Watching, and Recording, the Police

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Last month, a Salisbury woman was convicted in district court of resisting, delaying, or obstructing an officer. In a nutshell, the woman was on her front porch, videotaping a vehicle stop on the street, when an officer involved in the stop instructed her to go inside her house, apparently based on concerns about the safety and security of the scene. She refused, and was arrested. A lengthy local story about the case is here, together with an edited version of the video. The defendant has appealed to superior court, and I don’t intend to comment on the case itself. Plenty of other folks have done that, including the Salisbury Post and the Washington Examiner, if you’re interested.

I will say that the issue of citizens’ rights to observe and to record the police has been a bit of a hot topic nationally. Gizmodo has this piece on point; Reason magazine summarizes covers the issue here; the widely-read libertarian-leaning blog Instapundit has done a number of pieces on point, including this one; and this article from the Boston Globe discusses the issue in the context of several charges brought in Massachusetts, to cite just a few examples.

A few states have specific statutes making it a crime to record police officers who are performing their official duties. More often, people who record the police have been charged under states’ illegal surveillance statutes. Such charges may be plausible in states where the law requires the consent of all parties to record a conversation, depending in part on whether the surveillance laws of the particular state in question exempt conversations in which the participants have no expectation of privacy. (Most, but not all, state surveillance statutes apparently contain such an exemption.) An illegal surveillance charge probably wouldn’t work in North Carolina, though, for a few reasons. First, it’s only illegal to “intercept” oral communications when the communication is “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” G.S. 15A-286(17). I doubt that an officer’s interaction with a suspect in a public place is subject to the sort of privacy expectation required by the statute. Furthermore, we’re a so-called one party consent state. Under G.S. 15A-287, it is illegal to intercept an oral communication only absent “the consent of at least one party to the communication.” Since an observer is most likely to record the police when he believes that the police are being heavy-handed, the observer is likely to have the consent of the suspect — or at least, the suspect is likely to take that position after the fact.

So I tend to think that under state law, citizens can record pretty much any police encounter that they can observe. Even if there were more ambiguity in the law than I think there is, though, I would still advise officers to be very cautious about ordering people not to record them, and about arresting people for recording them or for failing to obey their command to stop recording. Officers have been sued on First Amendment grounds for such conduct. See, e.g., Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) (holding that the plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct” but that they had not established a deprivation of that right); Banks v. Gallagher, 2010 WL 1903597 (E.D. Pa. Mar. 18, 2010) (unpublished) (discussing First Amendment issue in detail, but ultimately finding that officers were protected by qualified immunity given the lack of settled law).

I’m sure that our courts would uphold some limit on where and how citizens can observe police. For example, a citizen who insisted on observing a SWAT team’s attempt to rescue a hostage by following the team’s commander around would surely be charged with, and convicted of, resist, delay and obstruct without much fuss. Exactly what those limits are, though, isn’t clear. If the Salisbury case works its way up the chain, perhaps it will shed some light on the issue.

8 comments on “Watching, and Recording, the Police

  1. In cases of security police should have the right to ask to terminate videotaping and if someone refuses its obstruction of justice. But normally I believe people should do it as often as possible so police officers will know they are being watched.

  2. I am a police officer, but more importantly I am a citizen of the United States. If you want to record me, fine. You have the right to do so. I work for you, and you have the right to make sure I am doing what the law tells me to do.

    Obviously, you can’t interfere with my investigation, cause an actual safety problem, etc. But observe, video tape, etc….all fine.

    I can’t believe the cops who would make such a BS arrest.

    • There needs to be more officers like yourself, that is of course assuming you practice what you say.

    • Officer,

      Visit YouTube and search the phrase, “Why cops fear shtf”. This is why we the people do not trust police officers and unless we know you; sorry.

      No more fear, respect is earned. The badge is not worth any more than the metal it is stamped from and I carry a 1911 that plugs at least the same size hole as any department issue sidearm, if not more. Remember the song, We’re not gonna take it; well, We’re not gonna take it, anymore!

      Tell your colleagues and superiors. We’ve been brutalized and beat down for too long and as free men, we refuse to live in a police state any longer! We only want to be left alone, to live our lives as free men and women. We will never take an offensive posture against the government or police, but we will defend ourselves; with force if need be, should we be assaulted by said entities.

      We will not give up our freedom; only in death will we surrender and our fate and that of the very Constitution that every officer swears to uphold and defend are inextricably tied.

  3. [...] According to one recent judicial opinion, Ickes v. Borough of Bedford (W.D. Pa. Dec. 3, 2010), "the issue of police officers arresting citizens for recording them in public has recently been brought to the forefront of the cultural Zeitgeist." From the “don’t taze me, bro” video to lesser known incidents, YouTube and other video content sharing sites are rife with examples of recorded videos of interactions between police and arrestee/detainees. Moreover, the “right” to record or film police officers has received much attention in the news media and the blogosphere. [...]

  4. Thanks for these links. This is a very interesting case because she was filming from her own property. This should be a right.

  5. I have a question.. It’s somewhat different from this but here goes: Can the police come on your property without your permission to do surveillance on someone that doesn’t live on your property, say a neighbor for example. I live in a rural community, and they have came on several occassions, really late at night causing my dogs to bark, and waking my children. When I tried to approach the trespassers, they ran and didn’t even try to identify themselves. I followed them and seen them get into an unmarked police car. I was just wanting to know if they can legally do this without permission. If anyone can help here it would be highly appreciated. Thanks.

  6. ” Safety and security of the scene” my eye…the film proved that the woman posed No interference whatsoever…the cop simply did not like being filmed, period. The woman was far away, not interfering and had every right to film. Just because a cop decides to interrupt his duties to stop a citizen exercising his/her rights does not mean the filmer interfered…it is the cops choice to choose not to ignore the filmer and violate rights to keep us from documenting their actions. Cops HATE being filmed because they so often abuse suspects and act illegally, and want no proof. Like shining a light on cockroaches, cops will resist any attempt to hold them accountable. Unless you are physically interfering by moving in too close to the point of causing the cop to be unable to do his duty, you have every right to film. As far as some distrrict court convict her, no suprise there…lower courts almost always side with cops, and when you read appeals court reversals. you wonder why lower court judges did not do the obvious right thing to begin with..justice is a sham when you have to go to an appeals court for obvious cases of police misconduct…the system is so rotten that judges and prosecutors, joined at the hip like Chang and Eng, know that few defendants can afford an appeal and that improper judgements often stand..we all know that prosecutors have no conscience, but judges should at least have some semblance of honor..

    Now that the law is settled federally, immunity will not be so easy for cops to get; a few stiff judgements from 1983 suits will perhaps convince cops to quit violating our rights to film them.

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