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Citizens are recording police officers doing their official duties… But, is it legal?
By Christopher W. Sexton on December 6, 2017

In the wake of recent high-profile excessive force incidents, police departments are being pressured by the public for greater accountability and transparency in law enforcement. Police departments, cities, towns, and other municipalities have become subject to seemingly endless scrutiny, and they have seen a sharp rise in law enforcement watchdog groups, media coverage, investigations by the Department of Justice, and protests. Police Departments have responded with police-worn body-cameras, but they have still seen an increase in cases of citizens using cell phones and other devices to record police encounters. But, is that legal?

The Third Circuit Court of Appeals, in of the case Fields v. City of Philadelphia, recently addressed the issue of whether a citizen has a constitutional right to record police activity in public.  Consistent with every other circuit to address this question, the Court held that citizens do have a right to record police activity, but this right has some limitations.   The facts of the consolidated cases concerned two individuals, at different times, in different places, who were videotaping police officers while they were acting in their official duties.  Neither of these individuals was interfering with the duties of the law enforcement officers.  The issue arose when officers detained and prevented these individuals from continuing to record the police activity.  These individuals filed a lawsuit claiming “that the officers illegally retaliated against them for exercising their First Amendment right to record public police activity[.]”

The Third Circuit held that citizens, in fact, do have a protected First Amendment right to record police conducting their official duties. The court reasoned that such a rule protects the public’s right to access information, spurs agencies to improve their own police force, and even complements the role of truthful and accurate news media. 

The court further recognized that the privilege is not absolute.  There are limitations to recording police activity.  The court did not address the limits of this constitutional right at length, but did note that when the act of recording interferes with police activity or puts others in danger, these activities might not be protected.  The law remains unclear on certain questions in many jurisdictions and can even vary from state-to-state.  Other limitations and guidelines have been clarified, so police departments should consult with their attorneys to understand the nuances of law. 

Understanding the law in this area is important to police departments because if an individual prevails on a claim of police retaliation for recording an incident, the monetary damages paid by the department could be substantial.  And worse, these claims have the potential to create political and social discord between law enforcement and the community. 

Technology is not going away and, in an age where social media has become a popular source for news, anyone can capture police activity and report that “news” instantly.  Nearly ninety-two percent of all Americans own a cellular phone, so inevitably, these types of occurrences will continue to grow.

Police departments and municipalities should clearly understand the parameters and limits regarding videotaping law enforcement officers so that officers and other personnel can be trained about what citizens can and cannot do while recording their activities.  If you would like more information about shaping department policies to avoid conflicts or need help developing strategies for litigation, please contact our Defense Litigation Department.

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