Like the rest of the world, we are horrified by the videos of George Floyd’s murder. Once again, police brutality was documented by brave bystanders exercising their First Amendment rights. Their videos forcefully tell a painful truth that has further fueled a movement to demand an end to racism and abuse of power by police officers.
Recordings of police officers, whether by witnesses to an incident with officers, individuals who are themselves interacting with officers, or by members of the press, are an invaluable tool in the fight for police accountability. Often, it’s the video alone that leads to disciplinary action, firing, or prosecution of an officer.
This blog post provides some practical tips to record the police legally and safely, and explains some of the legal nuances of recording the police.
What to Know When Recording the Police
- You have the right to record police officers exercising their official duties in public.
- Stay calm and courteous.
- Do not interfere with police officers. If you are a bystander, stand at a safe distance from the scene that you are recording.
- You may take photos or record video and/or audio.
- Police officers cannot order you to move because you are recording, but they may order you to move for public safety reasons even if you are recording.
- Police officers may not search your cell phone or other device without a warrant based on probable cause from a judge, even if you are under arrest. Thus, you may refuse a request from an officer to review or delete what you recorded. You also may refuse to unlock your phone or provide your passcode.
- Despite reasonably exercising your First Amendment rights, police may illegally retaliate against you in a number of ways including with arrest, destruction of your device, and bodily harm. We urge you to remain alert and mindful about this possibility.
Your First Amendment Right to Record Police Exercising Their Official Duties in Public
You have a First Amendment right to record the police. Federal courts and the Justice Department have recognized the right of individuals to record the police. Although the Supreme Court has not squarely ruled on the issue, there is a long line of First Amendment case law from the high court that supports the right to record the police. And federal appellate courts in the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right. EFF has advocated for this right in many amicus briefs.
Federal appellate courts typically frame the right to record the police as the right to record officers exercising their official duties in public. Thus, if the police officer is off-duty or is in a private space that you don’t also have a right to be in, your right to record the officer may be limited.
Special Considerations for Recording Audio
The right to record the police unequivocally includes the right to take pictures and record video. There is an added legal wrinkle when recording audio—whether with or without video. Some police officers have argued that recording audio without their consent violates wiretap laws. Courts have generally rejected this argument. The Seventh Circuit, for example, held that the Illinois wiretap statute violated the First Amendment as applied to audio recording on-duty police officers.
There are two kinds of wiretaps laws: those that require “all parties” to a conversation to consent to audio recording (12 states), and those that only require “one party” to consent (38 states, the District of Columbia, and the federal statute). Thus, if you’re in a one-party consent state, and you’re involved in an incident with the police (that is, you’re a party to the conversation) and you want to record audio of that interaction, you are the one party consenting to the recording and you don’t also need the officer’s consent. If you’re in an all-party consent state, and your cell phone or recording device is in plain view, your open audio recording puts the officer on notice and thus their consent might be implied.
Additionally, wiretap laws in both all-party consent states and one-party consent states typically only prohibit audio recording of private conversations—that is, when the parties to the conversation have a reasonable expectation of privacy. Police officers exercising their official duties in public do not have any reasonable expectation of privacy. Neither do civilians in public places who speak to police officers in a manner audible to passersby. Thus, if you’re a bystander and want to audio record an officer’s interaction with another person in a public space, regardless of whether you’re in a state with an all-party or one-party consent wiretap statute, you may audio record the encounter.
Finally, the Massachusetts wiretap statute is unique in that it prohibits the secret audio recording of conversations without regard to whether those conversations are private absent all-party consent. There is a case pending in the First Circuit that is challenging under the First Amendment the Massachusetts wiretap statute to the extent it prohibits secretly audio recording police officers when they are engaged in non-private activities—that is, performing their official duties in public. The plain view rule also applies in this state because, as the First Circuit has held, open recording is not surreptitious.
The ability to secretly record the police (whether with photos, video or audio) is critically important given that officers often retaliate against individuals who openly record them. A good example of this is a case that’s currently pending in the Tenth Circuit, in which a bystander used his tablet to record Denver police officers punching a suspect in the face as his head repeatedly bounced off the pavement, and tripping his pregnant girlfriend. The officers retaliated against the recorder by seizing his tablet without a warrant and deleting the video (which he was later able to retrieve).
