Dear Police, Recording You in Public is Not a Crime

The Short Version:

  1. Despite numerous court decisions upholding individuals' right to film the police in public, police officers nationwide continue to arrest citizens for doing so, often charging them with either violating their state's wiretapping law or obstruction of justice.
  2. However, in all states except Massachusetts and Illinois, state wiretapping laws cannot be used to arrest persons recording police officers in public because, like regular citizens, police officers have no reasonable expectation of privacy in the conversations they have while out in public.
  3. Individuals recording police in public should also be free from arrest for obstruction of justice so long as they do not interfere with the police officers' duties while recording by doing such things as crossing police boundaries or shouting obscenities at officers interviewing suspects.
  4. State legislatures need to step up to clarify the law because even though many lower federal courts and state courts have begun to recognize a right to record police officers in public, the Supreme Court has yet to recognize such a right.

I tend to generally not be a big fan of writing about technology-related legal issues that involve the military, the NSA, the FBI, or any other type of public law enforcement agency.

And I’m much less a fan of writing about these issues when they involve the misconduct of police officers because (a) I believe that these issues are sufficiently beaten to death by other writers more passionate about this topic, and more importantly, (b) I am of the minority of persons with no relation to police officers that does not become instantly polarized upon first hearing of police misconduct. Perhaps a product of my background in psychology, I simply know that a person’s environment and previous experiences shape that person’s perception of his or her future interactions with society and, while many find it easy to retrospectively condemn a police officer’s conduct in a single instance, I find it much more difficult to do so without first trying to put myself in their shoes to understand how their day-to-day experiences on the job may have led them to act a certain way.6

Yet, having said that, the foregoing still does not mean that I excuse reprehensible conduct taken by persons empowered to protect the public and, as the title of this post indicates, my position on writing about this issue has changed. And it has changed because of events taking place the past few weeks in Ferguson, Missouri in which bystanders and reporters were unlawfully arrested for lawfully recording a ridiculously militarized police force abuse its powers. These events have made it abundantly clear that those donning the uniforms of police departments nationwide continue to willfully ignore numerous court decisions, countless articles, and even DOJ guidance letters, which all say the same thing: the mere recording of police officers performing their duties in public is not a crime.


Then what are people recording police being arrested for?

Persons being arrested for recording police are most often charged with either one of two different crimes.

The first crime people recording encounters with police are being arrested for is violating their state’s wiretapping statute. Although the vast majority of states have enacted wiretapping statutes that police cannot twist to arrest persons recording them, 12 states7 have enacted “all-party consent” wiretapping statutes, which make it a felony to record the audio of a conversation without the consent of all persons—police officers included—involved in that conversation. Importantly, however, ten of these twelve states8 have included a provision in their all-party consent wiretapping statute that states the statute can only be violated if the person who objects to having a conversation recorded has a reasonable expectation that the conversation would remain private. And although police officers have commonly tried to circumvent this requirement by arguing that they have a reasonable expectation of privacy in public conversations with a suspect or witness, courts faced with this argument have declined to accept what essentially amounts to an incongruent assertion that police possess a reasonable expectation of privacy when out in public, while all other citizens do not. Thus, this means that in all but 2 Draconian U.S. states (Massachusetts & Illinois), police must rely on the second crime commonly used to arrest people recording them: obstruction of justice.9

A catchall provision that makes it a misdemeanor for a person to interfere with law enforcements’ performance of their duties, a person who is recording police officers may be arrested for obstruction of justice if the act or manner of that recording somehow hinders the officers from doing their job. And unlike wiretapping laws, the contours of what constitutes obstruction of justice is not clearly defined as whether recording police officers interferes with the performance of their duties depends on the subjective determination of what can often turn out to be a particularly camera shy police officer. Yet, despite the fair amount of discretion police officers are rightfully accorded in controlling a crime scene, there are certain bright lines that can be identified to guide persons recording officers from being arrested for this crime, and so long as you are recording from a place you have a legal right to be (e.g., not crossing police boundaries or injecting yourself into a crime scene investigation) and in a manner that is not flagrantly disruptive (e.g., not narrating your recording with obscenity-filled threats or warnings to police), you should be perfectly within your right to record the activities of police officers without obstructing the performance of their duties.

But what if the police confiscate my phone?

