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Do You Have The Right to Record The Police?

By Christopher Coble, Esq. on April 13, 2015 | Last updated on March 21, 2019

In 2015, most, if not all, of us have a very powerful weapon in our pockets. That weapon is our cell phone. The modern cell phone's ability to record high quality videos and pictures makes it more than just a communication device. It is now a tool in the fight to combat police brutality and protect our civil rights.

In the case of Walter Scott, police officer Michael Slager previously claimed that he shot Scott in self-defense when Scott tried to take his taser. Since Scott died in the confrontation, there was nobody to contradict Slager's story, until a grainy cell phone video went viral. A bystander, lucky to be in the right place at the right time, recorded Scott running away. Slager, more than several feet behind Scott, shot him in the back eight times, and killed him.

If all we had was Slager's story, any investigation might have found his use of force was justified. With the video, Slager has been charged with murder.

Recording The Police

You have the right to record the police's actions in a public place or in any place where you have a right to be. In the case of Glik v. Cunniffe, the First Circuit Court of Appeals held, "A citizen's right to film government officials ... in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

Police Deleting Video

Unsurprisingly, police are often unhappy with citizens recording them. Some will try to stop you from recording. Others will even try to take your phone, and delete your videos.

In Virginia, Virginia Beach Police Department's Office of Internal Affairs is investigating an officer accused of deleting a video from a woman's camera after she was arrested. If these allegations are true, then the officer violated the woman's Fourth Amendment Right against unreasonable government searches and seizures. In the cases of Riley v. California and U.S. v. Wurie, the Supreme Court unanimously ruled that police cannot search a person's cell phone without a warrant.

Also, the Department of Justice wrote, in response to the case of Christopher Sharp v. Baltimore City Police Department, et. al., "Policies should prohibit officers from destroying recording devices or cameras and deleting recordings or photographs under any circumstances," because it violates the Fourteenth Amendment right to procedural due process.

Community Watch

In the aftermath of Walter Scott, Eric Garner, and Tamir Rice, the ACLU is encouraging people to record more videos of police action to hold police accountable. Here are some do's and don'ts to protect you and your rights:

Do:

  • Tell the police that you are recording them.
  • Stay a safe distance away.
  • Use apps like CopWatch and the ACLU's Mobile Justice that automatically upload videos to secure servers.
  • Call the ACLU if you've been threatened with arrest for recording the police.

Don't:

  • Obstruct the police activity.
  • Disregard instructions to step back or identify yourself.
  • Give the police permission to search your phone or delete videos without a warrant.
  • Trespass onto private property to record the police.

If the police have stopped you from exercising your right to record them or deleted video from your phone, an experienced criminal defense lawyer may be able to help protect your rights.

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