Do Not Interfere With Police Officers
While the weight of legal authority provides that individuals have a First Amendment right to record the police, courts have also stated one important caveat: you may not interfere with officers doing their jobs.
The Seventh Circuit, for example, said, “Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.” The court further stated, “While an officer surely cannot issue a ‘move on’ order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law enforcement needs.”
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Independent recordings of police officers are critical for ensuring police accountability. We urge individuals to keep recording. We hope this blog post helps you to do so legally and safely.
"Anonymous Remailer (austria)" wrote in message
AHEM: A blast from the past (2004):
is 404'd now, but here's the
text. 'Jamal and Janequa Q. Public' better have their blood pressure meds
within reach. Most interesting site, this http://ponetwork.com/
. 'Cases of
police brutality, whether hyped up or not, should not be seen as God-awful
acts of hate crime or "above the law vigilantism". They should be revered.
See, when a person breaks the law, they lose their rights. They have no
rights. The only rights they deserve are those they receive to the fucking
head for resisting arrest. The second you sneak across that border, Pedro,
your ass is grass. The moment you don that red or blue do-rag to show you
are "down" with your set, your "colors" become a target for snipers. If you
resist arrest, you get beaten. If you threaten an officer, you die. See, we
don't need any more criminals, we have too many as is, so who cares if we
lose a few? Certainly not me.' HAHAHAHA!
Brutality Is Fun
October 22 marked the second anniversary of the "National Day of Protest to
Stop Police Brutality, Repression, and the Criminalization of a Generation."
Observers, who were asked to wear black to signify their contempt toward
what they believe to be a "nationwide epidemic" of racist violence, amassed
in less-than-impressive numbers throughout 20 cities in America, including
New York, Chicago, and Los Angeles. According to the promoters for the
"awareness" believe that police brutality "is an outrage that must be
stopped." They say the police are "out of hand" and are nothing short of
"above the law criminals" who infringe upon the civil rights of law abiding
citizens due to racist agendas. Abner Louima, the Haitian immigrant
lawbreaker and alleged brutality victim turned divine spokesmen for the
"Stop Brutality" cause said, "We are in a war for our lives. I want you to
keep on fighting until we win the war." The fine upstanding minority
communities are at war for their lives with the evil, racist police. This
belief is reinforced by the recent media exposure of several cases in which
police officers have been accused of using excessive force on law breakers.
In fact, they claim that over 500 people have been killed at the hands of
law enforcement officers since 1990.
Could this be true? Are police officers taking the law into their own hands,
infringing upon the civil rights of American citizens? Are our law enforcers
taking out "innocent minorities" because of a "racist" agenda? Is there a
problem with police brutality? Or are the recent events spotlighted in the
media just isolated cases that do not reflect upon all officers of the law?
The people have cried out. They are concerned. They need an answer.
So, I ask you is there a problem? Ask me and I'll tell you there is one. The
problem I see is that there isn't enough police brutality.
I'm sick and fucking tired of reading about "police brutality" in the news,
or hearing about it on the television or radio. Every ghetto bastard, every
hippie protester and every two-bit philanthropist from here to San Francisco
is up in arms over the whole debacle. On every channel, in every newspaper,
it's the same fucking thing: "The police are out of hand," "The police are
racist," etcetera, ad nauseum. Our law enforcement officers have become
persona non grata in the eyes of the Jamal and Janequa Q. Public, because of
recent reports and subsequent late breaking news stories. There has been an
overabundance of news coverage focusing on the recent seemingly endless
events surrounding police brutality and use of excessive force in the line
of duty. It seems like on any given night, you can turn on the television
and hear about a one-time criminal-turned-civil-rights-activist suing some
city in America over alleged brutality or "excessive" force used in his
arrest. The media whores and the greedy, blood-sucking attorneys close in,
elaborating on the events and convince the people of America that this
honest citizen has been "wronged" at the hands of racism, ignorance, and
intolerance. This in turn fuels protesters, inciting negative press and
images of the police community, stirring up dissension, prompting marches
and protest rallies for the "abused" victims of police brutality, or in some
cases sparking "justifiable" looting and rioting. The good guys quickly
become the bad guys and receive flak for the incident in question. In the
slums, blacks riot because one of their "brothers" who they didn't even know
was roughed up for committing a crime. On college campuses, hippies hopped
up on illegal drugs protest against the criminal actions of the police
department. Cries of "justice" and "criminals have rights, too" fill the air
in sonic dissonance. It's enough to make any law abiding citizen sick. Why
do we jump aboard bandwagons in the name of murderers, druggies, rapists,
and looters? It seems that everyone these days has rights that must be
defended at all costs, unless of course that somebody just so happens to be
a police officer.
