These days, if there’s been an incident of police brutality, there’s a good chance it’s on tape. Or in the cloud. Whatever the terminology, the point is that people regularly use their smartphones to film police officers. The question for some is whether this kind of recording is legal. If an officer arrests someone and notices you holding your phone horizontally with two hands and pointing it in his direction, should you be concerned?
While you might not necessarily curry favor with an officer in this position, the law is simple: As long as you don’t interfere with them, it’s typically legal to openly record the police carrying out their duties in public.
(For much more on the right to record officers, see our section devoted to Recording the Police.)
But officers don’t always act as if it’s legal to film them. To that point, in 2014 the New York Police Department circulated a memo to its officers reminding them that members of the public are entitled to record police behavior. The memo also said that “[i]ntentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.” (Caitlin Nolan, Thomas Tracy, “NYPD cops receive memo reminding them they can be filmed while on duty,” Daily News, August 10, 2014.)
The NYPD is right: Time and time again, courts have held that the First Amendment protects the act of filming or audio recording officers performing their responsibilities in public. Certain facts can, however, create wrinkles. For instance, the Massachusetts Supreme Court once held that a state statute prohibiting the secret recording of oral communications applied to a defendant who surreptitiously tape-recorded police officers during a traffic stop. (Com. v. Hyde, 434 Mass. 594 (2001).)