Whether you are being questioned by police or are witnessing a police encounter with another person, you may consider recording the interaction. The news has shown how a police recording can provide evidence of whether a police officer has acted lawfully in making an arrest. However, depending on how and where you are filming the police, you could find yourself facing a host of charges related to the filming.
What is Your Right to Film Police?
In general, you have the constitutional right to take photographs and videos of things that are plainly visible from public areas. This is how many news agencies film footage of crowds and street shots for certain articles. However, the term “public area” is broader than you might expect. Transportation facilities like subways and train stations, federal buildings, parks, streets, and state-owned buildings are all public areas. Also, since the police action must be visible from public areas, it does not mean that the police may not be on private property like an easily visible front porch or store parking lot at the time you are filming them.
Wherever you are filming from, you must be in the area legally, so you do not want to be in a public park after hours, for instance. You may also film on private property, but only if you have permission to do so by the owner of the property. New York is a state that requires only one party in a conversation consent to an audio recording, but the courts have, so far, held that even in states with much stricter recording laws, it is a citizen’s First Amendment right to record police conduct in public, as well as public speeches and protesters.
What Should You Avoid Doing?
As mentioned before, you should be sure that, wherever you are filming from, you have permission from the owner to do so. Otherwise, you could be arrested for trespassing. You should also be sure that your filming does not interfere with the police’s actions, as you could be charged with obstructing the police. The courts will often side with officers’ judgment as to whether your recording was actually interfering with their duties unless it is very clear that your recording could not have possibly limited their ability to do their jobs. That is why it is best to record from a distance and, if the officer tells you you can’t film from a particular location, be sure to take a step or two back.
Police may ask you to stop recording, even when you have a legal right to do so. Even when you have the absolute right to continue filming or taking pictures, doing so could have consequences. As noted above, police may find a reason to arrest you or attempt to confiscate your phone. Even if the the charges are wrong or exaggerated, you could be face arrest. Although most police officers should know the law and your rights, you should be prepared for this possible worst case scenario and how it could impact you.
What Shouldn’t the Police Do?
The officers shouldn’t tell you to stop filming, as long as you are on public property or have the permission of the owner of private property and you aren’t interfering in their stop and/or arrest of you or someone else. Police also shouldn’t order you to delete the photos or video you have already recorded or attempt to confiscate your phone or view your recordings. Police are only authorized to seize a phone or camera if the officers have a reasonable belief in good faith that it has evidence of a crime committed by someone other than the police, and may need to obtain a warrant before the officers can search the phone or camera themselves.
What Happens if I Am Stopped from Filming?
If you are filming or photographing the police, there are a few things to remember. You should always be polite to the officer; you do not want to give the police additional opportunities to charge you with fighting them or obstructing them in anyway. If the officer has stopped you, be sure to ask the police if you are free to go. As soon as you ask to leave, you are no longer there voluntarily and the police are officially detaining you, which they cannot do if they do not have reasonable suspicion that you have or are about to commit a crime.
You should assert your rights, but again, remember to be polite. Tell the officer that you believe you have the right to photograph or video the officers and that you do not consent to any searches of your phone or camera or the deletion of anything on it. Do not resist an officer attempting to take your camera, but again repeat that you do not consent. Otherwise, you could face a charge for “resisting arrest.”
What If I Am Arrested?
If you are arrested, you will want to make note of everything that happened and do what you can to preserve the recording or photographs you took of the incident. These can serve as proof as to whether you complied with the officer. Identify any other witnesses who may have seen you recording the incident and how you responded to the officers and keep note of where you were filming from and where the officers were making their stop or arrest.
If you asserted your rights and asked to go at the time you were stopped by police, you should have a few options to challenge the charges issued against you. Police cannot claim that you voluntarily handed over your phone if you told them you did not consent to do so or that you stayed of your own free will if you asked to leave and were not given permission by the officers at the scene. Then, it is on the police to show they had a reasonable suspicion that you had or would commit a crime.
Keep in mind that challenging these kinds of charges often involves complicated Constitutional issues, and hiring a lawyer is, probably, one of the wisest steps you can take if you decide to challenge an arrest as a result of recording the police.