What to Do When Police Tell You to Stop Taking Photos, Video

A recent Gizmodo story, “Are Cameras the New Guns?,” created quite a stir in journalism circles recently. Gizmodo found that there appears to be an increase in the number of citizens arrested for filming abuse by police, or just police in action:

“In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

“Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

“The legal justification for arresting the ‘shooter’ rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where ‘no expectation of privacy exists’ (Illinois does not) but in practice this exception is not being recognized.”

I interviewed media attorneys Robb Harvey and Richard Goehler about this via e-mail. I have known Harvey for a couple of decades, dating back to when he represented my newsroom when I was news director. And I recently worked with Goehler on a Radio Television Digital News Association committee that wrote social media and blogging guidelines for newsrooms. You can read their edited responses below.

Al Tompkins: Are you seeing any new sensitivity by police to being photographed/videotaped?

Robb Harvey: The police have always been sensitive to accusations of wrongdoing or overreacting. I believe they are reacting to emerging technologies that allow millions of people to record events in real time, so we are likely to see more postings claiming misconduct and more efforts by police to prevent those postings.

The recent prosecutions mentioned in the Gizmodo article involved participants in the police action — persons being arrested or later charged. The video they have taken may be their best defense to the charges. Is the next step that law enforcement can prosecute recordings by bystanders? If that were the case, the widely disseminated video of the assault on Rodney King might never have seen the light of day.

Media organizations must remain vigilant and work to prevent the application of these laws in an unconstitutional way.

Richard Goehler: I would not say that I have seen any “new” sensitivity by law enforcement or firefighters here. In the past, I have heard about instances where police might confiscate or threaten to take a camera or recorder, but I would not call it a major newsgathering problem or interference.

I found the Gizmodo article very interesting. It seems to me that most of the cases highlighted in the article involved circumstances in which the videotaping or recording was of alleged abuse and/or improper conduct by the police. As a result, the police appeared more aggressive and more motivated to take action concerning the videotaping.

Often it appeared that the actions by law enforcement were in direct retaliation for the videotaping that had taken place. It was also interesting that these cases all took place in states or jurisdictions that have “two-party consent” statutes that let police officers make the argument that they had not consented to the videotaping.

Another interesting point about the cases in the article is that none of them involved traditional/mainstream media companies/reporters/videographers in their news gathering efforts. My sense is that law enforcement, even in a “two-party consent” state or jurisdiction, would be very cautious about trying to pursue claims like this against the media because doing so would surely bring a huge amount of attention and publicity with plenty of amicus support from other media organizations and journalism groups like theReporters Committee for Freedom of the Press and theSociety of Professional Journalists.

What legal advice would you give to a journalist who wants to record video of an officer in action?

If at the scene, a police officer orders that you move or position yourself in another place so as not to interfere, be prudent and use some good judgment. If you think you are being picked on and these orders are some type of retaliation by the officer, keep your head about you and continue to roll the tape while the officer directs you to another place, but try to keep the situation from escalating to the point where the officer writes you up for interfering with official police business. We may ultimately beat that ticket on a number of grounds, but it will likely mean lawyer time and effort with court appearances, etc.

The next thing I would recommend would be whenever possible, make sure that your news gathering efforts are open, visible and on public property. This will give you the best possible legal position or defense to any claim by a police officer for invasion of privacy (which truly is a merit-less claim), and/or any claim for illegal eavesdropping/recording under the most current state or federal statutes. Using cameras and other equipment with station logos, and having a marked news vehicle in the vicinity, will help in building a successful defense.

Harvey: From my observation, some police officers can be, shall we say, hyper-vigilant about the area around a crime investigation and can be quick to leap to accusations of “obstruction of justice” or “interference” with law enforcement.

Journalists should take care to … observe the “perimeter” established by the police. Identify yourselves as members of the media. If you are where you have a right to be, and are not violating someone’s privacy interests or some statute or regulation banning coverage of undercover officers, then you should have sound grounds to challenge efforts to restrict your reporting.

Sometimes a journalist will receive an order from a police officer that the journalist believes the officer lacks the authority to issue. The officer can still make an arrest or issue a citation — so exercise good judgment and take it up with the officer’s superior when things calm down.

Would your advice be any different for a person who is not working for a news department, but might be acting as a sort of citizen journalist?

Harvey: The law in the United States has not kept up with the role of citizen journalists. Many states will not even recognize them as news gatherers, or accord them the constitutional privileges and legal protections that journalists have. I would tell citizen journalists not to expect, or insist upon, special treatment.

Goehler: I don’t think my legal advice is really any different here. I think that whoever is doing the information gathering — whether it be a news reporter, a photographer, a citizen journalist or the passerby on the street — should be careful not to interfere with the activity of the police and should, whenever possible, be visible and on public property at all times. That will provide the person with the best possible legal position or defense to any of the claims discussed above.

I also think that even with today’s technology, it would be difficult for a police officer to make some type of claim that the recording done by a typical hand-held device was somehow an improper “surreptitious” or secret recording when it is done in the manner recommended above.

