Recording the Police: When Your Constitutional Protections Mean Nothing

by Nomad

You may not know this but you really do have a constitutionally-protected right that is routinely ignored by law enforcement. And worse than that, there's not a lot you can do about it.

Civil liberties attorneys will tell you straight up that you have a right to photograph and videotape any public official doing their jobs when plainly visible in public spaces. And yes, that includes on-duty police officers.

The Interference Limitation

The American Civil Liberties Union (ACLU) adds that it is perfectly legal and that right includes recording the "outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties."

Delroy Burton, chairman of D.C.’s Metropolitan Police Union and a 21-year veteran on the force joins that chorus:

As a basic principle, we can’t tell you to stop recording. If you’re standing across the street videotaping, and I’m in a public place, carrying out my public functions, [then] I’m subject to recording, and there’s nothing legally the police officer can do to stop you from recording.”

There are some important limitations, of course.
In the course of recording, you do not have the right to put your life or the lives of others in danger. You cannot break the law in order to record, such as trespassing or disturbing a crime scene. You should not interfere with officers attempting to keep the peace in, for example, a riot or civil disturbance.

The recording should be done in a transparent manner, and not in a surreptitious or covert way. If you record public servants without their knowledge, you could be accused of - get this- eavesdropping. Privacy laws protect the police too.

As Burton puts it succinctly "Record from a distance, stay out of the scene." As long as you are not directly involved, nothing more than a citizen witness, the police have no right to tell you to stop recording.

That's the theory, anyway.

Most important of these limitations to consider is this:

You do not have the right to interfere with the police.

And therein lies the real problem.

Who gets to define what is and what is not interference?

Your Rights at That Moment

The bottom line is: while the events are occurring, it is the law enforcement officers whose authority must be obeyed. The courts may rule in your favor later (but maybe not.)

Even in court, the testimony of the authorities will always trump a civilian's. On the scene, it is simply not possible or smart to argue, unless you are prepared to take risk to your liberty or even your health.

That's the reality.

During the Occupy Wall Street demonstrations, , as the UK Guardian put it, American law enforcement revealed itself as "an out-of-control and aggressive organization that routinely acted beyond its powers."

According to an eight-month study (pdf), researchers at the law schools of NYU and Fordham university catalogued a pattern of "unnecessarily aggressive force, obstructing press freedoms and making arbitrary and baseless arrests."

Sarah Knuckey, a professor of law at NYU, said: "All the case studies we collected show the police are violating basic rights consistently, and the level of impunity is shocking".

So, just because you have the constitutional right to record it doesn't mean these rights are recognized at the time they are most important. The constitution also gives its citizens the right to peaceful assembly, the right of free speech, and to petition grievances the government.

All of these were ignored during the OWS protests. When it comes to the less recognized right to record, well, good luck with that.

Confiscation and the 4th Amendment
Furthermore, as Burton mentioned, law enforcement has no legal right to confiscate your recording devices without due process. The 4th Amendment, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, ensures your right to privacy.

Often times police can demand the phone and its video as police evidence. However, legally speaking, seizure of personal property requires a warrant issued by a judge.
The Civil Liberties Defense Center (CLDC) explains the important of the 4th Amendment.

This protects your right to record police by making it illegal for a law enforcement officer to “unreasonably” search your recording device or confiscate it. .... police do not have the right to view the contents of your cellphone or other recording device without your consent or a warrant.

As we have seen, what they are not allowed to do and what they actually do may not be the same. So the CLDC advises that if you wish to record using your phone, to be sure that it is password protected and that video be immediately uploaded in case your phone is unlawfully seized or damaged by police.

As the ACLU explains, despite these constitutional protections well-established by the courts, things are not what they seem:

"there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply."

Us and Them

As Radley Balko for Reason Magazine notes, technology such as cell phones, miniature cameras, and devices that wirelessly connect to video-sharing sites such as YouTube and LiveLeak allow more and more scrutiny of law enforcement officials.
Has this made police more accountable? In some cities, perhaps. But it has also caused a insidious kind of "us" against "them" approach to law enforcement.

The police have responded by misapplying "decades-old wiretapping statutes" combined with broadly-written laws against obstructing or interfering with law enforcement, to arrest people who are recording them.

The use of laws against wiretapping seems ridiculously inappropriate, especially a police officer in a public setting shouldn't have any expectations of privacy. (It's the same argument we have heard used against citizens: What do they have to fear if they are following the law?)

Wiretapping may sound silly but the idea here is that the wiretapping law requires consent before recording.

One source explains:

Wiretap statutes are generally classified as one-party or as two-party. One-party statutes require only one-party to consent to the recording, which can be the person recording. Two-party, or all-party, statutes require the parties to the conversation, without exception, to consent to the recording. In a two-party state, the person who is recording can be arrested when the police do not consent to a recording of themselves

It is, as you can understand, a wonderful way to prevent recording since a police officer in breach of code will probably not be willing to consent to being recorded. However, we are living in an age in which is perfectly legal for employers to track Web surfing, emailing and other activities by employees using company computers and mobile devices without consent.

Aren't the police employees of the state, servants of the people? They are paid through public funds so why should there be any more of an expectation of privacy?

On the other hand we also live in the age of NSA snooping when everybody is potentially a victim of wiretapping. The scale of the illegality somehow makes that more permissible.

The charge of wiretapping- even misused in this way- is a serious one. It is a felony and if convicted, which has actually happened, the penalties can be serious.
Keep in mind again, this can happen in spite of the right to record being constitutionally protected.

