“I’m ask­ing all the cit­i­zens of North Charleston to con­tin­ue taping.”

That is what Coun­cil­woman Dorothy Williams said in response to the shoot­ing death of Wal­ter Scott. She and oth­ers rec­og­nize that the sto­ry would have been very dif­fer­ent with­out the video show­ing that a white police offi­cer shot the unarmed black man sev­er­al times in the back as he ran away from a traf­fic stop in North Charleston, South Car­oli­na. Both NBC News and Huff­in­g­ton Post imag­ined the sto­ry absent the video.

The trag­ic encounter was filmed by 23-year-old bystander Fei­den San­tana. After San­tana released his video, the offi­cer was arrest­ed and charged with mur­der. San­tana decid­ed to share the video with Scott’s fam­i­ly because he knew it con­tra­dict­ed the offi­cial police account.

This case exem­pli­fies why an impor­tant com­po­nent of police account­abil­i­ty is the abil­i­ty of cit­i­zens to record offi­cers car­ry­ing out their pub­lic duties. Thank­ful­ly San­tana was not harassed for wield­ing his cell phone, but many peo­ple have been: offi­cers have ordered peo­ple to stop record­ing, seized their devices, delet­ed the pho­tos or video/audio record­ings, and even arrest­ed people.

The Jus­tice Depart­ment report on the Fer­gu­son Police Depart­ment issued last month chron­i­cled a pat­tern of abu­sive and uncon­sti­tu­tion­al behav­ior by police offi­cers when cit­i­zens tried to record them (see pages 26–28). One offi­cer arrest­ed a woman after she began record­ing her husband’s arrest by the offi­cer. As the report explains, “The offi­cer became irate, declar­ing, ‘you don’t video­tape me!’”

Some fed­er­al appeals courts and the Jus­tice Depart­ment have rec­og­nized the right of cit­i­zens to record the police, although the Supreme Court has not square­ly ruled on the issue. Recent cas­es have specif­i­cal­ly addressed record­ing the police in the age of the cell phone, which can record pic­tures, video and audio (with audio record­ing impli­cat­ing wire­tap laws).

In 2011, the U.S. Court of Appeals for the First Cir­cuit issued an opin­ion in Glik v. Cun­niffe. Simon Glik had used his cell phone to record both video and audio of Boston police offi­cers arrest­ing anoth­er man. The offi­cers then arrest­ed Glik for mak­ing the record­ing, but the charges were lat­er dropped. Glik sued the offi­cers and the City of Boston for vio­lat­ing his con­sti­tu­tion­al rights.

The First Cir­cuit held that the First Amend­ment “unam­bigu­ous­ly” pro­tects the right of cit­i­zens to record the police – and gov­ern­ment offi­cials gen­er­al­ly – car­ry­ing out their offi­cial duties in pub­lic. The court stat­ed, “Ensur­ing the public’s right to gath­er infor­ma­tion about their offi­cials not only aids in the uncov­er­ing of abus­es, but also may have a salu­tary effect on the func­tion­ing of gov­ern­ment more generally.”

The details of the case are impor­tant. Rely­ing on the fact that Glik had stood about 10 feet away from the offi­cers, the court stat­ed, “Such peace­ful record­ing of an arrest in a pub­lic space that does not inter­fere with the police offi­cers’ per­for­mance of their duties is not rea­son­ably sub­ject to limitation.”

The First Cir­cuit also held that the Boston police vio­lat­ed the Fourth Amend­ment because they did not have prob­a­ble cause to arrest Glik. Because Glik’s record­ing of the oth­er man’s arrest includ­ed audio, the offi­cers accused Glik of vio­lat­ing the Mass­a­chu­setts wire­tap statute. Mass­a­chu­setts is an “all-par­ty con­sent” state, mean­ing that all par­ties to a con­ver­sa­tion must con­sent to it being record­ed; where­as the fed­er­al Wire­tap Act and oth­er states’ laws are “one-par­ty con­sent” statutes, mean­ing that only one par­ty to a con­ver­sa­tion needs to con­sent to it being recorded.

