When Can a Police Encounter Be Recorded?

Cop CarThe availability of video recording technology is revolutionizing police encounters with the public. In response to evidence that false confessions have been prompted by bullying interrogation techniques, some states now require the police to make a video recording of every interrogation, at least if the suspect is in custody. In response to concerns that the police behave unlawfully or rudely in their interactions with the public, it is increasingly common for police departments to require officers to record encounters on a squad car dash camera or on a body camera that is attached to the officer’s uniform.

Dash cameras are an affordable accessory that many people have added to their own vehicles. Most people carry a cellphone, and most modern cellphones are capable of making a video recording. When the police stop a vehicle, the owner may decide to use a dash camera or a cellphone to record the encounter. Some people who record the police upload the recordings to social media websites or, if they are unhappy with the officer’s behavior, send them to the ACLU or the Cato Institute.

Police officers are not always happy to have their on-duty behavior recorded. Is it illegal to record a police officer who orders someone not to make a recording? The law is evolving, but in most places and under most circumstances, recording an encounter with a police officer is legal.

In fact, courts have generally recognized that gathering information about the conduct of public officials in a public place is protected by the First Amendment. Courts have held that filming the police in a public place serves the First Amendment interest of promoting an open discussion of how the government is conducting its business.

Jesse Bright’s Video Recording

The legality of recording police encounters recently arose when a police sergeant pulled over Jesse Bright as he was driving for Uber. Bright immediately activated his mobile phone and began to film the encounter.

Bright spends most of his time working as a criminal defense lawyer. He drives for Uber to make extra cash that will help him pay his law school loans. His training and experience taught him that making a recording of a police encounter avoids confusion later if the officer and a civilian disagree about what happened during the encounter.

The officer, Wilmington police Sgt. Kenneth Becker, told Bright not to record him. According to The Washington Post, the following exchange occurred:

“Hey, bud, turn that off, okay?” Becker said.

“No, I’ll keep recording, thank you,” Bright responded. “It’s my right.”

“Don’t record me,” the police sergeant said. “You got me?”

“Look,” Bright said, “you’re a police officer on duty. I can record you.”

“Be careful because there is a new law,” Becker said. “Turn it off or I’ll take you to jail.”

“For recording you?” the video shows Bright asking Becker. “What is the law?”

Although Becker told Bright that he was violated a “new state law,” Bright knew that Becker was lying to him. The officer then called Bright a jerk and searched his car in the apparent hope that he would find contraband that would give him an excuse to arrest Becker.

The officer stopped Becker because he claimed that Becker had driven the passenger to a drug house. Even if that were true, Uber drivers are not responsible for the destinations chosen by their passengers or for the conduct of their passengers after they arrive at the destination.

And regardless of whether Becker was suspected of violating a law, he had the right to record his encounter with the officer. Even Sgt. Becker’s superiors agree.

After Bright’s encounter with the police was publicized, the Wilmington Police Department released a statement acknowledging that recording “people that are in plain sight including the police is your legal right.” The statement invited citizens to record police encounters because “public videos help to protect the police as well as our citizens and provide critical information during police and citizen interaction.”

The Right to Record

When the Rodney King beating was captured on video in 1991, recordings of the police were still relatively rare. That has changed with the advent of cellphone recording apps and other portable recording devices.

In a number of recent cases, police shootings of unarmed suspects have been recorded by witnesses using their mobile phones, often to the consternation of the police department. Whether the police like it or not, those recordings are nearly always legal. As law professor Mark Graber told NPR, “You can film police on duty as long as you're not interfering with their activities.”

Every state prohibits obstructing the police or interfering in the performance of their duties, but it would be unusual for someone who records a police officer in a public place to interfere with or obstruct the officer. Displeasing an officer isn’t the same as obstructing an officer.

Some police departments have argued that recording an officer violates state laws that require the officer’s consent to be recorded. But even in states that require such consent, the law usually applies only when people have a reasonable expectation of privacy in their communications.

A police officer who has a public encounter with another person can’t reasonably expect the encounter to be private. And given that government and private surveillance cameras cover nearly all public areas in urban environments, city police are in no position to claim that their privacy rights are being violated by being filmed. If that were true, the police would be violating the privacy rights of countless individuals by recording them on traffic cameras and other surveillance devices.

A few state legislatures, eager to side the police, have enacted laws that prohibit individuals from recording officers. Those laws may well be unconstitutional. Most states clearly allow people to record the police when they are in a public place.

What to Do When You Want to Record the Police

The police have occasionally abused bystanders — by arresting them or worse — who film them in public places. Ironically, a U.S. Marshal was recorded as he grabbed and smashed a cellphone that had been used to record him.

The most important rule is not to obstruct the police as they perform their lawful duties. If an officer orders a driver to exit the car and perform field sobriety tests, the driver can’t continue pointing a cellphone at the officer during a test that requires the driver to keep her arms at her sides. On the other hand, the officer cannot order the driver to turn the recording off, so the driver can continue to do “hands-free” recording while submitting to the test.

Most experts suggest that the best way to defuse a situation is to remind the officer that recording their public behavior is a constitutional right. A senior policy analyst at the American Civil Liberties Union says, “Once you make it clear to the officer that you do know what your rights are and that you don’t intend to be intimidated, I think in the vast majority of situations, the officer will back down.”

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