From the New York Police Department to the Los Angeles Police Department, and everywhere in between, police protect and serve the public. They keep us safe at home, at school, and at work, and are always the first to respond to emergency situations. However, given the public scrutiny police forces around the country have received the past several years and the proliferation of personal digital recording devices, recording police activity has become increasingly common. It is therefore important to understand your rights when it comes to recording police activity.
Is It Legal to Record Police Activity in Public?
When it comes to photography alone, the short answer to this question is “yes.” According to the American Civil Liberties Union (ACLU), if you are in a public space, such as a park or a street, you are legally allowed to photograph anything that is in plain view while in that space, including the activity of police officers, as long as you do not interfere with their law enforcement operations. This is seen as a form of public government oversight, and is championed by free speech advocates and civil liberties unions alike.
While the same principles apply to videotaping, the ACLU notes that there is an important legal distinction between taking photographs and videotaping: the audio portion. While the visual record of a video, which can be seen simply as a series of photographs, should be fully protected, the audio that is captured during a video recording may be regulated under state wiretapping laws, which vary from state to state. Still, despite the lack of clarity about the audio portion of a video, the ACLU maintains that banning the taping of police officers carrying out their public duty is a First Amendment violation. Recent court cases are consistent with this position.
In New York City alone, dozens of complaints were filed in 2014 about police officer aggression toward civilian videotaping, according to an April 2015 NBC report and December 2015 article. One of those cases resulted in a lawsuit filed against the city, the NYPD, and the officers involved. That officer was formally charged and arrested in December 2015 for unlawful arrest, illegal search, and official misconduct.
In this case, the officer was searching the pockets of a NYC resident outside a nightclub. When a friend raised his cellphone to film the encounter, the police officer grabbed the friend’s arm, arrested him, and took him into custody, throwing his phone out of the police car on the way. The nightclub’s surveillance cameras captured this encounter.
The ability to record police activity in a public space is your right, and undue restriction of that right may not be tolerated.
While the final result of the case is yet to be determined as of this writing, the police officer’s arrest in itself is telling. The ability to record police activity in a public space is your right, and undue restriction of that right may not be tolerated.
How Should I Conduct Myself Toward the Police?
If you find yourself in a public space filming or wanting to film police activity taking place in plain sight, and you are not interfering with legitimate law enforcement operations, it’s important to know how to respond to an officer in the event you are told to stop recording.
According to the ACLU, always remain polite and never resist a police officer — verbally, physically, or both. Resisting arrest, whether the arrest is lawful or not, is in itself an unlawful act. If stopped by a police officer for filming, you should ask, “am I free to go?” Until you ask, you are voluntarily being stopped. If the officer says you are not free to go, this would indicate that you are being detained, which requires reasonable suspicion that you are about to or have committed a crime. Finally, if you are detained, ask what crime you are suspected of having committed, and politely remind the officer that it is your right to record police activity in plain sight and in a public space.
What Rights Do I Have Over My Recorded Video?
In most circumstances, police officers need a warrant to search through your phone or other recording device. Even if arrested, the police may not search through the digital contents of your phone, and this goes for photos and videos. In Riley v. California, a 2014 United States Supreme Court decision, the Court confirmed that the police may not generally search a person’s cellphone for digital information without a warrant during an arrest. While you should never resist arrest or otherwise physically restrict an officer from obtaining your digital device if asked, police officers do not have a general right to your device or the digital records within it, and you have the right to politely remind them of this.
What Does This All Mean?
The biggest and most important takeaway is the confidence that you have the right to record police officers as long as you are in a public space, the police officers are operating in plain sight, and you are not interfering with their duties or operations. If questioned, be courteous and always ask if you are free to go, but never resist arrest. Remember, you can always politely remind a police officer that you have the right to record them.
Ultimately, if you are confronted by a police officer for videotaping, and your device has been taken or tampered with, or you’ve been arrested for such action, be sure to contact an attorney to get tailored legal advice specific to your case.
Roman Zelichenko is a business consultant with intellectual property experience, and has drafted legal opinions and articles on the subject. Roman is based in New York City. Mark Levy is a movie maker and an intellectual property attorney based in Colorado.