdoj.gov ATTORNEY TO BE NOTICED
Samantha Kay Trepel United States Department of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 12023053204 Fax: 12025144883 Email: samantha.trepel@usdoj.gov ATTORNEY TO BE NOTICED
Timothy Donald Mygatt United States Department of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 12023053334 Fax: 12025144883 Email: timothy.mygatt@usdoj.gov ATTORNEY TO BE NOTICED
# Docket Text
1 NOTICE OF REMOVAL from Circuit Court for Baltimore City, case number 24-C-11-005636. ( Filing fee $ 350 receipt number 14637054608), filed by Baltimore City Police Department, Frederick H. Bealefeld, III. (Attachments: # 1 Civil Cover Sheet)(jnls, Deputy Clerk) (Entered: 10/11/2011)
2 COMPLAINT against Baltimore City Police Department, Frederick H. Bealefeld, III, Unknown Police Officers Nos. 1, 2 and 3, filed by Christopher Sharp. (Attachments: # 1 Case Information Report)(jnls, Deputy Clerk) (Entered: 10/11/2011)
3 Summons Issued as to Baltimore City Police Department. (jnls, Deputy Clerk) (Entered: 10/11/2011)
Document Nos 2-3 are copies of documents filed in the Circuit Court for Baltimore City (jnls, Deputy Clerk) (Entered: 10/11/2011)

10/11/2011 10/13/2011
10/17/2011
10/17/2011 10/17/2011 10/25/2011 10/25/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011
11/07/2011
11/14/2011

4 STANDING ORDER concerning removal. Signed by Judge Benson Everett Legg on 10/11/11. (jnls, Deputy Clerk) (Entered: 10/11/2011)
5 MOTION for Extension of Time to File Response/Reply to Complaint by Baltimore City Police Department, Frederick H. Bealefeld, III. Responses due by 10/31/2011 (Attachments: # 1 Text of Proposed Order)(Sparaco, Daniel) (Entered: 10/13/2011)
6 ORDER granting 5 Motion for Extension of Time for Balto City Police Dept and Frederick Bealefeld to respond to the complaint to 11/14/11. Signed by Judge Benson Everett Legg on 10/14/11 (cag, Deputy Clerk) (Entered: 10/17/2011)
7 Local Rule 103.3 Disclosure Statement by Christopher Sharp. (Simpson, Richard) (Entered: 10/17/2011)
8 Local Rule 103.3 Disclosure Statement by Baltimore City Police Department. (Sparaco, Daniel) (Entered: 10/17/2011)
9 RESPONSE re 4 Order filed by Baltimore City Police Department, Frederick H. Bealefeld, III. (Sparaco, Daniel) (Entered: 10/25/2011)
10 Local Rule 103.5(a) Certification. (Attachments: # 1 Exhibit A)(Sparaco, Daniel) (Entered: 10/25/2011)
11 NOTICE of Appearance by Craig Michael Smith on behalf of All Plaintiffs (Smith, Craig) (Entered: 11/07/2011)
12 MOTION to Appear Pro Hac Vice for Mary E. Borja ( Filing fee $ 50, receipt number 0416-3234629.) by Christopher Sharp (Smith, Craig) (Entered: 11/07/2011)
13 MOTION to Appear Pro Hac Vice for Benjamin J. Kohr ( Filing fee $ 50, receipt number 0416-3234660.) by Christopher Sharp (Smith, Craig) (Entered: 11/07/2011)
14 NOTICE of Appearance by Richard A Simpson on behalf of Christopher Sharp (Simpson, Richard) (Entered: 11/07/2011)
15 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice for attorney Mary E. Borja on behalf of Christopher Sharp. Directing attorney Mary E. Borja to register on-line for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp Signed by Clerk on 11/7/11. (nrm, Deputy Clerk) (Entered: 11/07/2011)
16 PAPERLESS ORDER granting 13 Motion to Appear Pro Hac Vice for attorney Benjamin J. Kohr on behalf of Christopher Sharp. Directing attorney Benjamin J. Kohr to register on-line for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp Signed by Clerk on 11/7/11. (nrm, Deputy Clerk) (Entered: 11/07/2011)
17 (WITHDRAWN)MOTION for Partial Summary Judgment by Baltimore City Police Department, Frederick H. Bealefeld, III Responses due by 12/1/2011 (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Grimes, Mark) Modified on 12/1/2011 (aos, Deputy Clerk).

