In recent years, concern over police brutality and other forms of misconduct has led many citizens to record interactions with law enforcement. This can be useful evidence in any ensuing investigation of the officer’s conduct, but sometimes recording an officer can be a crime. The general rule is that the First Amendment protects a citizen’s right to record an officer while they are carrying out their duties in a public setting. Recording can take the forms of videos, photographs, or audio recordings. However, problems may arise if recording interferes with the officer’s duties or is conducted secretly.
The basis of the right to record a police officer performing their duties is that each citizen has a right to discuss political matters and the performance of government officials. Citizens also have a right to access information regarding these topics. The First Amendment applies to ordinary people to the same extent as it does to professional members of the media. As with other First Amendment rights, the time, manner, and location of the recording have an impact on how far the right extends.
The First Amendment
Generally, the First Amendment protects the right to record a police officer in public so long as it does not interfere with the officer’s duties and is not done secretly.
Interference with Officers
Police officers can expect to face some scrutiny and challenges when conducting their duties. They should be comfortable with their activities being recorded, but only if it does not prevent them from properly doing their job. Sometimes recording an officer can be considered an obstruction of justice if it hinders them in making an arrest or investigating a crime. For example, the visible presence of someone recording an interaction may encourage a person talking with the police to become more confrontational or resist an arrest. An officer may be within their rights to order the person to stop recording in these situations.
When Recording is Criminal
Since laws vary between states, the best way to ensure that a police recording is likely legal is to make sure that the device is visible and the officer is aware.
There are some situations, especially in certain states, in which recording an officer might break the law even if it does not interfere with the officer’s duties. For example, some states prohibit people from recording someone else secretly without their knowledge or consent. These laws may apply only to recording private citizens, but sometimes they apply to recording police officers as well. A court may find that an officer has a reasonable expectation of privacy in their conversation with a citizen. This would mean that the right to privacy prevails over the First Amendment right of the person recording. As a result, you may want to make sure that your recording device is visible.
Other criminal laws that might be implicated include laws against harassment, stalking, and trespass. Unless the officer makes an arrest in an effort to stop recording, or in retaliation for recording, the arrest probably is valid. Recording your arrest for stalking, for example, might add support to the stalking charge. (You cannot defeat a stalking charge on the basis of your First Amendment freedom to record.) However, courts will review the situation carefully to make sure that the officer was not abusing their authority in arresting someone who was recording them.
If you are planning in advance to film police officers or other law enforcement officials, you should consult an attorney to make sure that you are not violating any laws in your state. The laws governing recording vary widely.