Here's Exactly When You Can Record the Police

April 13th 2015

Alex Mierjeski

Videos depicting police officers using excessive force or violence can provide invaluable windows into what can otherwise be one-sided, after-the-fact accounts, swiss-cheesed with crucial gaps of evidence. By filling in those holes, by-stander videos illustrate the important role technology increasingly plays in the march toward police transparency and accountability reform.

"A lot of times, until these videos show up, the officer is going to walk," Darren Baptisete, who created the Cop Watch app, which starts recording when the user taps the icon, then automatically uploads the video to YouTube when the clip is ended, told the New York Times. Other similar activist-apps exist, such as "Stop and Frisk Watch," or "I'm Getting Arrested," but the proliferation of amateur police recordings has also highlighted questions about a citizen's right to record police interactions. 

It's not uncommon in videos of high-tension police situations, such as rowdy protests or heated interactions, to hear an officer tell a bystander to stop recording. But as some experts point out, the officer is most likely always in the wrong when telling someone not to record them. 

"If you are in a public place, you have the right record anything you see," Mickey Osterreicher, general counsel of the National Press Photographers Association, told the Times. "That is the First Amendment." 

According to the American Civil Liberties Union (ACLU), the right to photograph police has a broad reach, and in many cases is unassailable since many interactions occur within the public space. "That includes pictures of federal buildings, transportation facilities, and police," the organization points out, adding that photography is a powerful form of public oversight of government. Moreover, it's a right that has been repeatedly and consistently upheld by the high courts. As Reason's Jacob Sullum points out, its constitutionality has been cemented in the 1st, 7th, 9th, and 11th circuit courts, not to mention in explicit listings detailing the legal framework by multiple photographycivil liberties, and legal advocacy groups

It's worth noting, however, that there are some exceptions. Private property owners, for example, hold the power to set the rules for what you can photograph, and police can order citizens not to interfere with "legitimate law enforcement operations," as the ACLU points out. It's also important to know that some states have tried to use wiretapping laws to regulate citizen documentation, but in such cases there is an important distinction between visual records, which are protected, and audio records, which could be stretched to be in violation of "bugging" laws. Other justifications frequently used to detain or arrest people recording police include loose interpretation of reasonable suspicion laws, obstruction, and, somehow, resisting arrest. 

Organizations like the ACLU highlight that it is illegal for officers to confiscate or demand to look at citizens' photographs without a warrant and also to delete photos or videos under any circumstances, violations which have in the past led to felony charges against officers for tampering with evidence, obstruction, and theft.

State officials, too, recognize the importance of preserving and protecting this right. Lawmakers in California recently approved legislation that would clarify certain codes used to halt citizens from recording police by drawing a distinction between obstructing police and simply recording them. It also would clarify that recording is not grounds for reasonable suspicion, barring cops from detaining those behind the camera. 

"Our Constitution guarantees us all the fundamental right to freedom of speech," California state Sen. Ricardo Lara (D) said in a statement. "Recent events throughout the country and here in California have raised questions about when an individual can – and can't – record. [This bill] will help erase ambiguity, enhance transparency and ensure that freedom of speech is protected for both civilians and police officers."