You see a police officer talking to a guy on the street, and things are getting heated. You're concerned that the situation might get out of hand, and you've seen how helpful a bystander's video can be in cases involving police brutality, excessive force, and other misconduct.
You pull out your phone and start recording. Can the police demand that you stop recording or order you to leave the scene? Can they take your phone or charge you with something?
This article will cover:
Most courts agree that the First Amendment gives you the right to record—with pictures, video, and audio—police officers who are on duty in public. Although the First Amendment doesn't say we have a right to record the police, it does give us the rights of free speech and a free press. It also provides the right to gather information about our government.
Smartphones have made it easy for most people to instantly start filming anything or anyone, including the police. As more news is gathered and shared this way, many courts have found that freedom of the press applies to citizen journalists just as it does to formal members of the press. Courts have also found that recording police activity helps the public monitor the police, address officer misconduct, and protect civil liberties.
(Irizarry v. Yehia, 8 F.4th 1282 (10th Cir. 2022); Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).)
As with most constitutional rights, the right to record officers has limits. Generally, recording isn't allowed if it creates a safety issue, interferes with an officer's duties, or violates privacy rights.
The police can legitimately order citizens to stop recording if it interferes with an officer's law enforcement duties or is causing a safety issue.
For example, someone who's recording might be standing too close while an officer is arresting someone. In that circumstance, the person could be in the way while the officer is trying to get the arrestee under physical control. Or sometimes, the act of recording might embolden the arrestee or other bystanders to become hostile or violent.
In these kinds of scenarios, an officer normally has the right to order you to move back because you're impeding arrest or are too close to a volatile situation. They might even be able to demand that you stop recording in unusual situations where the recording is causing things to heat up. Also, officers might legitimately order all bystanders to step far back from the scene for other safety reasons or to preserve the integrity of a crime scene or investigation.
(ACLU of Ill. v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011).)
Most states have laws that ban wiretapping, electronic surveillance, or eavesdropping. These laws prohibit people from listening in on private conversations (with some exceptions). In some states, these privacy laws might prohibit you from audio-recording the police—as well as arrestees and bystanders—without their knowledge. Violations could lead to criminal charges.
But many courts have ruled that privacy laws don't apply to police activity because officers have no reasonable expectation of privacy while on duty in public. Also, citizens don't normally make private statements in public within earshot of the police (or bystanders for that matter). At least one court has found that "surreptitious" (secret) recording might be the only way to document police activity when someone fears retaliation for openly recording.
Further, states like Hawaii and Illinois have exceptions in their privacy laws that allow people to surreptitiously record public police activity.
But the United States Supreme Court hasn't yet weighed in on the issue. So, it's important to know what the laws are in your state before you secretly audio-record police activity. If you're uncertain whether secret recording is allowed, the best way to avoid potential legal consequences is to record openly.
(Ford v. City of Boynton Beach (Fla. Ct. App. 2021) 323 So.3d 215; Project Veritas Action Fund v. Rollins (1st Cir. 2020) 982 F.3d 813; State v. Flora, 845 P.2d 1355 (Wash. Ct. App. 1992); Kelly v. Borough of Carlisle (3rd Cir. 2010) 622 F.3d 248; Haw. Rev. Stat. § 711-1111 (d) (2022) 720 Ill. Comp. Stat. 5/14-2(e) (2022).)
Although there's a right to record the police when they're in public, the same isn't true when you're on private property. If the property owner or occupant asks you not to record, you probably have no right to continue recording.
Secretly recording the police in a private place (like in a home) can violate privacy laws in states that say all parties must agree to be recorded.
Also, if the police are in a place where they have a reasonable expectation of privacy (like a bathroom stall in a public restroom), taking photos or filming them is illegal.
The right to record doesn't give you a right to break the law while recording. Here are some examples of criminal charges that could result from recording the police:
Whether someone can actually be prosecuted and convicted for such crimes will depend on the facts of each case. If it doesn't look like the officer arrested someone just to retaliate against them for recording, the arrest might be valid, and a conviction possible. But criminal allegations are unlikely to stick when courts see them as attempts to retaliate against someone's exercise of their First Amendment rights.
The answer is unclear. As of January 2023, no case precedent has said that there's a right to record one's own arrest or detention. A small number of lower courts have suggested that there isn't. (See, for example, Higginbotham v. City of New York, 105 F.Supp.3d 369, 381 (S.D.N.Y. 2015); Pierner-Lytge v. Hobbs, No. 20-CV-567-JPS (E.D. Wis. 2022).)