11/22/2011 11/28/2011 11/30/2011 12/09/2011 12/14/2011 12/21/2011 01/10/2012 01/11/2012
01/12/2012 01/18/2012

(Entered: 11/14/2011)
18 MOTION to Withdraw Docket Entry #17 and Re-file Response to Complaint by November 30, On Consent by Baltimore City Police Department, Frederick H. Bealefeld, III Responses due by 12/9/2011 (Attachments: # 1 Text of Proposed Order)(Sparaco, Daniel) (Entered: 11/22/2011)
19 PAPERLESS ORDER GRANTING 18 MOTION to Withdraw Docket Entry #17 and Re-file Response to Complaint by November 30, On Consent. Signed by Judge Benson Everett Legg on 11/28/2011. (Legg, Benson Everett) (Entered: 11/28/2011)
20 MOTION to Dismiss for Failure to State a Claim by Baltimore City Police Department, Frederick H. Bealefeld, III Responses due by 12/19/2011 (Attachments: # 1 Supplement Memorandum of Law, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Text of Proposed Order)(Grimes, Mark) (Entered: 11/30/2011)
21 Joint MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Dismiss for Failure to State a Claim by Baltimore City Police Department, Frederick H. Bealefeld, III, Christopher Sharp Responses due by 12/27/2011 (Attachments: # 1 Text of Proposed Order)(Smith, Craig) (Entered: 12/09/2011)
22 PAPERLESS ORDER GRANTING 21 Joint MOTION for Extension of Time to File Response as to 20 MOTION to Dismiss for Failure to State a Claim . Responses due by 12/21/2011. Signed by Judge Benson Everett Legg on 12/14/2011. (Legg, Benson Everett) (Entered: 12/14/2011)
23 RESPONSE in Opposition re 20 MOTION to Dismiss for Failure to State a Claim filed by Christopher Sharp. Replies due by 1/9/2012. (Attachments: # 1 56(d) Decl., # 2 56(d) Decl. Ex. A, # 3 56(d) Decl. Ex. B, # 4 56(d) Decl. Ex. C, # 5 56(d) Decl. Ex. D)(Smith, Craig) (Entered: 12/21/2011)
24 NOTICE by USA Statement of Interest (Delaney, Joshua) (Entered: 01/10/2012)
25 (FILED IN ERROR- Atty Req)REPLY to Response to Motion re 20 MOTION to Dismiss for Failure to State a Claim filed by Baltimore City Police Department, Frederick H. Bealefeld, III. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, #8 Text of Proposed Order)(Grimes, Mark) Modified on 1/12/2012 (aos, Deputy Clerk). (Entered: 01/12/2012)
26 REPLY to Response to Motion re 20 MOTION to Dismiss for Failure to State a Claim filed by Baltimore City Police Department, Frederick H. Bealefeld, III. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Text of Proposed Order)(Grimes, Mark) (Entered: 01/12/2012)
27 NOTICE of Hearing re: 20 Motion to Dismiss. Motion Hearing set for 2/13/2012 at 10:00 a.m. in Courtroom 7A, 101 West Lombard Street, Baltimore, Maryland 21201, before Judge Benson Everett Legg. (daf, Chambers) (Entered: 01/18/2012)

02/02/2012 02/03/2012 02/03/2012 02/10/2012
02/13/2012
02/13/2012 02/17/2012
02/27/2012 03/13/2012 03/16/2012 03/19/2012 03/19/2012 03/19/2012 03/23/2012

