Let’s face it, recording police has been a hot topic for many years.
—See Rodney King, George Floyd, Eric Garner, etc.
When recording police, you’re going to need to know your rights. In fact, you need to know your rights so well that you can’t be intimidated into giving them up with the threat of arrest and jail.
Let’s brush up on some constitutional law before you head out on your first First Amendment Audit and start recording police.
Why are you recording police?
First off, not all police violate citizens’ rights. In fact, I know many police officers who are big First Amendment advocates and encourage citizens to record their interactions. The officers who do violate citizens’ rights may not even do it intentionally or with malice. However, the fact is that constitutional rights are violated on a daily basis.
When someone alleges that an officer has violated their rights, unfortunately it usually comes down to the word of the citizen against the word of the officer.
The easiest way to ensure that someone doesn’t twist the events is through the use of a video camera. Sure, police may have their own bodycams and dashcams, but you have NO idea how difficult it can be to obtain that footage when the Department wants to keep it hidden.
Isn’t Recording Police Illegal?
Short answer; NO! Regardless of what an officer tells you, recording police is not illegal while they are in public and performing their public duties.
The U.S. Supreme Court had the opportunity in 2021 to affirm that this activity is protected by the First Amendment throughout the country, but it failed to do so. Instead, we’re left with a patchwork of lower Federal Circuit Court decisions and State laws and cases.
Most clearly though, the Federal 5th Circuit Court of Appeals held, “…the principles underlying the First Amendment support the particular right to film the police.” And “Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy.”
—See Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017)
Therefore, recording police is an absolutely protected, and clearly established, right in at least Texas, Louisiana, and Mississippi.
Also, the Department of Justice has issued guidance on police policies where the DOJ unequivocally declared that “individuals have a First Amendment right to record police officers.”
–See Department of Justice Guidance Letter
What this means to you is that it is a violation of your First Amendment Right if you are prevented from recording police while they are performing their official duties. Because you have the freedom of speech, you have to be able to collect information about what you want to speak on.
What About Interference with Police?
The catch-all last resort of officers who don’t want you recording police, is to assert that you are “interfering” with their investigation and/or their official duties.
Now, this is where a little common sense comes in handy. If you are recording police who are arresting a fellow citizen, then you should do so from a safe distance (across the street) and do not attempt to get an up-close video of the incident. Basically, you don’t want to inject yourself into the scenario; you want to be a silent witness.
In a recent case, Mr. Antonio Buehler was arrested in Austin, Texas for interference. Mr. Buehler followed officers and was arrested after not moving more than an “arm’s length” away from the officers when instructed. Additionally, Mr. Buehler was warned that he was obstructing the officer’s view and the performance of their duties.
—See Buehler v. Dear, 27 F.4th 969, 994 (5th Cir. 2022)
We’ve already discussed Police Interference, so you know that it is an offense to interrupt, disrupt, impede, or interfere with an official performing their official duty. However, you also know that it is a defense to prosecution if the interference “consisted of speech only.”
Recording police is in fact a form of speech. Just don’t do what Mr. Buehler did and you shouldn’t become part of the story.
When Should I be Recording Police?
Unfortunately, it isn’t possible to know when/where an infringement of someone’s constitutional rights will take place. When it happens, it usually happens quickly and without warning.
If a video begins in the middle of a police interaction, it can be taken out of context because the beginning of the interaction may provide more insight as to why it has escalated.
The safest bet is to record any/all police interactions from the beginning, especially ones that you are involved in, so that there is an accurate record for later review. Everyone prays that the video will be uneventful and after review, you can delete it.
Basically, it is better to record and not need it, than not record, and let your life and freedom hang in the balance because you don’t have it.
Won’t the Police Just Delete any Bad Videos?
You mean, will the police destroy evidence? Well, that is a possibility, and certainly wouldn’t be the first time that has happened:
- Ars Technica, Journalist recovers video of his arrest after police deleted it
- New York Daily News, Police sued over deleted videos of confrontation
- Fox29 Philadelphia, Philly cop accused of deleting arrest video from man’s phone
However, without a warrant, or probable cause, the police do not have the authority to seize and search your phone or view your pictures or videos. This protection is afforded by the 4th Amendment.
The 14th Amendment prevents the police from seizing and destroying any pictures or video found on your phone. Not to mention the fact that destroying evidence of their misconduct may also be a criminal act that the officer can be prosecuted for.
One alternative to prevent an officer from deleting anything is to set up your phone to automatically upload your videos to Dropbox or YouTube. You might also consider a livestream.
Once your video is out on the internet, it is nearly impossible to stop, and creates another record that can be traced to show that the officer tried to delete it.
If you’re interested in connecting with others who also record police in the interest of protecting the public. There are many out there, for example:
These groups provide guidance on safe police encounters, and do NOT support harassment or interference of police in their duties.
Recording Police is Important
In our legal system, the police are the ones who enforce the laws. They are the ones with the most discretion as to which laws are upheld today, and which ones are allowed to slide. (haven’t you received a warning for speeding instead of a ticket?)
Because the police hold so much power, it is upon the citizens to police the police. If you aren’t concerned with standing up and protecting the rights that our forefathers fought and died to preserve, then what exactly do you stand for?
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Civil Litigation Division
1101 Broadway, Lubbock, Texas, 79401-3303
Tel: (806) 702-4852 | Fax: (800) 985-9479