Like it or not, we live in a country where the average citizen’s word is practically worthless if contradicted by the words of a police officer. As a consequence of this reality, the majority of police misconduct that occurs daily goes unreported and undetected by Courts and prosecutors. The misuse of physical force is routinely blamed on the suspect by police officers. The use of coercive investigative techniques are routinely denied by police officers. The illegal detention of citizens is a daily occurrence, sustained by the exaggerations and misrepresentation of police officers. Without a video recording of what actually occurred, the typical citizen, once arrested, is often powerless in a court of law when faced with the lies and distortions perpetrated by police officers. One partial solution to this problem is the citizen who is willing to video record police officers engaged in their daily activities.
Believe it or not, a legal battle has been raging over whether American’s have the right to make video recordings of police officers as they exercise their powers in public places. The citizen video takers and their supporters insist that the recording of police activities in public is citizen journalism protected by the First Amendment. But police agencies across the country have often insisted it is not — and have been arresting the video makers. Court rulings over the last few months appear to be turning decisively in favor of the right to take video of the police as they engage in the public discharge of their duties.
THE MOST POWERFUL WEAPON AGAINST POLICE MISCONDUCT — VIDEO RECORDING POLICE ACTIVITY — IS GETTING SUPPORT FROM THE COURTS
In August 2011, the United States First Circuit Court of Appeals --the highest federal court for New England just below the U.S. Supreme Court -- reached a crucial decision allowing citizens to videotape police officers in a public space. The case involved citizen Simon Glik, a passerby on the Boston Common. Mr. Glik used his cell phone to video record Boston police officers who were punching a man. People surrounding the scene were saying, "You're hurting him." Glik never interfered with the police officers' actions, but recorded the entire incident. The police officers arrested Glik and charged him with violating a wiretap statute that prohibits secret recording. While all criminal charges were dismissed by prosecutors for lack of merit, Mr. Glik joined forces with the ACLU and filed a civil rights law suit to prevent a similar incident from occurring in the future.
The First Circuit Court of Appeals ruled that "Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs." The Court also found that video recording public officials is not limited to the press. "Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw," the Court continued. "The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status." Read the entire court opinion here.
Similarly, in May 2012, the United States Seventh Circuit Court of Appeals barred the use of Illinois’ wiretapping statute to arrest citizens who recorded police activities in public. That statute, if applied, would impose sentences of up to 15 years in prison for those who record audio of police conversations without their consent. The ACLU challenged the statute because it planned to make audiovisual recordings in a “police accountability program.” The group sought a declaratory judgment that the statute was unconstitutional as applied to the ACLU’s planned activities and an injunction barring the Cook County State’s Attorney from enforcing the statute against the ACLU. The injunction was denied by the trial court, and the ACLU appealed. The State’s Attorney argued that recording what police say while performing their public duties is wholly unprotected by the First Amendment. The Seventh Circuit Court of Appeals ruled that, “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.” Read the entire court opinion here.
The United States Department of Justice has also taken the position that citizen recording of public police activities is constitutionally protected activity and has, in effect, advised at least one police department to stop arresting individuals who merely record police activities in public. In a letter to the Baltimore Police Department, the Department of Justice stated, “Policies should affirmatively set forth the contours of individuals’ First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.” The letter also stated, “....policies should affirmatively state that individuals have a First Amendment right to record police officers and include examples of the places where individuals can lawfully record police activity and the types of activity that can be recorded.” Read the entire Department of Justice Letter here.
Despite these clear legal precedents, citizens who choose to record police activity in public need to understand that there is a risk of being arrested. The bottom line is that many police officers do not want a truthful and accurate recording of their conduct. Police prefer the present system, where their word alone will be believed by the courts and prosecutors.
State law varies greatly and citizen recorders must know the law in their state and understand the risk of arrest. Video recorders must not interfere with police investigations and should record activities from a location that is a safe distance from the incident being recorded. This blog is meant as a general introduction for citizen journalists to the state of the law concerning electronic recording of police activities in public and its implications. It does not take the place of specific legal advice from a lawyer in your state.
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