The First Cir­cuit not­ed that although the Mass­a­chu­setts wire­tap statute pro­tects both pri­vate and pub­lic con­ver­sa­tions (notwith­stand­ing the First Amend­ment), it only pro­hibits “secret” audio record­ing where the par­ties to a con­ver­sa­tion are unaware that they are being record­ed. By con­trast, the court found that the offi­cers were on notice: Glik held his cell phone – “a device com­mon­ly known to record audio” – in “plain view” of the offi­cers and one offi­cer, in fact, knew that Glik was record­ing audio because the offi­cer asked Glik if he was doing so and Glik replied in the affirmative.

Thus, the court held that Glik did not vio­late the Mass­a­chu­setts wire­tap statute because he did not make the audio record­ing sur­rep­ti­tious­ly – even though the offi­cers were engaged in a pub­lic “con­ver­sa­tion” with the arrestee and no one con­sent­ed to being record­ed. (In 2014, a Mass­a­chu­setts woman was charged with vio­lat­ing the wire­tap statute for mak­ing a secret audio record­ing of her own arrest by hid­ing her smart­phone in her purse, but the charge was lat­er dropped.)

In 2012, the U.S. Court of Appeals for the Sev­enth Cir­cuit issued an opin­ion in ACLU of Illi­nois v. Alvarez. The ACLU chal­lenged the con­sti­tu­tion­al­i­ty of the Illi­nois wire­tap statute, which, like the Mass­a­chu­setts law, pro­tect­ed both pri­vate and pub­lic con­ver­sa­tions and required the con­sent of all par­ties to a con­ver­sa­tion. Unlike the Mass­a­chu­setts wire­tap statute, how­ev­er, the Illi­nois statute pro­hib­it­ed all audio record­ing, not only sur­rep­ti­tious audio record­ing. The ACLU of Illi­nois was fear­ful of pros­e­cu­tion because it intend­ed to record police offi­cers per­form­ing their offi­cial duties in pub­lic as part of an account­abil­i­ty program.

The Sev­enth Cir­cuit grant­ed a pre­lim­i­nary injunc­tion and held that the Illi­nois wire­tap statute like­ly vio­lat­ed the First Amend­ment because it pro­hib­it­ed the audio record­ing – a “medi­um of expres­sion” – of pub­lic con­ver­sa­tions of police offi­cers where no pri­va­cy inter­ests exist­ed. The court said that the Illi­nois leg­is­la­ture was not jus­ti­fied in “crim­i­nal­iz­ing this par­tic­u­lar method of pre­serv­ing and pub­lish­ing the pub­lic com­mu­ni­ca­tions of these pub­lic offi­cials.” Though it was not cen­tral to the deci­sion, the court also not­ed that the ACLU’s plan was to open­ly – not sur­rep­ti­tious­ly – record police offi­cers in public.

The Sev­enth Cir­cuit was quick to empha­size, how­ev­er, that the right to record the police is not a right to inter­fere with police oper­a­tions. The court said, “Noth­ing we have said here immu­nizes behav­ior that obstructs or inter­feres with effec­tive law enforce­ment or the pro­tec­tion of pub­lic safe­ty.” Thus, “While an offi­cer sure­ly can­not issue a ‘move on’ order to a per­son because he is record­ing, the police may order bystanders to dis­perse for rea­sons relat­ed to pub­lic safe­ty and order and oth­er legit­i­mate law enforce­ment needs.”

In line with these fed­er­al cas­es, in March 2014, the Illi­nois Supreme Court held in two cas­es that the state wire­tap statute was uncon­sti­tu­tion­al under the First Amend­ment pre­cise­ly because it pro­tect­ed pub­lic con­ver­sa­tions where the par­ties had no expec­ta­tion of pri­va­cy, and it crim­i­nal­ized even open record­ing where the par­ties were on notice that their con­ver­sa­tion was being recorded.