28 NOTICE by USA of Intent to Appear (Delaney, Joshua) (Entered: 02/02/2012)
29 NOTICE of Appearance by Rashida Jamila Ogletree on behalf of USA (aos, Deputy Clerk) (Entered: 02/03/2012)
30 NOTICE of Appearance by Timothy Donald Mygatt on behalf of USA (aos, Deputy Clerk) (Entered: 02/03/2012)
31 ORDER Scheduling hearing on Defendants Motion to Dismiss or for Summary Judgment for Monday, February 13, 2012, at 10 a.m. Signed by Judge Benson Everett Legg on 2/10/12 (cags, Deputy Clerk) (Entered: 02/10/2012)
32 Motion Hearing held on 2/13/2012 re 20 MOTION to Dismiss for Failure to State a Claim filed by Frederick H. Bealefeld, III, Baltimore City Police Department before Judge Benson Everett Legg. (Court Reporter: Jackie Sovich) (kam, Deputy Clerk) (Entered: 02/13/2012)
Oral MOTION to Bifurcate by Baltimore City Police Department, Frederick H. Bealefeld, III, Unknown Police Officers Nos. 1, 2 and 3. (kam, Deputy Clerk) (Entered: 02/21/2012)
33 LETTER ORDER denying 20 Motion to Dismiss for Failure to State a Claim; directing that a discovery plan and proposed schedule be submitted to the court by February 27, 2012. Signed by Judge Benson Everett Legg on 2/17/2012. (aos, Deputy Clerk) (Entered: 02/21/2012)
34 STATUS REPORT (Joint Discovery Plan and Proposed Schedule) by Baltimore City Police Department, Frederick H. Bealefeld, III, Christopher Sharp. (Smith, Craig) (Entered: 02/27/2012)
35 NOTICE of Appearance by Lindsay Cohn Cooper on behalf of Baltimore City Police Department, Frederick H. Bealefeld, III (Cooper, Lindsay) (Entered: 03/13/2012)
Telephone Conference re: Settlement Conference and Discovery Plan held on 3/16/2012 before Judge Benson Everett Legg. ( Recorded on Tape) (kam, Deputy Clerk) (Entered: 04/03/2012)
36 LETTER ORDER memorializing agreements reached during teleconference held on March 16, 2012. Signed by Judge Benson Everett Legg on 3/19/2012. (aos, Deputy Clerk) (Entered: 03/19/2012)
37 ORDER re: Confidentiality of discovery material and inadvertent disclosure of privileged material. Signed by Judge Benson Everett Legg on 3/19/2012. (aos, Deputy Clerk) (Entered: 03/19/2012)
38 ORDER REFERRING CASE to Magistrate Judge Paul W. Grimm for Settlement. Signed by Judge Benson Everett Legg on 3/19/12 (cags, Deputy Clerk) (Entered: 03/19/2012)
39 MOTION for Extension of Time by Baltimore City Police Department Responses due by 4/9/2012 (Attachments: # 1 Exhibit Exhibit 1 (Declaration of Christopher Sharp), # 2 Text of Proposed Order)(Cooper,

03/26/2012
03/29/2012 03/30/2012 04/03/2012 04/03/2012 04/04/2012 04/04/2012 04/05/2012
04/05/2012 04/06/2012 05/02/2012

Lindsay) (Entered: 03/23/2012)
40 RESPONSE in Opposition re 39 MOTION for Extension of Time and Cross-Motion for a Scheduling Conference filed by Christopher Sharp. Replies due by 4/12/2012. (Attachments: # 1 Declaration of Mary E. Borja, # 2 Exhibit 1 to Declaration of Mary E. Borja)(Smith, Craig) (Entered: 03/26/2012)
41 REPLY to Response to Motion re 39 MOTION for Extension of Time , RESPONSE re 40 Response in Opposition to Motion, filed by Baltimore City Police Department. (Cooper, Lindsay) (Entered: 03/29/2012)
42 PAPERLESS ORDER FINDING AS MOOT 39 Motion for Extension of Time. Signed by Judge Benson Everett Legg on 3/30/2012. (Legg, Benson Everett) (Entered: 03/30/2012)
43 STATUS REPORT on Efforts to Identify Unknown Officers by Christopher Sharp. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Smith, Craig) (Entered: 04/03/2012)
44 STATUS REPORT by Baltimore City Police Department, Frederick H. Bealefeld, III. (Attachments: # 1 Exhibit #1, (FILED IN ERROR-ATTY TO REFILE) (2) Exhibit #2)(Grimes, Mark) Modified on 4/5/2012 (aos, Deputy Clerk). (Entered: 04/03/2012)
45 PAPERLESS ORDER NOTIFYING Counsel that a telephone scheduling conference is hereby scheduled for Thursday, April 5, 2012 at 4:00 PM to select a date for the settlement conference. Signed by Magistrate Judge Paul W. Grimm on 04/04/12. (Grimm, Paul) (hlw) (Entered: 04/04/2012)
46 PAPERLESS ORDER THANKING Counsel for their patience and noting that, for tomorrow's scheduling call, Plaintiff's Counsel should please call all other Counsel and then call chambers. Signed by Magistrate Judge Paul W. Grimm on 04/04/12. (Grimm, Paul) (hlw) (Entered: 04/04/2012)
47 QC NOTICE: 44 Status Report filed by Frederick H. Bealefeld, III, Baltimore City Police Department was filed incorrectly. **In Exhibit #2 of the above filing the documents have been filed in landscape view. To correct this problem, please file a supplemental filing with Exhibit #2 attached and link it back to the original filing ECF 44 . Exhibit #2 has been noted as FILED IN ERROR, and the document link has been disabled. (aos, Deputy Clerk) (Entered: 04/05/2012)
48 Supplemental to 44 Status Report filed by Baltimore City Police Department, Frederick H. Bealefeld, III . (Attachments: # 1 Exhibit #2)(Grimes, Mark) (Entered: 04/05/2012)
49 ORDER Scheduling Settlement Conference. Signed by Magistrate Judge Paul W. Grimm on 4/6/2012. (aos, Deputy Clerk) (Entered: 04/06/2012)
51 Consent MOTION to Withdraw 50 MOTION for Clerk's Entry of Default for want of answer or other defense against Defendants Baltimore City Police Department and Commissioner Frederick H. Bealefeld, III by Christopher Sharp Responses due by 5/21/2012 (Attachments: # 1 Text of Proposed Order)(Smith, Craig) (Entered: 05/02/2012)

