Want to Record The Cops? Know Your Rights

by Nadia Kayyali
EFF.org
Apr. 17, 2015

There 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.