Want to Record The Cops? Know Your Rights

There are some very disturbing videos circulating the Internet right now, depicting the deaths of unarmed civilians at the hands of trained, armed men. Many of these videos even show individuals being shot in the back, or as they try to flee.

These are videos of police officers in America killing unarmed black men like Oscar Grant and Eric Garner. And, as the most recent case shows, without these recordings, much of America might not have any idea exactly how much of a problem this is.

Citizen videos of law enforcement encounters are more valuable than ever. And for those who are wondering—it is legal to record the police.

The police don’t always seem aware of this. There have been incidents across the country of police telling people to stop filming, and sometimes seizing their camera or smartphone, or even arresting them, when they don’t comply.

In the most recent citizen-filmed incident to gain widespread media attention, on April 4, white police officer Michael Slager shot and killed 50-year-old black man Walter Scott in the back as he ran away in North Charleston, South Carolina. Bystander Feiden Santana filmed the encounter, which started with a traffic stop. After Santana’s video surfaced, the officer was arrested and charged with murder. Santana said that he is scared of what might happen to him. He also considered deleting the video, and doing nothing with it. And Santana is not the only person who may be intimidated by the prospect of filming the police, with good reason.

That’s why, in addition to EFF Attorney Sophia Cope's legal analysis highlighting some of the recent case law establishing the right to film police officers, we’re sharing some basic information cop watchers should know.

What Courts Have Said

Courts across the country have held that there is a First Amendment right to openly record the police. Courts have also held, however, that individuals cannot interfere with police operations, and that wiretapping statutes that prohibit secretly recording may apply to recording the police. But underlying these decisions is the understanding that recording the police is constitutionally protected.

Know Your Rights and Be Safe

While it has been established that individuals have the right to record the police, what happens on the street frequently does not match the law. Also, if you’re thinking about filming the police, it’s likely you’ll have more police encounters than you otherwise would.

The National Lawyers Guild (NLG) is a bar association that does police accountability work. The National Lawyers Guild Legal Observer program is focused on watching the police at protests. CopBlock and Cop Watch are loosely organized groups that have chapters across the country, and provide resources on filming the police everyday.

Here are the most essential things to keep in mind:

    Stay calm and courteous, even though the situation may be stressful. Remember—if you get arrested or get into an altercation with the police, you won’t be able to keep filming them!

    Be sure that you are not interfering with police operations, and stand at a safe distance from any encounter you film.

    Your right to record audio surreptitiously of police carrying out their duties in public may vary from state to state. You should check your state law to know the fullest extent of your rights, but the lowest risk way to record is to hold your device in plain view of the officers.

    Do not lie to police officers. If they ask whether you are recording, answer honestly.

    If the police start interacting with you, treat the encounter as you would any encounter with law enforcement—in fact, you may want to be extra careful, since as the repeated incidents of police seizing cameras and smartphones demonstrate, it may make you more of a target.

    If you are at a demonstration, police will often issue a dispersal order—in general, they will declare a protest an unlawful assembly and tell people to leave. Unless you are granted permission to stay, that order applies to you, too. If you do not comply, you should expect to be arrested.

    While it is not legal for an officer to order you to move because you are recording, they may still order you to move. If you do not comply you could be arrested. If you do want to comply, consider complying with the smallest movement possible, and verbally confirming that you are complying with their orders. For example, if you are standing five feet from an officer, and they say “You need to move back,” you might want to consider calmly saying “yes, officer, I am moving back” while taking a few steps back.