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Tips on Recording Police From a Federal Court Case

By Joseph Fawbush, Esq. | Last updated on

It was two years ago that a bystander recorded George Floyd's murder at the hands of Minneapolis police officer Derek Chauvin. The incident sparked national outrage and led to mass protests across the country. Since then, more people than ever before take out their phones when they see an arrest or interaction with police that looks like it could escalate.

One such individual is YouTuber Albert Jerome Bustillos — also known as "Stray Dog the Exposer," who labels himself a citizen journalist and often records police interactions with the public. Bustillos ended up in handcuffs in 2019, however, when he recorded Carlsbad, New Mexico, police officers who were attempting to calm down a woman who was mentally distressed on a public street.

Interfering With an Investigation or Exercising Rights?

Police officers on the scene were attempting to calm down the woman, who was in traffic and in danger. As the officers were speaking with the woman, Bustillos began recording. The woman then ran away from officers and Bustillos, shouting "pedophile."

The officers caught up to her and handcuffed her to prevent her from running back into traffic. As this was occurring she said, “There's people scaring me, it's wrong ... it's scaring me ... I already got beat up" and pointed at Bustillos.

An Argument Over a 'Reasonable, Articulable Suspicion'

Police requested that Bustillos back away, believing him to be scaring the woman. Bustillos refused, and then refused to hand over identification when requested.

The police officer asked Bustillos "if he wanted to go to jail," to which Bustillos responded that the officer did not have a "reasonable, articulable suspicion" that Bustillos had committed a crime. Officer Daniel Vasquez then placed Bustillos in handcuffs, at which point Bustillos handed over his ID. Vasquez then let Bustillos go after being in handcuffs for around eight minutes.

Bustillos filed a lawsuit against the Carlsbad police department, alleging constitutional violations of his First and Fourth Amendments, as well as false arrest. The case eventually made its way to the 10th U.S. Circuit Court of Appeals.

Misunderstanding the Law

If you are on public property, such as a street, you generally have the right to record on-duty police. However, this is not the end of the story. You cannot interfere with a police investigation. You can only openly record it if it is in public. If you are trespassing, the property owner can ask you to leave.

In New Mexico, resisting or abusing a police officer who is legally doing their job, including refusing to obey lawful police commands, is a misdemeanor. So is concealing your name or identity to obstruct, intimidate, hinder, or interrupt any police or public officer who is doing their duty.

Bustillos was correct in stating that the officer needed a "reasonable, articulable suspicion" to arrest him without a warrant. In this case, however, the 10th Circuit held that the officer did have reason to believe Bustillos had committed crimes — namely, interfering with a police investigation and concealing his identity. The district court dismissed Bustillos' claims for this reason, and the 10th Circuit upheld that decision earlier this month.

The Law Can Be Complicated — Get Help

Fortunately, in this case, no one was hurt or charged with a crime. But it is easy to imagine this encounter escalating unnecessarily. To everyone's credit on the scene, it did not.

There are, however, several takeaways from this case that might help you if you find yourself in a situation where recording police seems warranted. These tips include:

  • Keep a safe distance away.
  • Tell police you are recording before you start. Communicate this clearly and calmly. Do not make quick movements to your pocket (police might think you are reaching for a gun).
  • Obey lawful police commands, including requests to step back if necessary.
  • If police handcuff you (whether they are right to or not) do not resist arrest. You'll have the chance to fight an unlawful arrest in court.

If you are a citizen journalist and actively looking to record police, it might help to speak to a criminal defense attorney beforehand to ensure you know your rights. Even then, however, situations can get complicated quickly.

Bring an Attorney With You

If you want to bring an attorney with you, you could try the mobile app TurnSignl, which was created partially in response to George Floyd's murder and allows you to have a licensed attorney present on-demand when you are interacting with police. In the heat of the moment, abstract legal principles are hard to apply, even if, like Bustillos, you have a general grasp of your legal rights. TurnSignl allows you to have an objective attorney who can help de-escalate the situation and give you information on your rights in real time.

Whether you find yourself unexpectedly in a situation where recording an arrest is appropriate, or you are a citizen journalist looking for police reform, the most important thing is to make the situation as safe as possible for everyone involved.

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