Your Right To Record

Tuesday, September 20th, 2011

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.)

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37 Responses to “Your Right To Record”

  1. #1 |  Rob Lyman | 

    I’d add one thing. Many recordings show the videographer getting really close to the cops. That is going to be treated as “interfering,” because getting close to a cop making a physical arrest is going to be considered a threat. If you were to walk up without a camera in hand, you’d quite legitimately be told to leave, and the camera doesn’t give you some magic bubble that proves you have good intent or exempt you from the need to obey the order to stay back.

    It isn’t difficult at all to explain why you don’t want someone walking up behind you while you’re in a fight; everyone can understand the threat that poses. So keep your distance.

  2. #2 |  EH | 

    Many recordings show the videographer getting really close to the cops.

    I think you have that backwards.

  3. #3 |  Boyd Durkin | 

    It isn’t difficult at all to explain why you don’t want someone walking up behind you while you’re in a fight; everyone can understand the threat that poses.

    What EH said, and it is NOT often that there is a fight in the background while a cop busts a camera man. Most of the physical abuse by cops of citizens recording happens when there is no violence at all…except for the cops.

  4. #4 |  Rob Lyman | 

    You can argue with me, or you can listen to what I’m saying: if you get close to cops while recording, and then get busted for “interfering,” the explanation in court will be “Look, I was trying to get the cuffs on this guy who was resisting (as the video shows), when I heard footsteps right behind me. My partner tried to tell the guy to leave, but he just got closer. We were worried he would try a gun grab like [insert name of gun-grab victim with photogenic widow here], forcing me to let go of the guy we were trying to cuff and getting us into a life-threatening situation fighting two guys, so my partner stood up, let go of the first suspect, and went over to make sure that didn’t happen. The guy with the camera started yelling at him and shoved him. That’s why he was arrested. We don’t care if you record us, just keep your distance.”

    Now, you might think that’s a bunch of crap, but the jury will probably disagree with you. I have no use for anti-wiretapping laws as applied to recordings in public, whether of the cops or of anyone else, but it’s worthless to complain about trumped-up charges if you’re doing something with a camera that you wouldn’t or couldn’t do without a camera.

  5. #5 |  Greg | 

    Raldey, I’m having my own problem with recording in public that maybe you or a reader could help me out with.

    If you don’t live in Los Angeles, getting old court records from the LA Superior Court is a costly and timely (50 cents a page with a 6-8 month waiting period!) procedure. I need some for a book that I am working on, and I found a middle ground — get a friend with a high-quality digital camera to head to the Superior Court Records & Archives Center, ask for the microfilm of various cases, and take photos of the display on the machine.

    Saves me time, saves the employees time, saves me money, what’s not to like?

    Today I was told that digital cameras were “absolutely not” allowed. She couldn’t tell me where the rule came from, the Public Informations Officer for the Court told me that divisions of the court are free to make rules like that. The manager of the Archives center was given my number.

    As far as I can tell, LA Superior Court Local Civil Rules only bar photographing without permission in courthouses, which this archives center most certainly is not.

  6. #6 |  John Jenkins | 

    Radley, I think there is an issue you’re overlooking here regarding wiretapping laws. If a wiretapping law permits your recording with one party’s consent, that usually will mean that you can record your *own* interactions with the police. You may not be able to record someone else’s without violating the statute in question (NB: I am not talking about whether this is how it should be, I am talking about the statutes as written, particularly the Oklahoma statute with which I am most familiar).

  7. #7 |  Jim Collins | 

    I wired my car up with a video camera, for the odd DUI stop on my way home from work. I put stickers stating that “These Premisis are Protected by Video Surveilance 24 hours per day” on my front and back windows on both sides of my vehicle. That takes care of the wiretapping BS.

  8. #8 |  Greg | 

    And sorry for calling you Raldey.

  9. #9 |  2nd of 3 | 

    @ Greg http://www.hiddencameraglasses.com/

    If a clerk says something to you claim they are prescription and making you take them off is an ADA violation.

