Know your rights when recording and interacting with police: a guide
As technology has changed, society’s understanding of the First Amendment has changed with it, extending beyond press credentials. Filming law enforcement and sharing video on social media has been an impetus for reform and the front lines of information dissemination. In light of this, below are points about the law, ways to assert your rights when interacting with the police, and recording tips. Police are not the enemy—but sometimes police training includes tactics to influence people to surrender their rights in a confrontation. If you know your rights and have certain phrases in your back pocket, hopefully altercations can be avoided. If confrontations do occur, this guide covers what do and say in your recording.
Citizen journalists have become a serious player in criminal justice and are here to stay. As fear on both sides of the badge has heightened in light of recent events, it is necessary to explore new ways to bridge a growing gulf. Citizen journalists have the opportunity to approach their jobs with empathy, while police officers have the opportunity to embrace public scrutiny. As Ed Yohkna from ACLU says, “Police officers who respect civilians and the law will only enhance the reputation of their departments when recorded by civilians.” Change isn’t only affected by negative displays.
Recording and posting audio and video in public spaces is well within one’s rights. The U.S. Appellate Court states: “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”
But, as emphasized by the advocacy group PEN America in a recent petition, amateur journalists have faced consequences for documenting the police. There are many instances of police retaliation, including harassment of family members, taunting incidents, and arrests.
After Chris LeDay posted a video of the shooting of Alton Sterling, PEN America writes, he “…was arrested at his work less than 24 hours after he posted the video online and told he fit the description of a suspect wanted for assault, he reported on his Facebook page. Only upon being transported to jail, handcuffed and shackled, did he find that his arrest warrant referenced only old traffic tickets.”
After filming her fiancée’s fatal shooting, Lavish Reynolds “told reporters that police confiscated her phone and that she was denied water and food during a long night in detention.”
Recently, in New York, Maurice Crawley was arrested for filming an arrest across the street from the police. The video can be viewed here.
The U.S. appellate court states, “…though not unqualified, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
Knowing and asserting your rights:
You are allowed to record police in a public space so long as you are not obstructing or interfering with their duties. Keep in mind: if you are reaching into your pocket for your phone, make sure that it is clear you are holding a recording device, not a weapon. Use common sense and a respectful, deescalating tone of voice.
Some possible interactions:
- If a police officer asks you what you’re doing or tells you to stop recording, you can clearly, calmly, and respectfully establish your rights by stating something along these lines: “I am exercising my First Amendment right to record video and audio of police conduct in a public space. I am standing out of the way and am not obstructing justice.” Speak clearly so your video will pick up your statements.
- If a police officer says that you don’t have a right to record, state politely and calmly, “I have the right to record in a public space and I do not legally need your permission to openly record.”
- If an officer tells you to stand back or go away, and you feel you are already at a safe distance, you can state clearly, “I am recording from a safe distance and am not obstructing your duties.” Always use common sense and be objective about what a safe distance means.
- If an officer threatens arrest if you don’t turn off your camera, you can repeat your rights as stated above. If at this point you feel that you must turn off your device for your well-being, you can state, “I am turning off my camera against my will.” If you continue recording, do not resist arrest, and continue narrating so your device picks it up.
- If an officer asks if you are affiliated with a press or asks for credentials, you can state that you are a citizen journalist and this is within your rights.
- If an officer asks to see your footage, you can politely refuse.
- If a police officer asks you questions, you may state, “I choose to remain silent.” If they threaten arrest, simply state, “I choose to remain silent and wish to speak with an attorney.”
- Whatever information they gain after this is not admissible in court as evidence. You may state this to deter questioning.
- A police officer must have reasonable cause to ask to see your ID. If you are asked for ID, calmly ask, “Am I under arrest?”
- If you are under arrest, he must have reasonable cause.
- If he says that you are not under arrest, you can reply, “No disrespect, but I understand my rights and I refuse to give you my ID unless you have reasonable cause for me to be a suspect or in violation of a crime.” You can even add that it is nothing personal and that you are merely exercising your rights.
State Laws and Privacy:
If a society or jury deems that a person has the right to privacy in a certain setting (i.e. a meeting), then a citizen journalist cannot record. Some states require you to state clearly that you are recording. Almost all states allow citizens to document on-duty law enforcement in public. Secretly recording is usually not legal.
In the case of Glik v. Cunniffe, it was determined that there was no probable cause for arrest based on wiretapping laws in Massachusetts because Glik’s phone was in plain view and should not be considered “secret.”
Keep in mind:
- You cannot follow a police officer into a home—the laws of trespassing will apply.
- You are allowed to film in your own home, but state clearly that you are recording.
- You cannot film in an “inherently dangerous situation” such as the middle of a traffic stop, as determined by Kelly v. Borough of Carlisle.
- Download the ACLU Mobile Justice App to have footage sent immediately to your local ACLU.
- You can live stream to YouTube as you record so that your footage can’t be deleted and cannot be said to be edited.
- If you don’t want to or cannot live stream, make sure your video recording settings are set to immediately back up to the cloud so it cannot be easily deleted from your device.
- Record in landscape so your footage encompasses the most area of action.
- Stand across the street or as far as possible while not compromising the content of the recording, so that you cannot be said to be obstructing an officer’s duties. This includes lights that can distract a police officer. Use common sense: an object pointed at an officer, including a phone, may be believed to be a gun, so make sure to communicate and move in such a way that the officer would reasonably know that you are not a threat.
- Use auto-lock and pass code protection on your phone so that if it is taken from you, it cannot be searched without a warrant.
- Keep enough storage space on your phone for video recording.
- If you are forced to lower your device (because an officer is harassing or touching you, or for any other reason), continue narrating events clearly, including statements that make it clear that you are not obstructing justice.
- If you document consistently, make sure you are within your rights if you are continuously recording specific police officers; make sure that your actions cannot be interpreted as harassment. If an officer claims harassment, however, it should be settled in civil court, not dealt with through arrest.
- Remain calm, speak clearly and without provocation, and try to assume the best intentions. If the police officer believes the journalist to have hostile intentions, and the situation is already tense or dangerous, things can escalate quickly. Use a non-provocative tone of voice and aim in good faith to be truly non-obstructive.
The US Appellate court also stated, “In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights… The same restraint demanded of law enforcement officers in the face of ‘provocative and challenging’ speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.”
FBI Director Comey blamed the rise in crime on the “viral video effect,” which he claimed caused police to hesitate or not do their jobs. The White House responded that “evidence at this point does not support the notion that law enforcement officers around the country are shying away from fulfilling their responsibilities.”
I imagine it must be hard to be in the spotlight as a police officer. Being in tense situations and interacting with potentially hostile people throughout the day can be stressful; being filmed can be experienced as an additional stressor when there is evidence of growing animosity from the public.
And yet, as Jocelyn Simonson, a professor at Brooklyn Law School studying the effect of recording law enforcement, told Vice, “From my research, police do behave differently when civilians are taking out smartphones and pointing them. They are more reluctant to use lethal force, aggressive force — and that’s a good thing.”