05/15/2012 05/23/2012 05/24/2012
05/25/2012
06/27/2012 07/11/2012 07/11/2012 07/27/2012 08/13/2012
08/17/2012 08/24/2012
08/26/2012

52 NOTICE of Appearance by Christopher Russell Lundy on behalf of Baltimore City Police Department, Frederick H. Bealefeld, III (Lundy, Christopher) (Entered: 05/15/2012)
Telephone Status Conference held on 5/23/2012 before Magistrate Judge Paul W. Grimm. (mps, Deputy Clerk) (Entered: 05/24/2012)
53 PAPERLESS ORDER NOTIFYING Counsel that, as discussed in the May 23, 2012 telephone conference call, the Wednesday, May 30, 2012 settlement conference is hereby cancelled. The parties are directed to submit an informal status report within seven (7) days that discusses what additional fact discovery is needed for the parties to be in a position to assess standing. Signed by Magistrate Judge Paul W. Grimm on 05/24/12. (Grimm, Paul) (hlw) (Entered: 05/24/2012)
54 ORDER granting 51 Motion to Withdraw 50 MOTION for Clerk's Entry of Default for want of answer or other defense against Defendants Baltimore City Police Department and Commissioner Frederick H. Bealefeld, III. Signed by Judge Benson Everett Legg on 5/25/2012. (aos, Deputy Clerk) (Entered: 05/25/2012)
Telephone Conference re: Status of Case/Scheduling held on 6/27/2012 before Judge Benson Everett Legg. ( Recorded on Tape) (kam, Deputy Clerk) (Entered: 06/29/2012)
55 LETTER ORDER memorializing decisions made during teleconference held on June 27, 2012. Signed by Judge Benson Everett Legg on 7/11/2012. (aos, Deputy Clerk) (Entered: 07/11/2012)
Magistrate Judge Paul W. Grimm no longer assigned to case. (aos, Deputy Clerk) (Entered: 07/11/2012)
56 ANSWER to 2 Complaint by Baltimore City Police Department, Frederick H. Bealefeld, III.(Grimes, Mark) (Entered: 07/27/2012)
57 MOTION to Quash Subpoena and for Protective Order by Christopher Sharp Responses due by 8/30/2012 (Attachments: # 1 Memorandum of Law, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Certificate of Compliance with LR 104.7, # 7 Text of Proposed Order)(Smith, Craig) (Entered: 08/13/2012)
58 NOTICE of Appearance by Samantha Kay Trepel on behalf of USA (jnls, Deputy Clerk) (Entered: 08/23/2012)
59 Emergency MOTION for Extension of Time by Baltimore City Police Department Responses due by 9/10/2012 (Attachments: # 1 Exhibit Exhibit 1, # 2Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9Exhibit Exhibit 9, # 10 Text of Proposed Order)(Cooper, Lindsay) (Entered: 08/24/2012)
60 RESPONSE to Motion re 59 Emergency MOTION for Extension of Time filed by Christopher Sharp. Replies due by 9/13/2012. (Attachments: # 1 Exhibit 1)(Smith, Craig) (Entered: 08/26/2012)

