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Is it legal for me to videotape the police?
Videotaping technology has come a long way in the past decade, and handheld camera and video recording phones are so prevalent that there has been a significant increase in the number of arrests and police interrogations that have been filmed.
This is clearly an undefined area of law, as officers often do not want to be taped if they are in violation of police protocol or denying a suspect their legal rights. Surprisingly, both the American Civil Liberties Union and various photographer associations have actually sued over restricted videotaping of the police and won in court. There are several constitutional issues at play, and the federal and state courts systems have already begun establishing precedent rulings.
Public and Private Property Videotaping
The first rule in determining when the police can be videotaped while performing their job responsibilities is based on property law. The federal court system has held that all American citizens have a broad right to film the police when they are in a public place. This is protected speech by the First Amendment, according to the court.
Private property is different. No one can film on private property without the authority of the property owner. It is very important to make sure that you are on public property when attempting to videotape the police, and even then it can be difficult. Always ask for permission on private property. It could also be easy to obstruct or interfere with a police officer in the line of duty when the filming individual is not a reasonable distance from the police activity. Police officers across the nation regularly abuse the power to arrest and interpret activity in terms of being reasonably legal, and harassment can occur quickly.
Police Officer Restrictions
There are some practices that police cannot do under any circumstances when conducting an investigation or interviewing a potential suspect videotape operator. The first requirement is that they get a warrant if they want to confiscate a piece of videotaping equipment, including a phone or camera memory card.
In addition, they cannot order that a videotape be destroyed or erased. The video is the personal property of the video camera owner and the taping of a police officer on duty in a public place does not establish reasonable suspicion, which is necessary to advance to searching for probable cause. Police officers can ask a person to quit filming an arrest or investigation when the filming individual actually is interfering with the police officer's ability to fulfill their duty as a public servant.
What to Do When Being Confronted by the Police
It is never a good idea to be offensive or indignant toward a police officer, especially when they are following proper protocol. There is one question that can be asked that can clarify the situation. Asking the officer politely if you are free to go will force the officer to commit with respect to why you are being interrogated. Suspects can be questioned before they become defendants, which occurs at an arrest.
If the officer refuses to let you go, then ask him/her what the suspected charge is. The camera and video are property of the camera owner. However, police have extensive latitude in many states, so always make sure to be as nice as possible and do not make any moves that will indicate that you may have a concealed weapon. Officer safety trumps all other concerns for the officer, according to the U.S. Supreme Court, and they can almost always claim personal safety for shooting or striking a suspect or defendant.
Can an Attorney Help When the Police Confiscate a Camera?
Absolutely. The laws controlling the guaranteed right to film in public property are covered by the First Amendment and the Fourth Amendment, and many times the Fifth Amendment defense of self-incrimination can apply in serious cases of police actions that do not meet department policy.
Having an experienced and effective criminal defense attorney can result in successful lawsuits in many cases, as the ACLU and the photographers professional associations have found, as well as the Society for Professional Journalists.
This is also clearly an emerging area of law that will undoubtedly be a more significant issue as more people purchase recording equipment in the digital age. It is always good professional or novice practice to know who you need to call when filming property violations occur, or to have circumstances explained when the police have conducted themselves outside of the rule of law.