  10. #10 |  Bob N. | 

    It should be noted that in Illinois, the wiretapping law only makes it illegal for you to record AUDIO. You can record video. My brother is a cop in IL and he confirmed this. Of course, good luck convincing the cops you’re only recording video when they see you holding up your cell phone.

  11. #11 |  Yizmo Gizmo | 

    “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.”

    That’s the Black Magic here–the resulting photos or video most often refute the cops’ kooky fabrications.

  12. #12 |  Jesse | 

    I really doubt that even explicit court decisions and legislation outlining the right to record cops will affect their conduct much. After all, it’s established legal precedent that it’s illegal for cops to harass people for a myriad of different kinds of conduct, such as giving them the finger, or dissagreeing with them, swearing at them, etc…..but they still do, and they always will. All they have to do is arrest them for the fall-back catch-all charges and at the very least, they get to cuff and stuff the petulant citizen, drop them in a cage and cause them lots of time, money and inconvenience if not worse, with virtually no repercussions.

  13. #13 |  Ron | 

    #3: The essence of what Rob Lyinglawman is saying is the cameramen are ALWAYS wrong; and the infallible and inerrant saviors of the world otherwise known as police are always right.

  14. #14 |  Mario | 

    Ron @ #12

    I don’t think that’s what he’s saying at all. The thing is though that even if you follow his advice, cops may still harass you. Haven’t we all seen videos where cops have crossed the street to threaten someone with a camera?

  15. #15 |  Mario | 

    And in any state, you could still conceivably be convicted of one of those catch-all offenses [...]

    “Catch-all offenses”? Surely, Mr. Balko, you must have this country confused with the Soviet Union I remember being described to me in my social studies class, many years ago.

  16. #16 |  Rob Lyman | 

    Ron, the essence of my point is that your jury will not be composed of Agitator comments.

  17. #17 |  Ron | 

    #15 Mario:

    re “Haven’t we all seen videos where cops have crossed the street to threaten someone with a camera? ”

    Exactly my point. Anyone with a camera, anywhere within the line of sight, whether sdtationary or even retreating. are deemed by police as “interfering” “posing a threat”, blah-blah-blah. So it doesn’t matter if you are across the street. Or on your own porch. Or in your own apartment. If you are filimng the cops, you are interfering with their divine mandate and offending their pure-as-the-wind-driven-snow motives, and are subject to arrest.

    Rob the LyingLawman laid out for us the prism through which he sees ANYONE with a camera at any time.

  18. #18 |  DoubleU | 

    I was *sure* it was illegal in Florida. I tried to find out more info but was unsuccessful. (Carlos Miller of Miami didn’t list references)

  19. #19 |  Jim March | 

    There have been cops who have gotten into trouble for harassing videographers, but it’s rare and it takes a really extreme case – as in the guy with the camera beaten up and falsely charges, as happened in Las Vegas not too long ago. The cop in that case failed to adequately destroy the camera’s flash memory card.

    Even in that case no criminal charges have been filed. It appears likely the cop will lose his job over that one.

    Because charges are never filed against the cops (likely to avoid boosting the victim’s chances in the likely event of a civil suit) the cops think they have a “natural right” to assault the “coparazzi” (similar to “paparazzi”).

    The most promising solutions involve cameras that live-stream to remote servers. Smartphones with 4G data speeds and a remote-save app have a lot of promise in this regard. If a cop is about to grab the camera, toss it as gently as you can onto a roof or something where the stream-write delay will finish the current write of the cop assaulting you before the cop can trash the camera.

    The best possible setup involves a covert camera that can remote-stream plus an “overt cam” that can’t (and that you don’t care about). Let the crooked cop fixate on the obviouscam and get a great video of him destroying it on the covert-cam.

    This would be very interesting (legally speaking) in MA. Covert cams are illegal, but in this case with both a covert and overt cam going on, the covert cam won’t matter much until the overt cam is destroyed. And at that point is seems damned peculiar that a cop could gain an “expectation of privacy” via criminal misconduct such as assault, strongarm robbery and/or property vandalism.