I do think, though, that there are some practical tips for citizen journalists who find themselves in situations like those described in the Gizmodo article. When possible, I think those individuals should seek out the support of traditional media organizations and groups like the Reporters Committee and SPJ. These groups can help provide valuable legal amicus support and/or public support through articles, editorials and publicity about these legitimate and important First Amendment activities. (And again, we need to make sure that our media clients are being vigilant as well to these situations.)


24 responses to “What to Do When Police Tell You to Stop Taking Photos, Video

  • John Doe

    If they having nothing to hide…

  • rogeres

    If taking a picture in a two party state is illegal unless both parties consent, what about the cameras on the dashboard of police cars. How can the police have it both ways? It is okay for them to record you without your consent, but it is illegal for you to record them. This is a major destruction of civil and first amendment rights.

  • Freddy

    i think this is a big load of b.s the police just don’t like the idea of having to control themselves. They feel threatened by the idea of being video taped because this could mean that they are not almighty, and they are not above the law themselves. I want to know if they ask for consent when they put videos of suspects, and criminals on “COPS” or other shows. Since when does wearing a badge give you the right to be a bully,and being able to stop someone from getting evidence that could bring media attention and them losing their jobs. I just hate when people feel they are better than others because of a job title, sorry to tell you but your not special officer.

  • ddrhazy

    It’s my opinion that the 1st amendment is very straightforward with regards to journalistic rights. Freedom of the “press” refers to anyone who acts in a journalistic capacity, whether they do it for a company or as a private citizen. The minute you pick up a camera you are considered pressed and are afforded the same protection under the 1st amendment.

    Mr. Harvey’s “advice” is a little confusing. In a real world application, yes, citizen journalists have less protection not only because police and judges expect members of the press to be from highly recognized companies like New York Times. Also the fact that an individual has fewer resources than a newspaper to fight an unconstitutional arrest. The question is not whether you have more tools to fight a hypothetical “arrest for photography” but whether you are protected under the 1st amendment. The constitution does not make a distinction of one citizen from another and afford blanket protection amongst all. Your advice should be the same with the caveat that as an individual you will be facing more problems than news reporters, but that is a decision for the individual to make, not you.

  • Enzo

    So the police cannot use their dashcam recording of you since you did not consent. Therefore you can sue the police in these states for illegal wiretapping.

  • victimschoice

    F*** the police. I’m gonna start recording them just for fun. Maybe I can get some sweet shots of them downing doughnuts.

  • Sam

    I just don’t understand. The government literally has millions of cameras to survey it’s citizens, but we can’t keep a watchful eye on the government? If police unions and special investigation units really cared about public safety, they would address the issues these videos raise, not the fact that videos are being made.

    We live in crooked times, and things will not get better.

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  • Colin Dean

    Someone should make a “YOU ARE BEING RECORDED” t-shirt and sell them at rallies/protests/riots/etc.

  • Mayday

    Citizen (NOT Civilian): “Excuse me officer do you consent to me filming your ill behavior and police brutality?”

    Police (Protector of Citizen’s Rights): *laughs* “TURN THE CAMERA OFF!”

    Citizen (NOT Civilian): “Then I do not consent to your unlawful arrest and pronounce a citizen’s arrest on YOU!”

    *Scuffle ensues*

    To Be Continued….

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    […] What to Do When Police Tell You to Stop Taking Photos, Video A recent Gizmodo story, “Are Cameras the New Guns?,” created quite a stir in journalism circles recently. […] […]

  • anon

    BS! I don’t wanna be recorded everywhere with your damn secruity cameras in the corner then!

  • jonyork

    Why does this ban on video-taping ‘law’ make me feel less safe?

    Maybe because these guys don’t want to be accountable to anyone?

    Good government has a fearful respect for the people, bad government is when the people are afraid.

  • Benin

    Maybe we need a ‘record the police day’ where more than one person records their actions. What are they going to do then—call all their units to arrest everyone?

  • Dertive

    I keep hoping to see this – a cop tells someone in a crowd watching something going down to stop filming, and 100 people pull out their phones and start recording.

  • Tom Baker

    I can’t imagine the ACLU hasn’t gotten involved or some journalist filing a class action suit. This is crazy.

  • Tyler

    I’d love to hear what a real police officer has to say about it…and a lawyer while we’re at it

    • TigerLily

      I have a retired lawyer friend who used to be a cop. He got out of the profession because they relaxed the standards due to affirmative action, which made it difficult for him to be promoted. So he quit and became a trial lawyer. He believes it’s the relaxed standards that have gotten us to where we are today.

  • Gutless Coward

    What I can’t help thinking about is how much “citizen filming” helps the police as well. Obviously not so much when pointed at them, but rather when pointed at the scene of a crime in progress, such as the case this past year with a high school beating/murder, filmed by multiple cellphones which resulted in the arrest of the perpetrators.

    Of course the reverse can be said of the recent incident where an officer used his gun on person, claiming he thought it was his Tazer, which was caught on numerous cell-phones and plastered across YouTube. Which will hopefully, in court, can be taken to evidence that will lead a jury to a fair conclusion, but also might only confuse matters.

  • Good Worker

    Police abuse of power, or have we as citizens gone over the line?

  • TigerLily

    Great article. My only objection is the idea that journalists have more “power” than citizens. Though I understand that citizens may not have comparable resources to defend themselves and might not be taken as seriously by police as main stream reporters. I’m putting this blog on my radar.

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