Texas Confederation of Clubs and Independents
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Can a citizen record the police publicly performing their duties?

It is now settled law in the U.S. that citizens CAN photograph or video record police officers publicly performing their duties. In Glik v. Cuniffe, et al, 655 F3d n78, 82-83 (1st Cir. 2011), the Court reasoned that: 

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting Athe free discussion of governmental affairs.@ (Citation omitted). Moreover, as the Court has noted, freedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’ (Citations omitted). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties (Citations omitted). 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.

Just because you can doesn’t mean there won’t be reprisals from the police if you do record. There are now more cell phones in use in the United States than there are people! Since most of the newer cell phones have high resolution cameras and video recording capability, there are more and more videos of improper police conduct being posted on the internet and YouTube. More and more officers have been terminated or prosecuted due to their conduct while on duty. Thus, just because you can record police officers performing their duties doesn’t mean you won’t be hassled or arrested for doing so.

One writer (Steve Silverman) has proposed 7 Rules for Recording Police.  See below for a summary of the rules.

 

 

7 Rules for Recording Police:  

1.         Know the law wherever you are

Most states allow recording of police. There are a few states where you can only record audio if both parties are aware and consent. In Texas, it is legal to record a conversation as long as ONE of the parties is aware of the recording. Thus, if you are recording a conversation, you are aware of the recording and that is legal. While it appears that such restrictions in other states have been ruled on in recent cases that explicitly allow publicly recording the police, some jurisdictions may attempt to enforce such provision for purpose of harassment.

2.         Don’t secretly record police

Strictly from a practical perspective, I suggest one openly record police if possible. This will limit any legal proceedings against you and present a good record if you are arrested. This may not be practical if you are recording from a distance unless the police see you and approach. 

 

3.         Respond to police if they engage you

I suggest being courteous but firm if the police approach and ask what you are doing. You can say, "Officer, I’m not interfering. I am exercising my First Amendment Rights." You are being documented and recorded offsite.  Also, if the police tell you that you can’t record because you are not a journalist, politely let them know that the First Amendment applies to all citizens. Also, you may be asked to stand back. You can’t interfere with their work. However, ask what distance is acceptable or appropriate. If you believe you are located so as not to interfere with their work, you can say, "Officer, I have a right to be here. I’m filming for documentation purposes and not interfering with your work." 

4.         Don’t share your video with police

There are instances where a citizen recorded video of police brutality which she posted to the internet. She was arrested for wiretapping and the charges were ultimately dropped. You can upload your video to YouTube anonymously. This occurred in New York and it went viral. The officer was fired and the victim recovered an award.  

Remember Bill's advice he gave in the cell phone article - Privacy and your Cell Phone? 

5.         Prepare to be arrested

The police may tell you to shut it off or be arrested. You have a choice-shut it off or continue rolling and be arrested. If you shut it off, make sure you say you are doing so under protest. If you keep recording, brace for arrest. Do NOT speak to the police or answer their questions. Remain calm and continue recording as long as you can.

6.         Master your technology

There are sites where you can upload or live stream to another site. This preserves your recording offsite even though the police may lose your card or accidently delete the recording. Also, be sure your cell phone is password protected. 

7.         Don’t point your camera like a gun

Some commentators believe that taking an aggressive stance while recording may be perceived by the police as hostile or confrontational. Also, I suggest keeping your hands in plain site and if approached by the police, hold the camera firmly and don’t reach in your pocket. The police may believe you are reaching for a gun.  There are many inexpensive video recorders that can be mounted on a helmet or on your bike. I suggest investing in one if you are subject to being pulled over frequently. Keep it recording as long as you can.


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