08/27/2012 08/27/2012
08/30/2012 09/17/2012 09/17/2012 09/17/2012 09/17/2012 09/18/2012 09/18/2012 09/18/2012 09/18/2012 09/24/2012 10/22/2012

61 LETTER ORDER re: denying 59 Emergency Motion for Extension of Time. Signed by Judge Benson Everett Legg on 8/27/12. (apls, Deputy Clerk) (Entered: 08/27/2012)
62 (DUPLICATE FILING)LETTER ORDER denying 59 Emergency MOTION for Extension of Time filed by Baltimore City Police Department. Signed by Judge Benson Everett Legg on 8/27/2012. (aos, Deputy Clerk) Modified on 8/27/2012 (aos, Deputy Clerk). (Entered: 08/27/2012)
63 RESPONSE in Opposition re 57 MOTION to Quash Subpoena and for Protective Order filed by Baltimore City Police Department, Frederick H. Bealefeld, III. Replies due by 9/17/2012. (Attachments: # 1 Text of Proposed Order)(Grimes, Mark) (Entered: 08/30/2012)
64 STATUS REPORT Jointly Submitted Pursuant to July 11, 2012, Order by Christopher Sharp. (Smith, Craig) (Entered: 09/17/2012)
65 REPLY to Response to Motion re 57 MOTION to Quash Subpoena and for Protective Order filed by Christopher Sharp. (Attachments: # 1 Exhibit A, Decl. of Craig Smith and Attached Exs. 1-2, # 2 Notice of Filing Exhibit Under Seal)(Smith, Craig) (Entered: 09/17/2012)
66 -SEALED - NOTICE of Filing Under Seal Exhbit B to Reply of Christopher Sharp, Decl. of Mary E. Borja and Attached Exs. 1-8 by Christopher Sharp re 65Reply to Response to Motion, (Smith, Craig) (Entered: 09/17/2012)
67 MOTION to Seal Exhibit B to Christopher Sharp's Reply Brief by Christopher Sharp Responses due by 10/4/2012 (Attachments: # 1 Text of Proposed Order)(Smith, Craig) (Entered: 09/17/2012)
68 ORDER granting 67 MOTION to Seal Exhibit B to Christopher Sharp's Reply Brief. Signed by Judge Benson Everett Legg on 9/18/2012. (aos, Deputy Clerk) (Entered: 09/18/2012)
69 MOTION to Seal Plaintiff Christopher Sharp's Motion To Quash or for Protective Order (Dkt. 57) by Christopher Sharp Responses due by 10/5/2012 (Attachments: # 1 Memorandum of Law, # 2 Text of Proposed Order)(Smith, Craig) (Entered: 09/18/2012)
70 ORDER granting 69 MOTION to Seal Plaintiff Christopher Sharp's Motion To Quash or for Protective Order (Dkt. 57). Signed by Judge Benson Everett Legg on 9/18/2012. (aos, Deputy Clerk) (Entered: 09/18/2012)
Telephone Conference held on 9/18/2012 before Judge Benson Everett Legg. ( Recorded on Tape) (kam, Deputy Clerk) (Entered: 10/01/2012)
71 ORDER to Counsel memorializing teleconference held on September 18, 2012. Signed by Judge Benson Everett Legg on 9/24/2012. (aos, Deputy Clerk) (Entered: 09/25/2012)
72 NOTICE of Appearance by Daniel C Beck on behalf of Baltimore City Police Department, Frederick H. Bealefeld, III (Beck, Daniel) (Entered:

11/06/2012
11/06/2012 11/13/2012 11/14/2012 01/24/2013 01/25/2013 02/04/2013
02/07/2013 02/13/2013 03/01/2013 03/01/2013 03/08/2013 04/01/2013 04/03/2013

