Do You Have the Right To Record Interactions With Police?

Police activity is under scrutiny in many areas. With the advent of smartphones, the public started using their cell phones to record police interactions. In response, law enforcement agencies added dash cameras and body cameras to record their actions. In the courtroom, video recordings can be critical evidence.

If you use your cell phone to record police activity, you should know your rights and your responsibilities. This is regardless of whether it’s your own encounter or someone else’s.

This article provides general information about your rights when recording the police. Laws vary by state and jurisdiction, and complex legal questions often arise. For advice about your specific situation, consult with a qualified attorney in your area.

Your Constitutional Rights

The First Amendment protects your right to record police activity through its guarantees of free speech, a free press, and freedom of assembly. It doesn’t explicitly state a right to record law enforcement, but this constitutional protection has been defined through federal case law and the precedents set by federal appellate court rulings. 

The founding fathers could not foresee today’s technology, which puts recording devices in the hands of so many people. However, they mandated the protection of the freedom of speech in the First Amendment to the Constitution.

If law enforcement or other government officials violate this right, you can address it federal court. A successful civil rights lawsuit could stop the unlawful restriction on your speech, award you damages (money), or both.

Understanding What the Law Allows 

As a general rule, you can record police activity if you are lawfully present:

• In a public place (such as a park or city street)
• At a publicly accessible place (like a grocery store or other business open to the public)
• On your own private property

Being ‘lawfully present’ means you have a legal right to be where you are. If you’re trespassing or in a restricted area, you may not have the right to record there.

Your Responsibilities and Legal Limitations

While recording police is generally seen as protected speech, your right to record does not allow you to jeopardize anyone’s safety (including your own) or interfere with police work. To stay within legal bounds, it’s essential to:

• Keep your distance
• Respect secured areas (stay behind the “do not cross” tape)
• Obey lawful orders
• Avoid interfering with police activities

A lawful order might be “step back 20 feet.” An order to stop recording simply because the officer doesn’t want to be filmed is likely not lawful. FindLaw’s Legal Tips for Recording offers more details on how to lawfully record police activity.

State Laws on Recording Law Enforcement Officers

Each state has its own constitution and laws. Under the Supremacy Clause of the Constitution, federal law prevails over state law when they conflict. Federal constitutional rights act as a minimum, but states can provide more protection.

This means a state cannot prohibit you from recording police, as that would fall below the federal constitutional floor. Each jurisdiction can build on its protections by offering additional coverage. For instance, a state might:

• Provide stronger penalties for officers who unlawfully interfere with recording
• Explicitly protect recording rights in its state constitution
• Create a presumption that recording police is always lawful unless specific interference is proven
• Require police departments to have policies protecting the public’s right to record

In practice, some states offer protections equal to the federal right to record police, while others provide greater protections. These state-level protections may come from state constitutions, statutes, or court decisions.

State courts may also have additional options available for enforcing your right to record beyond what federal courts offer. Depending on the state, remedies may include: stopping the unlawful restriction on recording, declaring restrictions unconstitutional, awarding monetary damages, awarding attorney’s fees, and requiring official records to be corrected.

One-Party vs. Two-Party Consent Laws

When it comes to balancing freedom of speech with the right to privacy, federal law follows a “one-party consent” standard. This means one party must be aware of and consent to the recording, and that person can be the recorder.

State laws on consent can either follow the federal standard or provide more protection. Most states follow the federal standard, but these fourteen states currently require two-party or all-party consent for a recording to be lawful:

• California
• Connecticut
• Delaware
• Florida
• Illinois
• Maryland
• Massachusetts
• Michigan
• Montana
• Nevada
• New Hampshire
• Oregon
• Pennsylvania
• Washington

As state laws are subject to change, be sure to confirm the laws in the locale where you plan to film.

Other Considerations: Audio vs. Video Recording 

Consent laws generally allow video recording of police officers doing their jobs in public. Audio recordings of police activity are often legal, but they can raise consent and privacy concerns if made in private places or without the subject’s knowledge. Audio recordings may be subject to greater scrutiny under wiretap laws.

What Law Enforcement Can and Cannot Do About Being Recorded

While recording police activity may be protected free speech, that doesn’t mean the police will not take notice. If you record a police encounter as a private citizen, the following situations may present themselves.

Can a Police Officer Ask You To Stop Recording?

Police action can almost always be recorded. A law enforcement officer may request that you stop recording, but you are not necessarily required to comply.

Police can lawfully restrict recording only when the person recording is:

• Not lawfully present
• Interfering with police work
• Violating privacy laws

You must follow a lawful order supported by safety or legal justification. Recording in a public place from a legal location without causing trouble is usually protected. This holds true even if officers don’t want to be recorded. 

Can Law Enforcement Take Your Device or Delete Your Recording?

Even if you film police while they are performing their official duties out in public, an officer could still potentially be justified in taking your cell phone. The police can only take your recording device under limited circumstances without violating your First Amendment rights.

In general, law enforcement may seize your device only with probable cause that it contains evidence of a crime. The phone itself might be seized during a lawful arrest, but accessing its contents typically requires a warrant.

Password-protecting your phone adds a layer of security. The police require a search warrant to obtain your password to access the recording.

Your Potential Legal Consequences

Video recordings of police actions boost the agency’s accountability. This must be balanced with safety and obstruction-of-justice issues. If you decide to film police activity, you run the risk of being arrested, even if you’ve taken the time to ensure your activity is lawful. 

If you are arrested for lawfully recording police, the arrest itself may violate your civil rights. You may have legal remedies available through a civil rights lawsuit. However, whether the arrest is lawful or not, you will have to go through the legal process to clear your name. 

Besides potential criminal action, you may be subject to a civil lawsuit. Police officers on duty in public may not have a reasonable expectation of privacy, but other people you record might. This can apply to people in private settings and could affect the legality of your recording.

Questions About Recording the Police? Contact an Attorney

If the police arrest you for recording, take your device, or delete your recording, it’s time for legal help. The police may have violated your federal and state rights. Speaking with either a civil rights attorney or a criminal defense attorney can help you better understand your legal position. A lawyer will examine your case, explain your options, and stand with you in court.