    There’s a more extreme question that also arises. In some of the videos shown on, say, Carlos Miller’s site, the assaults against videographers occurs with either the cop’s hand on a gun (one of the Las Vegas PD incidents), or worse guns actually drawn and pointed (Miami Beach FL). In these cases it became legal to shoot them. Not necessarily SMART to shoot them mind you, but people were legitimately put in fear of losing their life or suffering great bodily injury via criminal assault.

    In almost ever state, resisting false arrest has been banned by statute. (Virginia of all places is an exception, where you can resist false arrest with “reasonable force”.) But in ALL states, you can resist robbery or assault – even if the assailant or robber is a cop.

    You’d better have the best possible remote recording gear available before going there…and again, it’s likely not smart at all. But with the number of these cases happening in places where gun carry is legal, somebody is going to go there eventually.

  20. #20 |  John Jenkins | 

    “But in ALL states, you can resist robbery or assault – even if the assailant or robber is a cop.”

    Unfortunately, this is manifestly untrue. You might have a cause of action for assault under color of authority at some point (which is unlikely to be successful), but if you resist police officers you’re just going to get charged with another crime, irrespective of whether they had any real reason to arrest you, and you will likely be the only one to pay a price (time being booked, bail, etc.) even if the charges against you are dropped. There is too much confusion of what the de jure rules are and what the de facto rules are.

  21. #21 |  Scott Lazarowitz | 

    I keep sounding like a broken record, but no one wants to hear common sense, it seems. The way to solve many of these issues is to de-monopolize community policing and security away from the government. There is no reason why the government must have a monopoly in those endeavors. In fact, giving only the government this monopoly is what has made these monopolists unaccountable. Monopolists do not have to answer to anybody.

    Open up local community policing and security to anyone who want to do it, allow for free and open competition amongst private firms, and allow for any voluntary groups who want to act as volunteer security and policing agents.

    In contrast to the government-monopoly way of doing things, in which the government goons may be above the law with total impunity, in the voluntary and/or competitive way of doing things no one is allowed to be above the law, and no one may have ANY “authority” over anyone else.

    Is that kind of alternative really that objectionable?

    (p.s: Getting rid of gun laws completely, and not interfering with the people’s right to possess and openly carry their desired means of self-defense, is what will cause the crime rates to drop dramatically, and there would not BE any need for police.)

  22. #22 |  Bergman | 

    If nobody broke the law, we wouldn’t need police.

    But what can you do, when an organized crime syndicate habitually breaks the law, and that syndicate happens to be wearing uniforms and badges?

  23. #23 |  supercat | 

    I wonder what would happen if a prosecutor decided to seek indictments against cops who commit robbery? If one person uses a thread of force to compel another to give up a camera (or other item), and the person who used the force could not have reasonably believed that his action was lawful, then that person is a robber. I see no reason why the actions of some cops caught on camera would not fit the legal definition of robbery. So what would happen if a prosecutor actually started seeking indictments? Obviously some cops would do everything possible to make life miserable for that prosecutor, but if he refused to back down, what would happen then?

  24. #24 |  supercat | 

    #19 | Jim March | “In almost ever state, resisting false arrest has been banned by statute. (Virginia of all places is an exception, where you can resist false arrest with “reasonable force”.) But in ALL states, you can resist robbery or assault – even if the assailant or robber is a cop.”

    There is a huge difference between a cop arresting someone because of an objectively reasonable belief that the person committed a crime, when the person–unbeknownst to the cop–happens to be innocent, versus a cop arresting someone without any reasonable and articulable belief that the person did anything illegal. The first is false arrest; the second is kidnapping.

  25. #25 |  Joe | 

    I know it is not “legal advice” but thanks for the dope on this issue.

    I mean it as information, not the other meanings.

  26. #26 |  twency | 

    Re this: “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.”