10/22/2012)
73 PAPERLESS ORDER- The teleconference has been rescheduled for tomorrow, November 7, 2012, at 11 a.m. Accordingly, counsel are directed to file a joint status report no later than close of business today. See Docket No. 71. Signed by Judge Benson Everett Legg on 11/06/2012. (Entered: 11/06/2012)
74 STATUS REPORT Joint by Christopher Sharp. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kohr, Benjamin) (Entered: 11/06/2012)
75 LETTER ORDER memorializing teleconference held on November 7, 2012. Signed by Judge Benson Everett Legg on 11/13/2012. (aos, Deputy Clerk) (Entered: 11/13/2012)
76 ORDER REFERRING CASE to Magistrate Judge Susan K. Gauvey for Discovery Dispute. Signed by Judge Benson Everett Legg on 11/14/12 (cags, Deputy Clerk) (Entered: 11/14/2012)
Telephone Conference re Discovery Dispute held on 1/24/2013 before Magistrate Judge Susan K. Gauvey. (aos, Deputy Clerk) (Entered: 01/24/2013)
77 LETTER ORDER. Signed by Magistrate Judge Susan K. Gauvey on 1/25/13. (apls, Deputy Clerk) (Entered: 01/28/2013)
78 MOTION to Withdraw as Attorney by Baltimore City Police Department, Frederick H. Bealefeld, III, Unknown Police Officers Nos. 1, 2 and 3 Responses due by 2/22/2013 (Attachments: # 1 Text of Proposed Order)(Cooper, Lindsay) (Entered: 02/04/2013)
Case reassigned to Judge Catherine C. Blake. Judge Benson Everett Legg no longer assigned to the case. (cags, Deputy Clerk) (Entered: 02/07/2013)
79 NOTICE of Appearance by Kara K Lynch on behalf of Baltimore City Police Department, Frederick H. Bealefeld, III (Lynch, Kara) (Entered: 02/13/2013)
80 ORDER granting in part and denying in part 57 Motion to Quash. Signed by Magistrate Judge Susan K. Gauvey on 3/1/13. (aos, Deputy Clerk) Modified on 3/8/2013 (aos, Deputy Clerk). (Entered: 03/01/2013)
81 LETTER ORDER re Sealed Opinion. Signed by Magistrate Judge Susan K. Gauvey on 3/1/13. (aos, Deputy Clerk) (Entered: 03/04/2013)
82 ORDER unsealing 80 -SEALED-ORDER granting in part and denying in part 57 Motion to Quash. Signed by Magistrate Judge Susan K. Gauvey on 3/8/13. (aos, Deputy Clerk) (Entered: 03/08/2013)
83 LETTER ORDER setting date for telephone conference. Signed by Magistrate Judge Susan K. Gauvey on 4/1/2013. (aos, Deputy Clerk) (Entered: 04/01/2013)
Telephone Conference re discovery dispute held on 4/3/2013 before Magistrate Judge Susan K. Gauvey. (aos, Deputy Clerk) (Entered:

04/03/2013 04/16/2013 04/30/2013 04/30/2013 05/15/2013 05/16/2013 06/28/2013
07/02/2013
07/03/2013 07/08/2013 07/24/2013 07/25/2013

04/03/2013)
84 MOTION and MARGINAL ORDER granting Leave for limited discovery. Signed by Magistrate Judge Susan K. Gauvey on 4/3/2013. (aos, Deputy Clerk) (Entered: 04/04/2013)
85 STATUS REPORT Joint Status Report by Baltimore City Police Department. (Lundy, Christopher) (Entered: 04/16/2013)
86 PAPERLESS Correspondence to counsel: An updated status report is requested by May 15, 2013. (Blake, Catherine) (Entered: 04/30/2013)
87 PAPERLESS ORDER granting 78 Motion to Withdraw as Attorney. Attorney Lindsay Cohn Cooper terminated. Signed by Judge Catherine C. Blake on 4/30/2013. (aos, Deputy Clerk) (Entered: 04/30/2013)
88 STATUS REPORT Jointly Submitted Pursuant to April 30, 2013, Order by Christopher Sharp. (Smith, Craig) (Entered: 05/15/2013)
89 MARGINAL ORDER approving 88 STATUS REPORT Jointly Submitted Pursuant to April 30, 2013, Order. Signed by Judge Catherine C. Blake on 5/16/2013. (aos, Deputy Clerk) (Entered: 05/16/2013)
90 (FILED IN ERROR- ATTY TO REFILE) MOTION to Dismiss for Failure to State a Claim by Baltimore City Police Department, Frederick H. Bealefeld, III Responses due by 7/15/2013 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order, # 4 Supplement Memorandum of Law)(Grimes, Mark) Modified on 7/2/2013 (aos, Deputy Clerk). (Entered: 06/28/2013)
91 Corrected MOTION to Dismiss for Failure to State a Claim by Baltimore City Police Department, Frederick H. Bealefeld, III Responses due by 7/19/2013 (Attachments: # 1 Supplement, # 2 Supplement, # 3 Appendix, # 4 Exhibit, # 5 Exhibit, # 6 Text of Proposed Order)(Grimes, Mark) (Entered: 07/02/2013)
92 Consent MOTION for Extension of Time to File Response/Reply as to 91 Corrected MOTION to Dismiss for Failure to State a Claim by Christopher Sharp. Responses due by 7/22/2013 (Attachments: # 1 Text of Proposed Order)(Smith, Craig) (Entered: 07/03/2013)
93 PAPERLESS ORDER Granting 92 Motion for Extension of Time to File Response re 91 Corrected MOTION to Dismiss. Responses due by 7/30/2013. Signed by Judge Catherine C. Blake on July 8, 2013. (Blake, Catherine) (Entered: 07/08/2013)
94 Consent MOTION for Extension of Time to File Response/Reply as to 91 Corrected MOTION to Dismiss for Failure to State a Claim by Christopher Sharp Responses due by 8/12/2013 (Attachments: # 1 Text of Proposed Order)(Smith, Craig) (Entered: 07/24/2013)
95 PAPERLESS ORDER Granting 94 Motion for Extension of Time to File Response re 91 Corrected MOTION to Dismiss for Failure to State a Claim. Responses due by 8/6/2013. Signed by Judge Catherine C. Blake on July 25, 2013. (Blake, Catherine) (Entered: 07/25/2013)