And in many circumstances, trying to record your own arrest could be illegal, because it would interfere with the officer's duties. For example, an officer might be trying to handcuff someone who won't let go of their recording device.
Or during a detention, an officer might lawfully tell someone to keep their hands on the steering wheel or above their head. If the person reaches for their phone instead, the officer might misinterpret that action as an attempt to access a weapon. Trying to record in that circumstance would interfere with the officer's need to know that the detained person is unarmed. More tragically, it might lead an officer on heightened alert to quickly respond by shooting the person.
Theoretically, a person might be able to record with a phone that's already recording before the police approach. If the phone is on a seat or the console, for example, the recording wouldn't likely interfere with the detention or arrest. That said, officers make a point of watching a vehicle from behind when they pull it over. Any sudden movements might be construed as a move for a weapon, which could dangerously escalate the situation. (And remember, if the police don't know the recorder's running, the person might violate wiretap laws in some states.)
The fact that recording the police is often legal doesn't guarantee that the police will tolerate it.
As recordings of the police have become more common, many officers have accepted it as part of the job. But some officers aren't on board. They might take someone's phone or unjustifiably order the person to stop recording or delete the video. Some officers might illegally arrest, detain, or even assault someone who's recording them.
If you're not interfering with an officer's duties and you're acting peacefully, you probably have the right to continue recording even if officers tell you to stop.
If an officer tells you to step back for safety or interference reasons, move to a safe place that's out of the officer's way. In most circumstances, you can continue recording from that position if you're not interfering with the arrest or other police activity that's taking place.
But keep in mind that you might not know the reason the officer is telling you not to record or to back off (or even to leave the area). They might know something you don't, such as that the suspect is potentially armed. In that case, the officer's commands could be justified, and your defiance of them unsafe and possibly illegal.
Also, be aware that an officer angered by the recording might look for other reasons to arrest you that could appear valid to a court. For example, some states allow officers to arrest (not merely ticket) someone for "jaywalking" and other pedestrian offenses. Officers in those states could arrest someone who's recording for standing in the street or not crossing in the crosswalk. In that situation, some courts have found the arrest lawful. (See, for example, Nigro v. City of New York, 19-CV-2369 (S.D.N.Y. 2020).)
Normally, if you're lawfully recording and an officer demands your phone, you're not legally required to give it to them. Unless the police have a search warrant or you're under arrest, the police probably have no grounds for taking your phone. And when you're under arrest, they can normally only take it for safekeeping as part of the booking procedure unless they have a warrant to search it.
You can also refuse to comply with orders that you delete what you recorded or photographed.
That said, you have to balance these rights against the reality that an angry officer might illegally arrest (or assault) you for recording them or refusing their demands to delete footage.
If the police interfere with your recording or retaliate against you for recording them, you might have grounds for a civil rights lawsuit under state or federal law.
The lawsuit might involve your First Amendment right to record and your Fourth Amendment right against an unlawful arrest or search. You might have other claims under state law.
The grounds for suing might be that an officer did any of the following because you were recording:
You might have other grounds based on something else the officer did that interfered with your right to record.
Over the years, lawsuits against officers for retaliating against people for recording have gotten mixed results. Cases often come down to whether the right to record was "clearly established" when the incident happened. Though not all courts have agreed on the answer, more and more are finding in favor of plaintiffs on that issue. But remember, the right to record has limits, so a lawsuit's likelihood of success will also depend on the facts of the case.
If you believe the police violated your right to record them or retaliated against you for recording, consider contacting a civil rights attorney. An attorney should be able to give you advice on whether you have a good case (which can depend on many factors). If you do, your attorney can make sure your lawsuit is filed on time and in the right court.
If you've been arrested or prosecuted due to an interaction with the police, make sure to speak with a criminal defense lawyer as soon as possible. An experienced criminal defense lawyer can advise you on how to proceed and represent you in court if it comes to that.
If you have two lawyers—a criminal defense lawyer and a civil rights lawyer—make sure they communicate with each other on your cases. What happens in one case can affect what happens in the other. (If you already have a criminal lawyer and are considering getting a civil rights attorney, make sure to talk that through with your current attorney.)
If you plan to record officers to report on the actions of your local police or for any other reason, you might want to consult a civil rights lawyer beforehand for advice about the laws in your area. You could also seek information from civil rights groups like the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF).