Which of these are illegal for you to videotape: The president exiting the White House, a train pulling into Penn Station, or a police officer making an arrest during a traffic stop? The answer: all are legal.
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right, and this includes the outside of federal buildings, as well as transportation facilities, and police carrying out their duties. Now if someone would just tell the police.
With the proliferation of recording technology that enables law enforcement, suspects, and bystanders to record police-public interactions, police need to know what is lawfully permitted. However, there is a widespread, continuing pattern of police officers ordering people to stop taking photographs or video in public, and harassing and arresting those who fail to comply. Essentially, police are arresting protestors, journalists and innocent bystanders because they don’t like their behavior being recorded. Mickey Osterreicher, of the National Press Photographers Association, said he hears of “almost four incidents a week” in which police either harass, interfere or arrest people for shooting video in public places.
Complicating the situation is the fact that people are rarely arrested on a charge of recording police because the Supreme Court has widely upheld that activity as protected under the First Amendment. Instead, they are commonly being hauled into court on charges of obstruction of justice and resisting arrest. A recent case involved Thomas Demint, a 20-year-old Long Island college student, who used his cellphone to record police officers arresting two of his friends and assaulting his mother. Demint says three officers tackled him, took away his smartphone and tried, unsuccessfully, to erase the video before arresting him on obstruction charges and resisting arrest. “I am 100 percent innocent,” Demint said at a press conference. “I didn’t do anything wrong. I was just there to videotape.”
The spokesman for the police department that arrested Demint wouldn’t comment on his case specifically but said, “Video is certainly here to stay and people have a right to take video. But they don’t have a right to interfere.” Demint is part of a growing trend of people getting arrested after trying to record police officers in action. Other examples of similar incidents include:
- A North Carolina man who said he “kept a safe distance” while recording police arrest his friend earlier this year was booked on resisting and obstructing an arrest, charges that were later dropped (but the arrest still hampers his search for a job).
- A high school student in Newark was arrested in March 2011 for taking cell phone video of officers responding to an incident on a New Jersey Transit bus.
- A Missouri man claimed he was arrested after recording the police respond to a protest outside the Ferguson Police Department after the shooting of Michel Brown. He says that as soon as he stepped onto a street that was blocked by police, he was booked on a disorderly conduct charge.
Some states and rights advocates are fighting back. In August, California adopted a new law that clearly states that people may not be prevented from recording the police, provided they do not interfere with the officers performing their duties. The laws’ proponents say it’s a win-win, with the law protecting the public from misconduct by law enforcement, and protecting good police officers who could have their careers damaged by untrue allegations of abuse. In several states, the ACLU has developed apps for witnesses to record video of police interactions with the public. The video is then immediately uploaded to the ACLU to be documented. Apps are already being used in Michigan, Pennsylvania, Missouri, Mississippi, Oregon and other states. It is not coincidence that some of the most high-profile cases of recent police misconduct involve video.
As technology advances, photography and video will only increasingly play a larger role in protecting our civil rights. That is why it’s essential that this critical check and balance on law enforcement overreach remains unimpeded.