08/05/2013 08/19/2013 08/19/2013 09/06/2013
09/19/2013 09/23/2013 03/21/2014 03/26/2014 03/28/2014 04/07/2014 04/08/2014
04/11/2014
	  

96 RESPONSE in Opposition re 91 Corrected MOTION to Dismiss for Failure to State a Claim filed by Christopher Sharp. Replies due by 8/22/2013. (Attachments: # 1 Exhibit Declaration)(Smith, Craig) (Entered: 08/05/2013)
97 Consent MOTION for Extension of Time to File Response/Reply by Baltimore City Police Department. Responses due by 9/6/2013 (Beck, Daniel) (Entered: 08/19/2013)
98 PAPERLESS ORDER Granting 97 Motion for Extension of Time to File Reply re 91 Corrected MOTION to Dismiss. Replies due by 9/6/2013. Signed by Judge Catherine C. Blake on August 19, 2913. (Blake, Catherine) (Entered: 08/19/2013)
99 RESPONSE in Support re 91 Corrected MOTION to Dismiss for Failure to State a Claim filed by Baltimore City Police Department, Frederick H. Bealefeld, III. Replies due by 9/23/2013. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Appendix)(Grimes, Mark) (Entered: 09/06/2013)
100 MOTION to Withdraw as Attorney by Baltimore City Police Department, Frederick H. Bealefeld, III Responses due by 10/7/2013 (Attachments: # 1 Text of Proposed Order)(Grimes, Mark) (Entered: 09/19/2013)
101 PAPERLESS ORDER granting 100 Motion to Withdraw as Attorney. Attorney Mark H Grimes terminated. Signed by Judge Catherine C. Blake on 9/23/2013. (aos, Deputy Clerk) (Entered: 09/23/2013)
102 PAPERLESS Correspondence to counsel: An updated Status Report in this case is requested by March 27, 2014. (Blake, Catherine) (Entered: 03/21/2014)
103 STATUS REPORT Submitted Jointly Pursuant to March 21, 2014 Request by Christopher Sharp. (Smith, Craig) (Entered: 03/26/2014)
104 MARGINAL ORDER denying without prejudice pending settlement 91 Corrected MOTION to Dismiss for Failure to State a Claim. Signed by Judge Catherine C. Blake on 3/28/2014. (aos, Deputy Clerk) (Entered: 03/28/2014)
105 STIPULATION of Dismissal Filed on Behalf of the Parties by Christopher Sharp. (Attachments: # 1 Exhibit Settlement Agreement)(Smith, Craig) (Entered: 04/07/2014)
106 ORDER Granting 105 Stipulation of Dismissal filed by Christopher Sharp; Dismissing with prejudice claims against Baltimore City Police Dept. and Anthony Batts . Signed by Judge Catherine C. Blake on 04/08/2014. (bas, Deputy Clerk) Modified on 4/15/2014 (bas, Deputy Clerk). (Entered: 04/09/2014)
Magistrate Judge Susan K. Gauvey no longer assigned to case. (bas, Deputy Clerk) (Entered: 04/11/2014)