Recording Cops - A Different Angle on the Public's Right to Document Police Interactions

posted by Robert Rehkemper on Wednesday, March 09, 2016

Filming and recording police officers during the routine performance of their duties is becoming an ever increasingly popular topic for legal commentators, activists and citizens across the entire nation. For good reason. Instances of police misconduct captured by way of citizen’s recording events with their mobile phones have brought this topic storming to the forefront of popular culture. Now, litigation surrounding alleged violations of citizens rights to record officers during these types of encounters are working their way through the legal system. To date, the United States Supreme Court has not yet weighed in on this specific issue.
 
The traditional argument put forward for citizen’s right to record law enforcement in the routine performance of their duties has been under the First Amendment to the United States Constitution. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.”
 
Without delving into the intricacies of First Amendment protections, the majority of the Federal Circuits in the United States presented with this issue have concluded that the First Amendment protects a range of conduct surrounding the gathering and dissemination of information, including the right of individuals to video tape police officers performing their duties in public. See Garcia v. Montgomery County, Maryland --- F.Supp.3d --, 2015 WL 6773715; citing Gericke v. Begin, 753 F.3d, 1 (1st Cir. 2014); American Civil Liberties Union of Ill. V. Alvarez, 679 F.3d 583 (7th Cir. 2012) (State law prohibiting recording of police officers performing their duties in public violated the First Amendment); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). The reasoning behind these decisions is that the gathering of information about government officials in a form that can be rapidly disseminated “serves a cardinal First Amendment interest in protecting and promoting the 'free discussion of governmental affairs.'” Glik v. Cunniffe, 655 F.3rd 78 (1st Cir. 2011).
 
Not all courts have agreed though. A recent decision out of Pennsylvania has ignited controversy where the court concluded that two citizens did not enjoy a First Amendment right to photograph police absent any criticism or challenge to the specific police conduct. According to that Judge, because the individual’s filming law enforcement did not advance a particular “expressive purpose” behind their recordings, they were not exercising protected speech under the First Amendment. Using that court’s own logic though, had those two citizens claimed that they were using the recordings to challenge police actions, their conduct would have qualified as protected speech under the First Amendment.

The legal issues and arguments for and against a citizen’s First Amendment right to record law enforcement during the routine performance of their duties could take up an entire legal textbook. Indeed, professors and legal scholars across the nation, certainly more knowledgeable than this author, have made careers out of this debate. That all being said, what does it really matter whether or not recording law enforcement is guaranteed and protected by the First Amendment?  

In all reality, for all Iowans and a vast majority of Americans, this debate only comes into play in situations where the citizen wants to pursue a civil suit against law enforcement for prohibiting or interfering with attempts to record police. In these law suits law enforcement is allowed to advance the defense of qualified immunity which gives them shelter from law suits for violating citizen's rights that may not be "clearly established" at the time the violation occurs. However, most of these cases also implicate an illegal search and seizure by law enforcement because force would be used to prevent the recording. While it is certainly an intriguing legal debate, practically speaking, other well-established legal causes of action already exist to remedy the violation without the need to blaze new trails.
 
Leaving the debate over the genesis of the constitutional right to record law enforcement in public to the legal scholars, let’s look at the issue from a different angle. An angle that better captures the true spirit of individual freedoms in America. An angle that instead of asking “where does my right to do something come from” asks, “what says I can’t?” Turning the question on its head and asking “what prevents the citizen from recording the incident” more appropriately frames the issue. It is a fundamental American principal that if a law does not prohibit certain conduct, we as citizens are free to engage in it to our hearts content.
 
In most states, including this author’s home state of Iowa, there is no prohibition from citizens filming or documenting anything taking place in public view so long as the individual being filmed does not have a reasonable expectation of privacy at the time of being photographed. There is no better example of this phenomenon than the viral episode of spontaneous public “entertainment” that on the top of an 18-Wheeler in the middle of Houston’s Highway 290 during a traffic jam. (Don’t know what I’m talking about? Click here at your own risk). There are certainly restrictions on how a person may use the recording after it is obtained but that is not the focus of this article.
 
