I admit, this may be a quite controversial blog, but those who know me know that I don’t shy away from controversy.
Do you believe that police regularly violate the constitutional rights of citizens? Not all police violate citizens rights, and those that do 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.
Isn’t Filming Police Illegal?
Short answer; NO! Regardless of what an officer tells you, it is not illegal to film police who are in public and performing their public duties.
Illinois recently had laws in place that made filming police punishable as eavesdropping. However, an appeals court held those laws to be a violation of the Constitution, and the U.S. Supreme Court declined to hear the appeal, which upheld the appellate ruling.
—See Chicago Tribune, Supreme Court rejects plea to ban taping of police in Illinois
What this means to you is that it is a violation of your 1st Amendment Right if you are not allowed to film the 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 that don’t want to be filmed, 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 a police officer 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.
We’ve already discussed Police Interference in a previous blog, 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.” Although no Texas Court has ruled on it yet, I would argue that simply operating a video camera is protected as speech because it is protected by the 1st Amendment.
Why Would I Want to Film the 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.
Also, 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
Yahoo! News, Police sued over deleted videos of confrontation
Photography Is Not a Crime, Georgia Cop Snatches Phone, Deletes Video
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. 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.
Check out www.CopBlock.org, www.PhotographyIsNotaCrime.com, and www.FlexYourRights.org. PINAC has also put out a list of 10 Rules for Recording Cops.
Why Is This Important?
In our legal system, the police are the ones that 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. The citizens are tasked with watching the watchers. 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 – Criminal Defense Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479