Can You Legally Record the Police?

alex atkins bookshelf cultureThe recent deaths of George Floyd and Rayshard Brooks at the hands of police officers shook the world from its complacency, sparking massive protests around the globe. Were it not for the videos that clearly recorded the murders, these crimes could have easily been covered up by the police. In fact, in an early police report, the arresting officers of the Minneapolis Police Department claimed that Floyd “physically resisted officers” — a claim that was not supported by the surveillance and bystander videos.

Crimes committed by police against citizens raises the critical question: can you legally record the police? The question is even more urgent at a time when journalists and the freedom of the press are under attack. In an article for The Intercept, journalist Trevor Timm writes: “We are witnessing a truly unprecedented attack on press freedom in the United States, with journalists are being systematically targeted while covering the nationwide protests over the killing of George Floyd by Minneapolis police. The scale of the attacks is so large, it can be hard to fathom. At the U.S. Press Freedom Tracker… we catalogued 150 press freedom violations in the United States in all of 2019. We are currently investigating 280 from just the last week… Police are responsible for the vast majority of assaults on journalists: over 80 percent.” In 2018, Reporters Without Borders, released the top five deadliest countries for journalists: Afghanistan, Syria, Mexico, India, and now — the United States. It certainly doesn’t help that we have a president that has repeatedly called the press “the enemy of the people.”

Technology has empowered every individual to be a journalist; that is to say, every person who carries a smart phone has the ability to record what he or she sees in real time and upload that video almost instantly to a social media platform for the entire world to witness. This is an incredible and powerful capability, and as we have seen, it has pushed important issues that often lingered in obscurity into the light: racism, segregation, oppression, injustice, police brutality and crimes — to name a few. Therefore, every person, who one day may become a bystander, a witness to a crime, should become familiar with their first amendment rights and understand how he or she can legally record the police. To that end, the First Amendment Watch at New York University — an online news and educational resource for journalists, educators, and students — released a helpful guide that informs Americans of how they can record police legally. It can be downloaded here. It is worth noting that knowing and citing just a few court cases can persuade an overzealous police officer, who in the heat of the moment and not thinking clearly, to back down from stopping you from recording, taking away your smart phone, or trying to confiscate it illegally.

The Citizen’s Guide to Recording the Police begins with this statement:

Sixty-one percent of the U.S. population lives in states where federal appeals courts have recognized a First Amendment right to record police officers performing their official duties in public. The U.S. Supreme Court has not ruled on the issue. As a result, legal protections are fully secure only in those jurisdictions where federal circuits have issued a ruling. However, given the resounding support so far for this First Amendment protection, it seems highly likely that the remaining federal appeal courts would reach the same conclusion if the issue appears on their docket.

Here are some key court decisions by the U.S. Supreme Court that protect first amendment rights:

Branzburg v. Hayes (1972) and First National Bank of Boston v. Bellotti (1978)
“[The First Amendment] goes beyond [the] protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw…. [The] liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photo composition methods

Riley v. California (2014)
The court ruled that the Fourth Amendment prohibits police from seizing an individual’s recording device or later searching through its contents. The only legal way for police to seize a smart phone is through an arrest; the only way to access its contents is to acquire a warrant.

Here are some key court decisions by the United Circuit Court of Appeals that protect first amendment rights:

Askins v. U.S. Department of Homeland Security (9th Cir. 2018): First Amendment protects the photographing of patrol officers at ports of entry.

Fields v. Philadelphia (8th Cir. 2017): “First Amendment protects the act of photographing, filming, or recording police conducting official duties in public.”

Akins v. Knight (8th Cir. 2017): Has been mistakenly identified in the press as ruling against citizens’ First Amendment rights to film police in public. Akins was primarily ruled on procedural grounds, seeking the judge’s recusal. It did not analyze the merits of the constitutional claims, therefore cannot be categorized as either a pro- or anti-recording police case.

Turner v. Driver  (5th Cir. 2017): “A First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.”

Gericke v. Begin (1st Cir. 2014): Under the First Amendment, “private individuals possess a constitutionally protected right to videotape police carrying out their duties.”

ACLU of Illinois v. Alvarez  (7th Cir. 2012): The Illinois’ eavesdropping statute did not apply to the recording of police activities in public.

Glik v. Cunniffe (1st Cir. 2011): There is “a constitutionally protected right to videotape police carrying out their duties in public” and that right was “fundamental.”

King v. Ambs  (6th Cir. 2008): Free speech rights are not protected when a bystander is interfering with an arrest by instructing a suspect not to cooperate with police.

Smith v. City of Cumming (11th Cir. 2000): Affirmed “a First Amendment right, subject to reasonable time, place, and manner restrictions, to photograph or videotape police conduct.”

Fordyce v. City of Seattle (9th Cir. 1995): “First Amendment right to film matters of public interest,” as when Jerry Fordyce filmed police activity during a public protest.

And of course, the document contains the obligatory legal disclaimer: “The case studies produced by First Amendment Watch are intended for educational purposes only and do not constitute legal advice. Please consult an attorney in your state if you need legal representation.”

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