If a fellow stranded motorists can legally film traffic jam “entertainment;” if a tourist can walk around freely filming their experience of a new town; if a citizen can take a selfie with an Irish Guard outside of Buckingham Palace; why can’t that same citizen snap a picture of N.Y.P.D.’s finest scarfing down a delicious Bavarian Cream donut or better yet, roughly arresting another citizen at a public protest? The rational answer is, “they can.” Nothing says you cannot so you can. In a day-and-age where security cameras are on the exterior of most buildings, intersections are equipped with traffic cameras, and Google has brought a photographic view of the entire world into our own offices and living room, a person would be hard-pressed to claim an expectation of privacy in normal public space. Certainly, what goes on in broad daylight on a public street is fair game for any and all to witness and document accordingly.
 
The issues can become a little complex when we start talking about more than snapping photographs or video. Most video recordings also record audio. Additionally, there may certainly be situations where a citizen may want to create an audio recording without law enforcement or governmental officials knowing. This is the approach taken by some popular police interaction tools such as the Oh Crap App. The reason being is that a citizen is more likely to caputure the “true character” of a governmental official when the official is not aware they are being recorded compared to when they are staring down the lens of a video camera.
 
In a vast majority of states, including Iowa, this is a non-issue. Citizens are free to create audio recordings of things that take place in public. For the sake of brevity we will not delve into the finer points of one-party vs. two-party recording states as it pertains to conversations and communications that take place outside of the public realm where one of the parties may be considered to have an expectation of privacy in their conversation. This too is a discussion for another time. It suffices to say that in the vast majority of states, no law specifically prohibits citizens from recording whatever is audible to the general public. Citizens in those states are free to record away simply based upon the fact that no law says they cannot.
 
There are however, four states with state laws arguably creating more restrictions pertaining to recording of even public conversations. Those states include Massachusetts, Maryland, Montana and New Hampshire. It is in these states that the constitutional right to record and document what takes place in public becomes important. When a state passes a law prohibiting certain conduct, that law is always subject to the requirement that it may not infringe upon a constitutional right. Therefore, if a person has the constitutional right to record and document an occurrence in public, the state laws prohibiting them from doing so are invalid.
 
Notably, Massachusetts and New Hampshire are under the jurisdiction of the First Circuit Court of Appeals which has already ruled that an individual has the First Amendment right to record police officers performing their duties in public. Similarly, Montana is located within the 9th Circuit which has also recognized a First Amendment right to film matters of public interest in a case where police officers interfered with a citizen attempting to film a public demonstration directed against the police. Those Circuit decisions should serve to invalidate the state prohibitions, at least in part.
 
Certainly, with litigation popping up all over the country on these issues, we should expect the United States Supreme Court and various state supreme courts to weigh in definitively on this issue soon. Until then, if nothing says you cannot record, you can record. If a law says you cannot recorde events taking place in public, it probably violates the First Amendment to the United States Constitution. To quote the First Circuit Court of Appeals: “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.” Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cri. 2011). Thus, not only is it your right to record law enforcement in public, it is your duty as an American citizen to promote and assist in the dissemination of information that fuels the “free discussion of governmental affairs.” Bottom line - Keep those cameras and recorders rolling!
 
NOTE: The contents of this blog is informational only. It is intended to generate thought provoking discussions not to provide legal advice. The author of this article is only licensed to practice law in the State of Iowa. Nothing in this blog post should be considered to be legal advice nor should it be considered to be a definitive comment regarding the law of any state other than Iowa. One should always consult a competent attorney in their specific state if a question arises regarding the legality of certain conduct in their state.
  1. first amendment
  2. iowa law
  3. oh crap app
  4. recording cops
  5. rights

About The Author

Mr. Rehkemper was selected to the Super Lawyers list for the sixth straight year in 2018, and has repeatedly been named Avvo’s Client Choice and Top Attorney for DUI defense with a Superb rating of 10.0 out ... read more