Making Matters Worse

State legislatures, Balko says, have largely neglected the issue. When the problem is addressed, the politicians would generally prefer to side with law enforcement rather than risk looking soft on crime.

For example, in Illinois, earlier this year, the state legislature incited public outrage by attempting to revive an eavesdropping law to thwart the recording of on-duty police. It was a law that the Supreme Court of Illinois struck down earlier in the year. One reason the law was struck off was -you guessed it- because it prohibited citizens from recording public interactions with police which it considered- like so many other courts before it- a violation of constitutional principles and individual freedoms.

And Illinois is not alone in this misguided attempt. Florida, Maryland, Massachusetts, New Jersey and Pennsylvania have all made similar efforts on a state level to outlaw recording of police.

Balko writes:

The result is a legal mess of outdated, loosely interpreted statutes and piecemeal court opinions that leave both cops and citizens unsure of when recording becomes a crime.

The Unblinking Eye

It is a subject that really cannot be ignored. It's going nowhere.

As digital technology becomes smaller and more democratized, citizens have become the public eye, recording events involving police conduct that had previously been hidden. Things that were suspected, mere allegations from a suspected criminal, have been shown graphically to be true.
Recording the police provides a critical check and balance.

As the ACLU points out:

It creates an independent record of what took place in a particular incident, free from accusations of bias, lying or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records.

Admittedly, as the videos regarding Planned Parenthood demonstrate, photographing and videotaping is not always an objective art. Words and acts taken out of context can be misleading They may not tell the whole story or they can very well paint a false picture of what actually happened.

Still, there's been abundant evidence to prove that law enforcement officers should not be the sole and irrefutable witness.
At the very least, the authorities should be held accountable to the public, to whom they are supposed to serve and protect.

Support of the Courts

Legally, the case for protection is well-established by the courts. In the court, civil liberties groups have been very successful in a host of cases.

A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police/officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.

The question, so far, has not reached the Supreme Court. Given the record of this court, some civil libertarians see cause for concern.
Yet it is difficult to see how the high court could overturn the numerous ruling by lower court of appeals' decisions.

The First Circuit (with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) the Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin), the Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington) and the Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia) have each, in separate cases, ruled in favor of the constitutional protections.

Public scrutiny by mildly techno-savvy citizens is here to stay. Wiretapping and eavesdropping laws simply delay the inevitable, allowing the intimidation and arrest of law-abiding citizens to continue, clearly in violation of their civil rights.

That message has clearly not reached all levels of law enforcement. And until that happens, violations will occur. Until every last police department is trained and re-fitted to respect the citizen's right to be a witness and to record, then there will be violations to your constitutional rights.

On the ground, there is not much you can do about. In the courts, provided you can afford legal representation, you have the time and money, then it may be a different matter.

Technology and the Framework of Accountability

The brave new world of the technology-based public scrutiny has revealed an ugly side of law enforcement. Abuse of power and attempts to intimidate anybody who reveals it.

That's a side that doesn't give a damn about your constitutional protections.

Unfortunately, as recent high-profile cases have shown, the scrutiny has justified the public fears that in too many cases, law enforcement is out of control, especially with regards to minorities.

From now on, police departments must assume they are being recorded at all times when they are dealing with the public. It's something they are going to have to become accustomed to or leave law enforcement.

Self-policing of the police alone has proved ineffective.but Ironically the same technology offers one solution. Body cams worn by police has been hailed as the fool-proof third party observer. Bloomberg noted in January that such devices have been effective in lowering complaints.

Even lawyers with the American Civil Liberties Union (ACLU)—who typically oppose government surveillance—have spoken out in favor. One recent ACLU report calls them "a win for all."

However, the ACLU noted that there is one factor that cannot be ignored.

These cameras cannot depend on voluntary compliance alone. There has to be "a framework of strong policies to ensure they protect the public without becoming yet another system for routine surveillance."

"Without such a framework, their accountability benefits would not exceed their privacy risks."

Look at this way. If a officer can escape punishment for using undue force even when it led to the death of an innocent citizen, and if grand juries refuse to hold the police accountable even with strong evidence of wrong-doing, then what hope is there if an officer refuses to turn on his body cam, or "accidentally" erases footage?

It's a question of accountability and body cams will not improve that factor without some better system in place.

Beyond Public Trust

In theory, the laws to ensure accountability are already in place. Police who do not abide by the constitutional protections are taking a big risk.
Not simply with the public trust.
Not simply with race relations.

The Federal law, U.S. Code § 242 introduces liability for depriving anybody of their constitutional rights. This law refers to acts done under "the color of the law" meaning the appearance of legal power to act but which may operate in violation of law.

That's exactly what is taking place when the federal courts say one thing and local law enforcement ignores it.

This law indeed covers

"acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties.

This specifically refers to "police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials."

When an officer claims he has the right to stop you from recording him/her (again, so long as you follow the rules) and when an officer claims your phone or camera, then that officer is in violation of the Section 242 of Title 18 of the Federal Civil Rights Statutes.

Laws in themselves do not mean anything unless they are both enforceable and enforced. It is up to the federal government through the Justice Department to crack down on civil rights violators within law enforcement. It is up to legislators in states to find the necessary balance between law enforcement and civil rights and to certainly not add to the problem.

Ultimately the Supreme Court may be called upon to rule definitively on the matter in order to establish a clear unshifting rule for all police departments and for the entire country.

Until then, if you decide to do your civic duty by holding public servants accountable, you are taking a risk and, despite your constitutional rights, despite what the court have said repeatedly, you should expect intimidation, arrest and possibly worse.

And there's very little the average person can do about it.