Last Updated: 05.14.2022
A series of tragic events within recent months have caused a flurry of videos recording the police to appear across the internet. However, in certain situations, taking video footage of police officers can be illegal.
Police departments across the nation are under a microscope, but not just by authorities and the Department of Justice. Smartphones create an opportunity for individuals to record anyone at any time, including police officers.
As long as the process of recording the police does not interfere with an officer’s duties, and the video is taken in a public area, then under the First Amendment, it is legal to be recording the police officer’s actions while on duty.
Can You Record the Police Without Permission?
Under the First Amendment, individuals have the right to freedom of the press, public access to information, and the right to freely discuss government.
Technological advancements have created the ability for members of the public to capture news and spread it publicly at a rate that is faster than ever imagined. Because of this, legal authorities have established that the right to freedom of the press extends to citizens acting in a manner consistent with journalists. Just as it does to recognized and official members of the press.
So yes, you can record the police without their permission. But there are limitations.
Limitations on Recording the Police
The courts cannot prohibit the act of recording police activity. However, they can place limitations on such recordings as necessary to protect the safety of the officers. Such limitations pertain to:
- the manner in which recordings are taken
- the time at which they can be taken
- and where it is permissible to take recordings
There is no question the First Amendment establishes rights that make it allowable to record police activity. However, the exception to this is when doing so interferes with the officers’ ability to do their job. Officers may legally require individuals to stop recording if the act of doing so:
- interferes with the safety of others or
- interferes with the officers’ ability to enforce the law
Certain states have enacted laws pertaining to surveillance that are in place to protect the privacy rights of citizens. However, these laws would also prohibit a citizen from recording an officer—through audio or visual means without their knowledge.
In situations where officers have been recorded secretively, the officer has a right to privacy which takes precedent over the individual’s First Amendment rights. Therefore, if an individual wants to record a police officer, they are required to do so in an obvious way.
Further, harassment, stalking, and trespassing laws can create further problems when recording the police. Just as one individual cannot record another in a way that is deemed to be harassment, it is also illegal to harass or stalk a police officer on duty in an attempt to record their actions.
An officer can lawfully arrest someone for recording them if:
- the individual is arrested on the grounds of stalking or harassing them and
- it is not done in an attempt to violate the individuals First Amendment rights
Can a Police Officer Delete Your Pics or Video?
A police officer does not have the right to delete any videos or pictures you take on your cell phone. This would be considered an obstruction of justice and they would be destroying the evidence. That said, they may do it. However, there are several examples of officers that ended up in significant legal trouble for such actions.
ENLawyers Bottom Line on Recording the Police
States have different laws pertaining to when is it permissible to record the police while conducting activities within the constructs of their duty. In Maryland, the Court of Appeals has made it clear that you may record a police officer in a public area so long as it does not interfere with his or her duties.
Keep in mind that maintaining a safe distance from any police encounter is always going to be important. If you are planning to take, or have taken video or audio recordings of officers, and it has led to or may lead to legal problems, you should consult with one of the experienced attorneys at the Law Offices of Eldridge, Nachtman, and Crandell.