Update: In February of 2016, in a departure from well-established law, a federal judge ruled that the First Amendment doesn't give citizens the right to "photograph police absent any criticism or challenge to police conduct." Though the ruling could be overturned and doesn't set precedent throughout the country, it's worth noting. (Learn more about the case at our blog.)
You see an officer talking to a guy on the street, and things are getting heated. You’re a concerned citizen who has seen how helpful a bystander’s home video can be in determining whether a police officer acted lawfully. After all, isn’t a recording the most accurate way to observe and report police conduct? Aren’t you simply doing your civic duty to document the interaction?
Or are you not allowed to record what you see and hear? Could your act of recording be considered some form of interference, for example?
Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) an officer in public while he is performing his duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. (See Is it legal to film or record the police?)
The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).)
CAN YOU SUE?
If it’s legal for you to record a police officer in a given situation, is it illegal for that officer to stop you from recording? If he does stop you, can you sue? For information on this topic, see Can you sue the police if they stop you from recording them?
As with most constitutional rights, the right to record officers has limits. There are limits having to do with the time, manner, and place of recording. And complicating matters is the fact that the exceptions differ depending on where you are.
The First Amendment means police will have to endure some amount of observation and public, verbal challenge. Likewise, they must endure the critical, documentary eye of a recording. However, they don’t have to endure the act of recording if it interferes with their ability to do their jobs. (City of Houston v. Hill, 482 U.S. 451(1987); Glik v. Cunniffe, supra.)
Uniformed officers may legitimately order citizens to cease recording if the recording is interfering with or obstructing their law enforcement duties. You might be obstructing an officer (and thereby committing a crime) if, for example, you are standing close to him while he is attempting to arrest someone and your recording is clearly provoking the arrestee or other bystanders to become hostile or violent. (Gericke v. Begin, 753 F. 3d 1 (1st Cir. 2014); Glik v. Cunniffe, supra.)
An audio recording of an officer that you might have the right to make in one state might run afoul of another state’s laws. Wiretapping, electronic surveillance, and eavesdropping laws might prohibit you from recording surreptitiously, without the officer’s knowledge or consent. Such laws are meant to protect the privacy interests of citizens—and sometimes even police performing their official duties—in their words that they reasonably believe are and will remain private.
In some jurisdictions with such laws, courts have found that police have a reasonable expectation that the oral statements they make to citizens “privately” are confidential. Where this is the case, the officer’s right to privacy trumps the citizen’s First Amendment right to make a surreptitious recording of the officer. This is the state of the law even if a citizen is recording his own arrest or the recording may prove useful as evidence of police misconduct. (Com. v. Hyde, 434 Mass. 594 (2001).)
If you record an officer, these laws may make it critical that you use your recording device in an open and obvious way. If you don’t, you may be subject to arrest and prosecution.
For more detail on the law regarding secret recordings of police officers, including what “privately” means in this context, see Is it legal to secretly audio record the police?
The right to record doesn’t give you a right to break other laws while recording. Among other offenses, your recording could result in an allegation that you have committed disorderly conduct, harassment, stalking, or trespass. Whether you can be prosecuted for such crimes will depend on the facts of each case.
Where there’s no evidence that the arrest of a citizen is motivated by, in retaliation for, or meant to suppress the citizen’s recording, the arrest may be valid. Recording an officer during an arrest for stalking, for example, might be part of the stalking offense. In that situation, the general freedom to record isn’t a defense to stalking. If the officer has probable cause to believe you are stalking her and isn’t motivated to make the arrest because you are recording her, the arrest may well be lawful.
But such criminal allegations are unlikely to stick where the courts see them as attempts by officers to retaliate against and suppress the exercise of the First Amendment right to free speech or political activism.
Some jurisdictions may have specific laws, regulations, or state constitutional provisions related to recording officers. Some states may be more protective of the right to record officers, while others may be less so.
If you plan to record officers, whether to report on the actions of your local police, in the course of filming a documentary, or for any other reason, you may want to consult an attorney. If you’ve been arrested or prosecuted as a result of an interaction with the police, make sure to speak with a lawyer. A knowledgeable lawyer will be able to explain your jurisdiction’s laws, give you advice, and protect your rights.