It’s been a long week, thank God it’s Friday, having just left work, you park your car and you’re walking into Starbucks to meet a friend and hang out. Then this happens, you see a young man, surrounded by 3 police officers, minding your own business, you go into Starbucks, and you’re waiting on your Venti Caramel Macchiato when out of the corner of your eye, you see that young man on the ground, with 2 officers on top of him and the third officer repeatedly kicking him. You whip out your iPhone and began to record video of what’s going on, you go outside to get a better angle, but you’re not in anyway interfering with the officers and you not concealing the fact that you’re recording the cops. Typically what happens is at some point the police realize that you are recording them and they issue an ultimatum, either stop recording or be arrested and have your phone taken as evidence. So the question is, do you have a legal right to record the police as they serve and protect? Yes you do and here are 5 things that you need to know before you record the police.
- Know the law. The Courts have consistently held that the 1st Amendment gives private citizens the right to record the police as they go about their duties. Specifically, the Courts have held that citizens have the right to gather information about what public officials do in public, and that citizens especially have the right to record matters of public interest. This right is subject to reasonable time, place and manner restrictions, which is another way of saying that as long as you are in a public place (somewhere you have a right to be) and are not interfering with the police carrying out their duties, you have the right to record them. Finally, in some states, including Indiana, it is illegal to privately record another person without their knowledge and consent. For this reason, it is important that when you record, you do so “openly” to put the police on notice. Another way of thinking about this is that you should record like a reporter, not like an undercover spy. The courts have held that “open” recording is fine and does not violate all consent laws but secret recording could amount to an illegal act. Remember record like a reporter, not a spy.
- Know your technology. As mentioned above, the police certainly won’t be happy about you recording them, so it is not at all uncommon for them to attempt to take your recording device. If they take your device, your video could be destroyed by police. However, there are apps available for smartphones such as Bambuser that uses a live stream to record. What this means is that even if your phone is taken, the video footage that you have recorded up to that point will be saved in a separate location and can be retrieved at a later time (some others to check out are: FiVo Film; Open Watch; Sneaky Pix; Cop Recorder 2 and Call Recorder). Also, always be sure to make sure that your phone is always passcode protected. This is important because the United States Supreme Court has recently ruled that the police must obtain a warrant before they can search your phone.
- Kill Them with Kindness. Many times people will allow the police to prevent them from exercising their right to record as soon as police question their actions. However, there are polite ways to respond. For instance, if an officer says, what are you doing? You might politely say, Officer I have a 1st Amendment right to record you doing your job but I will not interfere in any way. Maybe the officer says, hey you better get out of here or get back, you might respond by saying, officer I’m not interfering but I will step back no problem.
- Do not point the camera like it’s a gun. I am willing to bet that by now most of you have heard about the terrible eyesight police officers have these days. If not, simply “Google” police mistakenly shoot man. If you search long enough, you will find that police have shot and killed people numerous times because they mistakenly believe that the person was armed. Some examples are: man shot holding a candy bar, man shot holding a cell phone, man shot holding a sandwich and so on. So be careful how you point your phone or other recording device, it could be dangerous.
- Be prepared to be arrested. Finally, please understand that even if you follow all of the tips in this article to the letter, the police will not like it and they could arrest you. Some of you may have already noticed, that the police don’t always follow the laws that they are sworn to enforce. In the end, you have to use your best discretion as to whether you are willing to be arrested for lawfully recording the police. Some people look at it as an act of civil disobedience and are willing to be arrested. Others may want to consider saying something like, officer I am turning off my recording although under the 1st Amendment I have a right to record you as you perform your duties. That’s a wrap, the next time you see something that should be shared with the world, … lights, camera, action! We’ll be watching, stay safe and good luck.
NOTE: This article would not be possible without Steve Silverman of Flexyourrights.org, please visit their site for more information about exercising your rights.