The Law

For years, the legality of recording police conduct was unclear and varied from state to state. Several states had even passed laws that banned the practice altogether. Indeed, many websites and blogs still contain outdated and misleading information on the Right to Record. Fortunately, recent legal developments have clearly defined certain rights in this area.

First, several federal courts and the U.S. Department of Justice have affirmed that citizens have a First Amendment right to openly record police officers performing their duties in public. Any law prohibiting this conduct is therefore unconstitutional. Only the U.S. Supreme Court can overturn this Right to Record and the current Supreme Court appears reluctant to do so. After a Federal Appeals Court last year overturned an Illinois law prohibiting audio recordings of police, the state of Illinois appealed to the Supreme Court. The Supreme Court refused to revive the Illinois law by denying further review of the case. However, because the Court did not issue an opinion, this doesn’t necessarily mean the justices endorse the lower court’s ruling.

Most of the notable cases dealing with this issue have involved the third parties (typically media) filming or photographing police interactions with other citizens. However, the law is clear that any citizen may openly record their own communications with police.[ref]Note: Citizens are also protected by the Fourth and Fourteenth Amendments from having their recording equipment illegally seized by police under these circumstances and can sue the police for damages under federal law.

Unfortunately, it remains unclear whether or not citizens may secretly record law enforcement acting in public. Several courts have explicitly held that individuals do have this right. Further, in a recent court filing (03/04/13), the U.S. Justice Department stated “[i]t is now settled law that the First Amendment protects individuals who photograph or otherwise record officers engaging in police activity in a public place.” This is a broad affirmation of the right to record public police conduct from the highest law enforcement agency in the country and could reasonably be relied on to justify secret police recordings.

To be clear, the current status of the law is as follows:

You DO have the right to openly record official police conduct performed in public.
You MAY have the right to secretly record police conduct performed in public.
You DO NOT have the right to record the private conversations of police (or anyone else) without consent if you are not a party to the conversation.