Want to Record The Cops? Know Your Rights

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EFF.orgThere are some very dis­turb­ing videos cir­cu­lat­ing the Inter­net right now, depict­ing the deaths of unarmed civil­ians at the hands of trained, armed men. Many of these videos even show indi­vid­u­als being shot in the back, or as they try to flee.

These are videos of police offi­cers in Amer­i­ca killing unarmed black men like Oscar Grant and Eric Gar­ner. And, as the most recent case shows, with­out these record­ings, much of Amer­i­ca might not have any idea exact­ly how much of a prob­lem this is.

Cit­i­zen videos of law enforce­ment encoun­ters are more valu­able than ever. And for those who are won­der­ing—it is legal to record the police.

The police don’t always seem aware of this. There have been inci­dents across the coun­try of police telling peo­ple to stop film­ing, and some­times seiz­ing their cam­era or smart­phone, or even arrest­ing them, when they don’t com­ply.

In the most recent cit­i­zen-filmed inci­dent to gain wide­spread media atten­tion, on April 4, white police offi­cer Michael Slager shot and killed 50-year-old black man Wal­ter Scott in the back as he ran away in North Charleston, South Car­oli­na. Bystander Fei­den San­tana filmed the encounter, which start­ed with a traf­fic stop. After Santana’s video sur­faced, the offi­cer was arrest­ed and charged with mur­der. San­tana said that he is scared of what might hap­pen to him. He also con­sid­ered delet­ing the video, and doing noth­ing with it. And San­tana is not the only per­son who may be intim­i­dat­ed by the prospect of film­ing the police, with good rea­son.

That’s why, in addi­tion to EFF Attor­ney Sophia Cope’s legal analy­sis high­light­ing some of the recent case law estab­lish­ing the right to film police offi­cers, we’re shar­ing some basic infor­ma­tion cop watch­ers should know.

What Courts Have Said

Courts across the coun­try have held that there is a First Amend­ment right to open­ly record the police. Courts have also held, how­ev­er, that indi­vid­u­als can­not inter­fere with police oper­a­tions, and that wire­tap­ping statutes that pro­hib­it secret­ly record­ing may apply to record­ing the police. But under­ly­ing these deci­sions is the under­stand­ing that record­ing the police is con­sti­tu­tion­al­ly pro­tect­ed.

Know Your Rights and Be Safe

While it has been estab­lished that indi­vid­u­als have the right to record the police, what hap­pens on the street fre­quent­ly does not match the law. Also, if you’re think­ing about film­ing the police, it’s like­ly you’ll have more police encoun­ters than you oth­er­wise would.

The Nation­al Lawyers Guild (NLG) is a bar asso­ci­a­tion that does police account­abil­i­ty work. The Nation­al Lawyers Guild Legal Observ­er pro­gram is focused on watch­ing the police at protests. Cop­Block and Cop Watch are loose­ly orga­nized groups that have chap­ters across the coun­try, and pro­vide resources on film­ing the police every­day.

Here are the most essen­tial things to keep in mind:

  • Stay calm and cour­te­ous, even though the sit­u­a­tion may be stress­ful. Remember—if you get arrest­ed or get into an alter­ca­tion with the police, you won’t be able to keep film­ing them!
  • Be sure that you are not inter­fer­ing with police oper­a­tions, and stand at a safe dis­tance from any encounter you film.
  • Your right to record audio sur­rep­ti­tious­ly of police car­ry­ing out their duties in pub­lic may vary from state to state. You should check your state law to know the fullest extent of your rights, but the low­est risk way to record is to hold your device in plain view of the offi­cers.
  • Do not lie to police offi­cers. If they ask whether you are record­ing, answer hon­est­ly.
  • If the police start inter­act­ing with you, treat the encounter as you would any encounter with law enforcement—in fact, you may want to be extra care­ful, since as the repeat­ed inci­dents of police seiz­ing cam­eras and smart­phones demon­strate, it may make you more of a tar­get.
  • If you are at a demon­stra­tion, police will often issue a dis­per­sal order—in gen­er­al, they will declare a protest an unlaw­ful assem­bly and tell peo­ple to leave. Unless you are grant­ed per­mis­sion to stay, that order applies to you, too. If you do not com­ply, you should expect to be arrest­ed.
  • While it is not legal for an offi­cer to order you to move because you are record­ing, they may still order you to move. If you do not com­ply you could be arrest­ed. If you do want to com­ply, con­sid­er com­ply­ing with the small­est move­ment pos­si­ble, and ver­bal­ly con­firm­ing that you are com­ply­ing with their orders. For exam­ple, if you are stand­ing five feet from an offi­cer, and they say “You need to move back,” you might want to con­sid­er calm­ly say­ing “yes, offi­cer, I am mov­ing back” while tak­ing a few steps back.

Below are some help­ful resources and tips relat­ed to inter­act­ing with and film­ing the police from these groups and EFF:

  • The Nation­al Lawyers Guild (NLG) “Know Your Rights” pam­phlet (avail­able in mul­ti­ple lan­guages) pro­vides basic infor­ma­tion you should know for inter­act­ing with the police.
  • The NLG Legal Observ­er Pro­gram train­ing man­u­al has tips for film­ing the police at protests, many of which are use­ful for film­ing any encounter.
    Cop Watch has resources and exam­ples here.
  • EFF’s Know Your Rights guide pro­vides infor­ma­tion on what you need to know if the police want to search your elec­tron­ic devices.

Why Focus on Cit­i­zen Record­ing When Depart­ments Are Imple­ment­ing Body­cams? 

As the con­ver­sa­tion about police account­abil­i­ty con­tin­ues to take place across the coun­try, body cam­eras are often pro­posed as a solu­tion, and they are get­ting a lot of atten­tion in the news right now. “Body­cam” record­ings have made a dif­fer­ence in some cas­es. But many trans­paren­cy and account­abil­i­ty advo­cates includ­ing EFF, have expressed rea­son­able doubts about their effi­ca­cy.  States are try­ing to grap­ple with the many pri­va­cy issues they raise, most­ly by con­sid­er­ing exempt­ing the footage from pub­lic records act requests. And while “body­cams” may be a con­tentious sub­ject, there’s lit­tle doubt that it is cit­i­zen footage of law enforce­ment encoun­ters that has real­ly fueled the cur­rent debate about police account­abil­i­ty.

Keep Tap­ing

As North Charleston Pas­tor Nel­son Rivers said: “If not for the video, we would still be fol­low­ing the nar­ra­tive from the offi­cer. If not for this video, the sto­ry would be entire­ly dif­fer­ent.” Scott’s fam­i­ly agrees. After watch­ing the video, his broth­er stat­ed: “I think that if that man nev­er showed the video we would not be at the point that we’re at right now.” And North Charleston Coun­cil­woman Dorothy Williams had this to say: “I’m ask­ing all the cit­i­zens of North Charleston to con­tin­ue tap­ing.”

You don’t have to live in North Charleston to know why that’s a good idea.

Dis­clo­sure: Nadia Kayyali serves as the Vice-Pres­i­dent for the Nation­al Lawyers Guild SF Bay Area Chap­ter, has served on the NLG’s nation­al board, and has been involved with the NLG legal observ­er pro­gram nation­al­ly for over four years.