Can I Record the Police on my Phone?

In the days since a private citizen’s capture on video of the Los Angeles Police Department beating Rodney King in 1991 led to a national uproar against police brutality, technology developments have made this sort of citizen journalism much more possible than it was in the years before the advent of the camera phone. Videos of police interactions with citizens surface daily in efforts to protect citizen rights and hold the police accountable. Many go viral. The NAACP sponsors an initiative that encourages regular citizens to tape police conduct and send it to the organization’s website.

However, police have been fighting back. They use wiretapping and eavesdropping laws to charge individuals that record them without their consent. And in cases where they don’t charge people, they often physically restrain, detain and prevent people from recording their civilian interactions. This implicates that person’s First and Fourth Amendment rights.

Some states have wiretapping and eavesdropping laws that require consent from both parties involved.

North Carolina, however, has a “one-party consent” wiretapping law. This means that if you record something with audio, you either need to be a party to the conversation (i.e., be the one with whom the police are interacting) or get consent from one other person in the recording. Secret recordings are not protected—recording people without their knowledge when you’re not party to the exchange—but in the context of a person visibly holding their phone up to record a public police encounter, this is not usually an issue.

Wiretapping convictions can carry heavy penalties. In North Carolina wiretapping is a Class H felony, which carries the following sentence ranges:

• If this is your first conviction of any crime, the normal sentencing range is 5 to 17 months.

• However, if you have at least one previous conviction, sentencing guidelines assign point values to those convictions depending on their level of seriousness and increases the sentence as this overall point value increases. Depending on your criminal record, a wiretapping conviction in North Carolina can be 16 to 33 months.

There have been numerous cases of law enforcement prohibiting people from recording police activity that do not rise to the level of arrest. Officers will sometimes detain the individual, handcuff them, confiscate their phones or otherwise prevent them from recording an interaction. Some of these individuals have sued the police departments for violating their right to free speech. These lawsuits typically also employ a Fourth Amendment argument claiming violation of the person’s right to be free from unreasonable seizure, but courts have treated this as secondary to the First Amendment implications.

The First Amendment gives individuals the right to protected kinds of free speech. Courts are left to fill in the gaps and define what types of free speech are protected and which ones are not. The Supreme Court of the United States has not ever ruled on whether a right to record police activity exists within the First Amendment. Additionally, no federal court has made a ruling on this, including at the time of this writing North Carolina’s own Fourth Circuit.

This means we are left to look to the other courts for guidance.

Of the federal courts that have addressed any free speech right to record police, most of them have at a minimum concluded that recording police officers carrying out their duties in public spaces is a First Amendment right, subject to reasonable place, time and manner restrictions.

The landmark case on the topic came in 2011 from the federal First Circuit Court of Appeals in Glik v. Cunniffe. The court held that recording law enforcement in public places is a “clearly established right” for citizens under the First Amendment. In this case, Simon Glik recorded the arrest of a young man on his cell phone on the Boston Common in Massachusetts because he was concerned the officers were using excessive force. An officer asked him if he was recording audio and Glik indicated he was. Massachusetts’s wiretap law does not require consent like North Carolina’s, but prohibits recording others in secret. The officer immediately arrested Glik on wiretapping charges. After the municipal court dropped his charges, Glik sued the arresting officers and the City of Boston for violation of his First Amendment Rights.

The court ruled that Glik’s recording was not secret because he was openly recording police. The police officers appealed and the appellate court held that because Glik was not guilty of wiretapping, the police violated his First Amendment right to gather information and observations about what law enforcement was doing in a public place. Many other courts have looked to Glik in reaffirming that videotaping police in public places is constitutionally protected.

At least the Seventh, Ninth and Eleventh Circuit federal courts recognize a First Amendment right to record police similar to Glik. How courts address the issue depends on how the lawsuit is phrased.

• Sometimes plaintiffs attack the constitutionality of the wiretapping laws themselves.

• For example, the Seventh Circuit in ACLU v. Alvarez invalidated a state eavesdropping statute as it applied to ACLU employees recording police officers publicly performing their duties.

• Other times, plaintiffs allege violation of First and Fourth Amendment rights based on the police’s detaining without arresting them.

However, in 2016 the Eastern District of Pennsylvania held in Fields v. City of Philadelphia that filming or photographing police on a portable device without challenging the police is not “expressive conduct” under the First Amendment. This case makes it so a person must be verbally challenging or criticizing the police in order to videotape them in a public place and is a much narrower interpretation of the First Amendment. As of the time of this writing [February 2016], the plaintiff has vowed their intent to appeal, which would be in the Third Circuit Court of Appeal.

The Fields case is an enormous departure from established case law elsewhere in the country. Time will tell whether the Third Circuit reverses this decision and how it is treated by other courts but it could potentially unravel citizens’ First Amendment rights to record police that have been so carefully defended throughout the era of the camera phone.