In Decem­ber, the Illi­nois leg­is­la­ture sought to cure the con­sti­tu­tion­al defi­cien­cies of the wire­tap statute: it nar­rowed the law to make it a crime to record a pri­vate con­ver­sa­tion in a sur­rep­ti­tious man­ner. While it may be dif­fi­cult to deter­mine when par­ties have a rea­son­able expec­ta­tion of pri­va­cy and thus are hav­ing a “pri­vate” con­ver­sa­tion even in a pub­lic place, we hope that this law will not be used to jus­ti­fy the arrest of Illi­nois cit­i­zens mak­ing audio record­ings of police offi­cers car­ry­ing out their offi­cial duties in public.

Last year, the city of Bal­ti­more set­tled with Christo­pher Sharp for $250,000 after he filed a law­suit alleg­ing vio­la­tions of his con­sti­tu­tion­al rights. Police offi­cers had seized his cell phone and delet­ed his record­ings, which includ­ed the arrest of one of his friends by the officers.

In that case, to the delight of civ­il lib­er­tar­i­ans, the Jus­tice Depart­ment twice weighed in to defend cit­i­zens’ rights: in a state­ment of inter­est filed in the dis­trict court, and in a let­ter sent to the Bal­ti­more Police Depart­ment. In the state­ment of inter­est, the Jus­tice Depart­ment wrote, “The First Amend­ment pro­tects the rights of pri­vate cit­i­zens to record police offi­cers dur­ing the pub­lic dis­charge of their duties.”

The state­ment of inter­est also addressed the seizure of Sharp’s cell phone, explain­ing that under the Fourth Amend­ment the police can­not seize a cell phone (or oth­er device) with­out a war­rant unless the offi­cer has prob­a­ble cause to believe that the device holds evi­dence of a crime and there is an emer­gency (i.e., “exi­gent cir­cum­stances”) jus­ti­fy­ing a war­rant­less seizure. Even if the war­rant­less seizure is jus­ti­fied, the police may not search the device with­out a war­rant based on prob­a­ble cause – and they cer­tain­ly may not delete files.

If a per­son is arrest­ed (which Sharp was not), the police may not search a cell phone sim­ply based on the fact of the arrest – they must gen­er­al­ly obtain a war­rant from a judge.

In 2012, par­tial­ly in response to the Sharp case, EFF joined a let­ter to Attor­ney Gen­er­al Eric Hold­er call­ing on law enforce­ment author­i­ties to respect the First Amend­ment right of cit­i­zens to record the police.

Unfor­tu­nate­ly, Bal­ti­more police appar­ent­ly have not learned their les­son. In Decem­ber, a woman filed a law­suit after she was alleged­ly pulled from her car and tased while attempt­ing to record the arrest of anoth­er man.

The Dis­trict of Colum­bia Police Depart­ment is a good exam­ple of a robust pol­i­cy direct­ing offi­cers to respect the right of cit­i­zens to record the police. Issued in 2012, the heart of the pol­i­cy states, “The Met­ro­pol­i­tan Police Depart­ment rec­og­nizes that mem­bers of the gen­er­al pub­lic have a First Amend­ment right to video record, pho­to­graph, and/or audio record MPD mem­bers while MPD mem­bers are con­duct­ing offi­cial busi­ness or while act­ing in an offi­cial capac­i­ty in any pub­lic space, unless such record­ings inter­fere with police activity.”

EFF urges more police depart­ments and more courts to rec­og­nize the clear First Amend­ment right of cit­i­zens to record police offi­cers car­ry­ing out their pub­lic duties.

See my col­league Nadia Kayyali’s relat­ed blog post that includes tips and resources on how to safe­ly record and inter­act with the police.

Relat­ed Cases
Riley v. Cal­i­for­nia and Unit­ed States v. Wurie