Newark will train officers on new policy that affirms citizens’ rights to videotape officers on duty

NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ), Seton Hall Law School’s Center for Social Justice (CSJ) and the City of Newark have reached a successful settlement in the case of Khaliah Fitchette, a Newark teenager who was illegally detained by police for using her cellphone to record an incident on a public bus in March 2010.

In addition to the settlement, Police Director Samuel A. DeMaio has issued a training memorandum that affirms the rights of citizens to record police officers performing their duties and makes clear that officers cannot confiscate, delete, or demand to view a citizen’s photos or video without a warrant. The memorandum was issued in November 2011, as Fitchette’s lawsuit was pending.

The department will train officers on the new policy.

“We are pleased that the Newark Police Department has adopted a policy that clearly articulates and respects the constitutional rights of citizens to record police activity,” said Seton Hall Law Professor Barbara Moses, who, along with a number of Seton Hall Law students, represented Fitchette as a cooperating attorney for the ACLU-NJ. “We hope this policy prevents incidents like the one involving Khaliah Fitchette from ever happening again.”

Alexander Shalom, Policy Counsel for the ACLU-NJ, said other departments should follow Newark’s lead.

“With video technology so prevalent now, police officers have to clearly understand exactly what rights citizens have when they film in public,” said Shalom. “Newark’s policy makes clear distinctions about citizens’ rights, and every law enforcement department in New Jersey should adopt these kinds of guidelines.”

Fitchette, who was a high school honors student when she was arrested by police, said she hopes her case educates the public about their rights when it comes to recording police.

“I’m glad this is resolved and I can put this behind me,” said Fitchette, who is now a sophomore at Cornell University. “It’s important for everyone to know their rights, especially since most people now have cellphones with video capabilities.”

Fitchette was riding a public bus through downtown Newark after school on the afternoon of March 22, 2010. When the bus rolled down a hill, a seemingly intoxicated man fell from his seat and into the aisle, creating a scene. The driver pulled over and called Newark Police for assistance. Fitchette, who habitually used her phone to record or take photographs, began recording the incident. When the police arrived, an officer ordered Fitchette to stop recording and turn off the phone.

Fitchette stopped recording, but refused to turn off the phone to avoid missing any calls from her mom. The officer grabbed Fitchette by the arm and pulled her off the bus. One officer seized her phone and deleted the video. The police handcuffed and detained Fitchette for more than an hour, ignoring her pleas to call her mother. They finally dropped a tearful Fitchette at her mother’s workplace.

The ACLU-NJ and CSJ filed a lawsuit on Fitchette’s behalf on March 28, 2010, alleging the officers violated her constitutional rights to free expression. The lawsuit also alleged the search and seizure of Fitchette’s phone was illegal.

Recognizing the importance of taping police officers in public, the ACLU has challenged illegal police confiscations of cameras, which has become more prevalent across the country, including in New Jersey.

In July, the ACLU-NJ released a new smartphone application, “Police Tape,” which allows people to record and store interactions with police securely and discreetly. The app is available for free on Androids and iPhones.

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