    It’s not a wiretapping case as such, but here’s a US District Court case where officers were found liable for compensatory and punitive damages for improperly arresting someone who videotaped them:

    Robinson v. Fetterman (PDF)
    http://www.paed.uscourts.gov/documents/opinions/05D0847P.pdf

  27. #27 |  DoubleU | 

    #21 Scott Lazarowitz — Unions.

  28. #28 |  Eight Track | 

    When the author says that you are perfectly within your legal rights to record a cop, I am assuming that means video. Is that right? In which states are you allowed to use audio?

  29. #29 |  Kevin Carson | 

    Of course as internet uplink capability becomes cheaper, regardless of what the law is the cop is going to have to consider the prospect of a far greater likelihood of embarrassment when the video footage of him approaching and talking tough and actually grabbing the camera appears on YouTube and is circulated around the community. The Police Commission may take care of its own, but Officer Friendly will still get his fifteen minutes of fame. Smile, Pig–you’re on Candid Camera.

  30. #30 |  CyniCAl | 

    Any doubt as to who is in charge?

    Thought not.

  31. #31 |  CyniCAl | 

    Scott, take that anarchist tripe and move along to an anarchist blog. No one here wants to read your ridiculously obvious common sense ideas that would solve the problems of the world in one fell swoop. I should know, because I have posted your ideas here ad nauseum and have borne the slings and arrows of our minarchist brethren. Consider yourself warned.

  32. #32 |  Jim March | 

    >>Unfortunately, this is manifestly untrue. You might have a cause of action for assault under color of authority at some point (which is unlikely to be successful), but if you resist police officers you’re just going to get charged with another crime, irrespective of whether they had any real reason to arrest you, and you will likely be the only one to pay a price (time being booked, bail, etc.) even if the charges against you are dropped. There is too much confusion of what the de jure rules are and what the de facto rules are.<<

    It all comes down first to "can you prove they committed assault?" (which is where live-streaming video comes in!) and "can you survive trying to defend yourself?". Assuming you can do both, you're going to be protected from charges – or at least a conviction because they might indeed still try.

    But then it comes down to a jury – and whether or not they're willing to give cops a new "civil right" to commit assault. If any jury was dumb enough to go along with that, they'd need to be informed that they will be causing, one day, an attack against them or their family or friends somewhere down the line, when cops inevitably use the new power they themselves gave them as jurors.

    And understand: I am *not* talking about a nullification defense here. The right to resist assault is well understood, and no law anywhere gives cops a right to commit assault, strongarm robbery (a form of assault), etc.

    NOTE: use of a gun to defense against strongarm robbery is wrong on your part!!! If you find yourself in this kind of spot, you'd best know the laws on self defense inside and out, backwards and forwards.

  33. #33 |  Matt C | 

    Another non-violent person killed by cops during a drug raid:

    http://www.newsday.com/news/cops-selden-man-killed-by-suffolk-police-1.3187193

  34. #34 |  pam | 

    Ha, the tape doesn’t lie, from a Mississippi court opinion yesterday:

    “In his original statement, 1 Officer Podlin stated that Buchanan never dropped the bat before he tased him. Upon watching a video of the incident, however, Officer Podlin saw that Buchanan actually did drop the bat before being tased; so Officer Podlin changed his testimony accordingly.”

  35. #35 |  pam | 

    (1) why would you believe anything this officer says after that (2) if you read the whole opinion you can see how the cops aggravated the whole situation after Buchanan put the bat down and then he got charged with aggravated assualt. Jeez, it’s like Alice in Wonderland. It appears the cops did the assaulting.

  36. #36 |  John C. Randolph | 

    , the courts (save for the recent First Circuit decision) have yet to make recording on-duty government officials a constitutionally-protected right.

    The courts don’t create our rights. We have the right to record our employees when they’re on the job, the question at hand is whether the courts will permit the cops to violate that right.

    -jcr

  37. #37 |  Eric H | 

    Your readers may find this to be of some use:

    http://www.ncsl.org/default.aspx?tabid=13492

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