While the U.S. Supreme Court hasn’t weighed in on the issue, federal circuit courts have held that individuals have a First Amendment right to film the public activities of police officers, such as a traffic stop or arrest. But this right isn’t absolute. Your rights can be restricted if your filming or recording creates a safety issue, interferes with an officer’s duties, or infringes on the privacy rights of others.
Recording Police Officers and the First Amendment
The First Amendment doesn’t specifically state that individuals have the right to film police officers. Rather, the First Amendment protects our rights to free speech and a free press, and with these rights comes the public’s right to access and gather information on government officials’ public activities. Courts have recognized that gathering information on police interactions with the public falls squarely under First Amendment protections and can assist with investigations, supplement news stories, improve policing techniques, and root out unlawful police practices. (Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017).)
Restrictions on Recording Police Officers
As noted above, your constitutional rights to film police can be reasonably restricted. Below are examples of reasonable restrictions on recording police officers.
Interference With Law Enforcement Duties
A person may record police performing their duties in public to the extent that the person's actions don’t obstruct the officer’s movements, interfere with the officer's duties, or put the officer or others in harm’s way. In fact, these actions could lead to an arrest for disorderly conduct, obstruction, or failure to comply with an officer's orders.
Private Property Is Private
If you're recording while on another’s private property, the property owner can rightfully ask you to stop recording. The property owner has a reasonable expectation of privacy on their property. You could end up being charged with trespassing or invasion of privacy if you refuse to respect the owner’s wishes.
Privacy Rights of Others
Even if you're recording on public property and the officers don’t have an expectation of privacy in conducting their duties, other people who could end up in the recording may have privacy rights. It’s generally a good idea to let people know you are recording, and in some states, it’s required.
State Laws on Recording Police Officers
Because the U.S. Supreme Court hasn’t taken up the issue, the right to record police officers in public isn’t always clear and well understood. Some states have taken it upon themselves to enact laws that protect citizens' right to record officers. For instance, here are the laws in Colorado, Hawaii, and Illinois.
Colorado law gives people the right to lawfully record incidents involving police and prohibits police from seizing the recording or device without consent, a warrant or subpoena, or a warrant exception. But the law also states the right to record does not allow a person to interfere with an officer’s lawful duties. (Colo. Rev. Stat. § 16-3-311 (2021).)
The Hawaii Supreme Court recognized the constitutional right to film official activities of the police in a public place but also found that the right may be reasonably restricted in time, place, and manner. (State v. Russo, 407 P.3d 137 (Haw. 2017).)
In both Hawaii and Illinois, their respective legislatures created exceptions to certain offenses prohibiting nonconsensual recordings. Under these exceptions, a person doesn’t commit a crime when lawfully recording an officer engaged in their duties in public, as long as the person does not interfere with the officer’s duties. (Haw. Rev. Stat. § 711-1111 (2021) (exception to second-degree violation of privacy); 720 Ill. Comp. Stat. 5/14-2(e) (2021) (exception to eavesdropping).)
What to Do If Officers Direct You to Stop Recording
If the police ask you to stop recording or leave the area, it’s important to realize that they may be doing so for your protection. Officers can limit your right to record for appropriate safety reasons. Often it’s best to move back from the area and film only when you are at a safe distance.
If you believe the officer’s actions are unreasonable, you can respectfully assert your First Amendment right to record in public. However, you’ll need to balance this right with the fact that you could be arrested and searched, regardless of whether the arrest is lawful.
When an officer makes an arrest, they can take your phone for evidentiary purposes but cannot search or damage it or delete any videos or pictures. Officers may ask for your consent to search the contents, but you do not have to give it. Generally, officers will need a search warrant or an exception to the warrant requirement to search your phone.
Remedies for Violation of Your Rights
Your potential remedies for a violation of your First Amendment rights will depend on the circumstances of the case.
Dismissal of Charges
If an officer arrests you for disorderly conduct, obstruction, or related offense, you might be able to seek a dismissal of any charges if the officer’s actions were not reasonable. Say you were across the street in a public area recording an arrest. If your recording did not present a safety issue or obstruct the officer’s duties, the officer likely didn’t have a reasonable basis for arresting you and ordering you to stop recording. However, if the officer knows the suspect being arrested has a gun and commands you to leave the area for your safety, your defiance of that command might very well result in justifiable charges.
Civil Rights Violations
Federal law allows citizens to sue government officials for violations of their civil rights, including First Amendment rights. (42 U.S.C. § 1983.) So if an officer grabs your phone and deletes the video, you could possibly sue the officer in civil court for damages. However, the ability to sue doesn’t guarantee a successful lawsuit.
Even if you have a strong claim, the law protects officers from liability if their actions didn’t violate clearly established rights (under a judicial doctrine called qualified immunity). Without Supreme Court guidance, it could be unclear in your jurisdiction just how far the right to record police officers extends. An officer may be able to argue that their actions in directing you to stop recording were reasonable in light of the situation, perhaps because it was unsafe.
Talk to an Attorney
If you feel your rights have been violated, talk to a civil rights attorney about your options. Your state’s law may offer more protection than federal law in this area. If you were arrested, contact a criminal defense attorney as soon as possible.