Occupy Protests Raise Questions About Recording Police Officers

By Robyn Hagan Cain on November 22, 2011 | Last updated on March 21, 2019

If you’ve been anywhere a television, newspaper, or computer in the last five days, you’ve most likely seen images of a UC Davis campus police officer pepper-spraying a line of peaceful protesters on November 18.

Many people are outraged by what they believe is the use of excessive force against peaceful protesters, and question whether the officer would be protected by qualified immunity. Others are simply debating whether pepper spray is “a food product, essentially.”

We think one of the more fascinating elements of this story - and other California Occupy protests for which there are video recordings depicting possibly-excessive force against protesters - is that none of the people taping these incidents have come forward with reports of police harassment. This is especially surprising because the laws in most jurisdictions, including California, are not clear on the issue; the First Circuit is the lone exception.

The First Circuit Court of Appeals ruled in August that citizens have a right to record the police. The case, Glik v. Cunniffe, stemmed from an incident in which an attorney used his phone to record video footage of Boston police officers arresting a suspect because the attorney thought the officers were using excessive force. The Seventh Circuit Court of Appeals heard oral arguments in a similar case in September, but has yet to issue an opinion.

What guidance is there for Californians?

California prohibits eavesdropping or recording a conversation without consent when the person being recorded would reasonably expect privacy. In 1989, a California Court of Appeals ruled that the recording prohibition included recording a person with a hidden video camera in a private place. The problem for Occupiers and their documenters is that neither the Ninth Circuit Court of Appeals nor the California Supreme Court have clarified whether the prohibition extends to recording police officers in public without their consent.

The viral YouTube videos of the UC Davis pepper-spraying police officers led to two officers being placed on leave; we suspect that action will prompt suspicion among police officers about bystander tapings at the Occupy protests. If you are contacted by a prospective client regarding California policies on recording police officers, it could be your chance to bring a test case in this area of California civil rights law.

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