Regardless of whether you are being arrested for recording police, another common, even more frequent event that persons recording police experience is the confiscation of their recording devices, which commonly turn out to be cellphones. However, such confiscations constitute a warrantless seizure and warrantless seizures are only permitted if an officer has probable cause to believe that the property seized “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” And even in this rare circumstance, the Supreme Court’s recent decision in Riley v. California clearly and unambiguously affirmed that police also need a warrant to search your cellphone. Thus, in short, if you’re recording police and not being arrested, your phone cannot be confiscated by police unless it is evidence of a crime, and even if it does contain evidence or you are being arrested, your phone cannot be searched unless police obtain a warrant that a magistrate judge approves on the basis of probable cause that the phone does have this evidence.

And doesn’t the First Amendment give me the right to record, anyways?

Something I’m sure many of you have been wondering while reading this, the answer to this question is sadly far more up to debate than it should be thanks to the Supreme Court’s reluctance to address this matter head on. Seth Kreimer, a law professor at the University of Pennsylvania, has written an influential paper arguing that police officers’ use of wiretapping and obstruction of justice laws to arrest persons recording them violates these persons’ First Amendment right to report on newsworthy events they witness in public. But First Amendment guru Eugene Volokh believes that the Supreme Court is hesitant to recognize such a right because “it’s hard to see how we could have a news-gathering right as to public conversations that wouldn’t also apply to conversations that one party expects to remain private.”

However, even if the Supreme Court is reluctant to recognize a constitutional right to record the public activities of police officers, lower courts have fortunately proven to be more wiling to recognize such a right. Currently, four federal appeals courts10 have recognized that the First Amendment confers some level of protection on persons who record the police in public. Authoring the 11th Circuit’s decision in Smith v. City of Cumming, Judge Barkett wrote that persons have a “First Amendment right, subject to reasonable time, manner, and place restrictions, to photograph or videotape police conduct” because “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” And state courts are also following the federal courts’ lead in recognizing a right to film police officers carrying out their duties, including one sitting in the state notorious for police officers’ use of wiretapping laws to arrest persons recording them, Illinois.

Thus, this means that, even if you are arrested for recording police officers, you cannot be convicted of a crime for recording police officers because, so long as your filming of the police occurs in a place where you have a lawful right to be and does not directly interfere with the performance of their duties, the First Amendment protects your act of videotaping police activities.

Summary

So, the short answer to whether you are permitted to record police officers’ activities out in the open public is almost always yes:  if you are recording in a public place where there is no reasonable expectation of privacy and your recording is not interfering with the lawful execution of any legal duty being performed by the officer, you should not be arrested for recording police activities.

However, “should not be arrested” and “will not be arrested” are not the same thing and, until the Supreme Court and state legislatures get involved, the right to film the public activities of police officers will continue to be trampled by people like Beaverton, Oregon Police Chief Geoff Spalding who, while being interviewed by a local newspaper about Beaverton’s 2011 settlement with a man suing the city for being wrongfully arrested for recording police officers, still told reporters that taping police without their consent is a “technical violation” of Oregon law.

Oh, and I’d be remiss to end this post without noting that, aside from the events in Ferguson, this post was also largely inspired by the feelings engendered from watching the following video of Hawthorne, CA police officers arresting a person recording them.  To those who dare to watch it, be warned that the video contains footage of the arrestee’s dog being shot when coming to the aid of his owner.



  1. Off-topic tangent, I recently learned that this practice is called intellectual empathy.

  2. California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington

  3. Massachusetts and Illinois being the exceptions

  4. Note that this crime may also be called interfering with an officer, obstruction of government administration, interfering with a peace officer, or some other similar variation.

  5. ACLU v. Alvarez, 679 F.3d 583, 599-560 (7th Cir. 2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011) (holding there is an “unambiguous[]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”)

  6. Off-topic tangent, I recently learned that this practice is called intellectual empathy.

  7. California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington

  8. Massachusetts and Illinois being the exceptions

  9. Note that this crime may also be called interfering with an officer, obstruction of government administration, interfering with a peace officer, or some other similar variation.

  10. ACLU v. Alvarez, 679 F.3d 583, 599-560 (7th Cir. 2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011) (holding there is an “unambiguous[]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”)

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

1 Comment Leave a reply

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