People are outraged at the beating of Rodney King, the imprisonment of Mumia
Abu-Jamal, the shooting of Malik Jones and "Strawberry" Daniels, the
"senseless" abuse inflicted upon "helpless" immigrants, the torture of Texas
prison inmates, and of course, the beating and sodomy of Abner Louima. The
public has been alerted to these heinous injustices and will proceed to
condemn the police, even if they don't know the whole story.
Very seldom do you hear that the poor victimized Louima had a prior record,
was drunk and disorderly in public, was starting fights and even attempted
to beat up the arresting officers. You hardly ever hear that those
"defenseless" illegal immigrants were breaking the law the second they
crossed over into American soil. Rarely will you be reminded that
"Strawberry" Daniels was arrested for buying drugs while pregnant, and then
attempted to strangle the officer to death before she was shot. The media
doesn't bother telling you that Malik Jones tried to run Officer Flodquist
down at high speed before he was shot. Those unfortunate inmates were
dealing drugs in prison. Mumia Abu-Jamal killed a police officer in cold
blood. And Rodney King was fucked up on every drug known to man, led the
police on a high speed chase for many miles, and resisted arrest.
The media has blown the entire police brutality thing way out of proportion,
turning the tables on the enforcers of the law, and making the law breakers
into the victims.
The police are made into the criminals instead of those who commit the real
crimes. But in our society where crime is glorified daily, this is not
unusual. The media convinces us all that crime pays and the police are the
enemy. We hear it everyday. They are made out to be ignorant, testosterone
junkies, just out to kick ass. They are racists, bigots and redneck
crackers. People refer to cops as "pigs" and "thugs". Rappers write songs
about killing cops, and "shooting pigs", it's no wonder we have such
negative images of the police. People have no respect for the law anymore,
and they don't care who knows it.
Perhaps the public relations problem is that we just don't understand cops
or what they have to deal with on a daily basis. Police officers are forced
to deal with every form of scumbag from the wife beaters to the serial
rapists on a daily basis. They must deal with perpetrators and law breakers
so that honest, law-abiding citizens can rest safely at night. Those quick
to point the finger at police fail to identify with their brothers and
sisters of law enforcement. They believe the anti-police, media propaganda
and the bleeding-heart rants before trying to see things from the police
officer's point of view.
For instance, let's look at the Rodney King fiasco, shall we? Here was a
guy, Mr. King, with a prior criminal record who led the police on a high
speed car chase that spanned many, many miles. During said chase, I doubt
the officers were thinking, "I'm gonna kill this nigger when we catch him."
They were too busy thinking about their families and wondering if they were
going to live through the night. When the officers finally caught up with
Mr. King, they found that he was whacked out on drugs and was potentially
dangerous to the arresting officers. The situation had to be handled with
extreme caution. After all, he had been known for violent behavior and was
fucked up on God only knows what. The felon resists arrest, and threatens
the officers. They subdue him with the necessary force and he refuses to
comply with the arrest, resulting in more force being used against him. I
don't know about you, but if I whack a guy in the head with a billy club and
he's still trying to get up, I'm gonna freak out. There's no telling what he
could do to you, and he's so drugged up, he can't feel a damned thing
anyway. The man posed a threat to the police and they took him out, as well
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