Several people have asked me to post a state-by-state rundown of laws pertaining to citizens’ right to record on-duty police officers. There’s been a lot of bad reporting on this issue, which I think is the source of much of the confusion. (This PC World outline of the various legal issues involved is very good.)
It boils down to this: In every state but Illinois and Massachusetts, you are perfectly within your legal rights to record or photograph an on-duty police officer, so long as you don’t physically interfere with him. In Massachusetts, you’re free to record so long as you do so openly, though this month’s First Circuit ruling suggests that even the prohibition on secret recording in public spaces may soon be overturned. In Illinois, it’s still illegal to record on-duty cops without their permission. The law is currently being challenged, and was recently found to be unconstitutional by one state judge but that decision only applied to the case before him.
Here’s the catch: Even though it’s perfectly legal to record and photograph cops in all 48 other states plus the District of Columbia, the police can still arrest you for doing so. They can also still threaten you, then can still take away your camera, they can still destroy your photos or video, and they can still destroy your camera. All of these things are illegal. They aren’t supposed to do them. But they still do.
They still do because while recording cops is perfectly legal in every state but two, the courts (save for the recent First Circuit decision) have yet to make recording on-duty government officials a constitutionally-protected right. This means that cops can illegally arrest you under wiretapping laws, but until we get a few more of these cases into the federal courts, they probably aren’t going to be held liable. So far, I don’t know of any case where a police department, prosecutor, or other government agency has sanctioned a cop for illegally harassing or arresting a citizen who was attempting to record him.
Aside from wiretapping laws, police could also arrest you on vague charges of interfering with a police officer’s official duties, creating a public disturbance, refusal to obey a lawful order, or some other catch-all charge unrelated to wiretapping. Here, even if the courts do eventually establish a right to record, you’d have to show that the arrest was actually for recording in order to get into court.
The takeaway from all of this? In 48 of the 50 states, you can’t be convicted under and sentenced to jail for recording on-duty police officers, at least under wiretapping laws. And even in the two states where that’s still plausible, it’s unlikely. But until police officers start facing real consequences for disregarding the law, you can still be harassed, arrested, have your files or camera destroyed, and even spend a night or two in jail while you wait for the charges to be dropped.
And in any state, you could still conceivably be convicted of one of those catch-all offenses if a cop arrests you for recording him, claims you were interfering in some way, and the courts believe his version of events.
I see two ways to end the arrests and harassment. The first would be for the federal courts to establish a clear right to record on-duty public officials, and to suspend qualified immunity for the law enforcement officials who violate that right. The second would be for state legislatures, or even Congress, to establish the right to record with legislation, along with an enforcement mechanism allowing citizens to take action against cops and prosecutors who ignore the law.
(Note: This is a journalistic summary of the laws surrounding this issue. It isn’t legal advice.)