7 Rules for Recording Police
Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.
Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.
If you choose to record the police you can reduce the risk of terrible legal consequences and video loss by understanding your state’s laws and carefully adhering to the following rules.
Rule #1: Know the Law (Wherever You Are)
The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work.
Twelve states-California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington-require the consent of all parties for you to record a conversation.
However, all but 2 of these states-Massachusetts and Illinois-have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.
Rule #2 Don’t Secretly Record Police
In most states it’s almost always illegal to record a conversation in which you’re not a party and don’t have consent to record.
Fortunately, judges and juries are soundly rejecting these laws. Illinois, the state with the most notorious anti-recording laws in the land, expressly forbids you from recording on-duty police. That law has been declared that unconstitutional, ruling in favor of Chris Drew, a Chicago artist charged with felony eavesdropping for secretly recording his own arrest. Last August a jury acquitted Tiawanda Moore of secretly recording two Chicago Police Internal Affairs investigators who encouraged her to drop a sexual harassment complaint against another officer.
The lesson for you is this: If you want to limit your legal exposure and present a strong legal case, record police openly if possible. But if you videotape on-duty police from a distance, such an announcement might not be possible or appropriate unless police approach you.
Rule #3: Respond to “Shit Cops Say”
When it comes to police encounters, you don’t get to choose whom you’re dealing with. You might get Officer Friendly, or you might get Officer Psycho. You’ll likely get officers between these extremes. But when you “watch the watchmen,” you must be ready to think on your feet.
Part of your task will be to convince them that you’re not a threat while also standing your ground.
“What are you doing?”
Say: “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite.”
Saying this while remaining calm and cool will likely put police on their best behavior. They might follow up by asking, “Who do you work for?” You may, for example, tell them you’re an independent filmmaker or a citizen journalist with a popular website/blog/YouTube show. Whatever you say, don’t lie-but don’t let police trick you into thinking that the First Amendment only applies to mainstream media journalists. It doesn’t.
“Let me see your ID.”
In the United States there’s no law requiring you to carry a government ID. But in 24 states police may require you to identify yourself if they have reasonable suspicion that you’re involved in criminal activity.
One way to tell if they have reasonable suspicion is to determine if you’re free to go. You can do this by saying “Officer, are you detaining me, or am I free to go?”
If the officer says you’re free to go or you’re not being detained, it’s your choice whether to stay or go. But if you’re detained, you might say something like, “I’m not required to show you ID, but my name is [your full name].” It’s up to you if you want to provide your address and date of birth if asked for it, but I’d stop short of giving them your Social Security number.
“Please stop recording me. It’s against the law.”
Rarely is it advisable to educate officers about the law. But in a tense recording situation where the law is clearly on your side, it might help your case to politely present your knowledge of state law.
For example, if an insecure cop tries to tell you that you’re violating his civil liberties, you might respond by saying “Officer, with all due respect, state law only requires permission from one party in a conversation. I don’t need your permission to record so long as I’m not interfering with your work.”
If you live in one of the 12 all party record states, you might say something like “Officer, I’m familiar with the law, but the courts have ruled that it doesn’t apply to recording on-duty police.”
If you’re approaching the scene of an investigation or an accident, police will likely order you to move back. Depending on the circumstances, you might become involved in an intense negotiation to determine the “appropriate” distance you need to stand back to avoid “interfering” with their work.
If you feel you’re already standing at a reasonable distance, you may say something like, “Officer, I have a right to be here. I’m filming for documentation purposes and not interfering with your work.” It’s then up to you to decide how far back you’re willing to stand to avoid arrest.
Rule #4: Don’t Share Your Video with Police
If you capture video of police misconduct or brutality, but otherwise avoid being identified yourself, you can anonymously upload it to YouTube. This seems to be the safest legal option. For example, a Massachusetts woman who videotaped a cop beating a motorist with a flashlight posted the video to the Internet. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her. Not surprisingly, the charges against her were dropped.
On the other hand, an anonymous videographer uploaded footage of an NYPD officer body-slamming a man on a bicycle to YouTube. Although the videographer was never revealed, the video went viral. Consequently, the manufactured assault charges against the bicyclist were dropped, the officer was fired, and the bicyclist eventually sued the city and won a $65,000 settlement.
Rule #5: Prepare to be Arrested
“If you’re rolling the camera, be very open and upfront about it. And look at it as a potential act of civil disobedience for which you could go to jail.” It’s indeed disturbing that citizens who are not breaking the law should prepare to be arrested, but in the current legal fog this is sage advice.
“Shut it off, or I’ll arrest you.”
At this point you are risking arrest in order to test the boundaries of free speech. So if police say they’ll arrest you, believe them. You may comply by saying something like “Okay, Officer. But I’m turning the camera off under protest.”
If you keep recording, brace yourself for arrest. Try your best not to drop your camera, but do not physically resist. As with any arrest, you have the right to remain silent until you speak with a lawyer. Use it.
Remember that the camera might still be recording. So keep calm and act like you’re being judged by a jury of millions of your YouTube peers, because one day you might be.
Rule #6: Master Your Technology
Smartphone owners now outnumber users of more basic phones. At any moment there are more than 100 million Americans in reach of a device that can capture police misconduct and share it with the world in seconds.
If you’re one of them, you should consider installing a streaming video recording and sharing app such as Qik or Bambuser. Both apps are free and easy to use.
Rule #7: Don’t Point Your Camera Like a Gun
“When filming police you always want to avoid an aggressive posture,” insists Holmes. To do this he keeps his strap-supported camera close to his body at waist level. This way he can hold a conversation while maintaining eye contact with police, quickly glancing at the viewfinder to make sure he’s getting a good shot.
About Martin E. Regan, Jr.
Year after year, Martin E. Regan Jr., the firm’s senior partner, has dedicated tireless efforts on behalf of the accused and produce wins for clients that a less determined advocate would have thought hopeless. Martin E. Regan Jr.’s ability to tackle and win tough criminal cases has resulted in verdicts of acquittal in many highly publicized trials.