Videotaping the police: A brief legal analysis
Whether or not a citizen can videotape a police officer in the active performance of a public duty is a question finding its way and potential resolution in the courts. The answer may well depend on the jurisdiction in which an officer is employed. Typically, arrests of citizens for videotaping police officers in public have been made under a particular state’s eavesdropping statute. However, the use of such a statute has often been misplaced. Police officers are public servants who perform very visible public functions. As one federal district court noted, “activities of the police... are subject to public scrutiny.1”
In Robinson v. Fetterman the District Court for the Eastern District of Pennsylvania held that there was a free speech right to film police officers in the performance of their duties. Subsequently in 2010 the Third Circuit found in Kelly v. Borough of Carlisle there was a broad right to videotape the police2.
But in Kelly the court did grant qualified immunity to the officers sued by the plaintiff based on a finding that the right to film the police was not a clearly established right of which the officers would have been aware. This is important to note because as more of these cases find their way to the courts and more court decisions similar to Robinson and Kelly are issued the right will become more clearly established and officers may find themselves at the wrong end of a lawsuit.
Even in states which require two-party consent for the recording of conversations, the use of eavesdropping statutes has not gained much traction. Again, the basis for the arrest in the many publicized cases we have encountered around the country has been based on state wiretapping or eavesdropping statutes which by reason must fail because of the public nature of the officer’s duty.
Most recently, the Supreme Court of Michigan dismissed a civil suit brought by several officers who claimed they were unlawfully videotaped and had their privacy invaded when video of their encounter with the defendants — all well-known rappers — was used in portions of a DVD of the concert tour3. In Bowens v. Ary, Inc., the Michigan court ruled as a matter of law that the plaintiff officers had no reasonable expectation of privacy under the circumstances during the performance of their duties.
If an arrest is to be made of a citizen for videotaping officers in public it should be related to an officer’s concerns other than a desire to prevent the taping. While no one wants to find themselves on YouTube or any other social media site, the present-day reality is that there is increased public scrutiny of officers and an added avenue for bringing to light some objectionable officer behavior. This is not necessarily a bad thing because it has resulted in police departments being able to dismiss marginal officers for behavior that may have otherwise not been able to be substantiated but for a citizen’s recording.
Arrests of citizens who videotape police in public would be justified if the citizen is otherwise interfering with the performance of the officer’s duty. An unheeded warning to move away from the scene if the videographer is too close or in an unsafe position could be grounds for an obstructing arrest.
Similarly, depending on the citizen’s conduct, breach of the peace or disorderly conduct charges may be warranted. The caution remains to tread lightly in this area and for the officer to be able to articulate the reasons for an arrest. Absent some clear violation of law unrelated to the videotaping, officers are advised to carefully consider the legalities surrounding the decision to arrest. Of course, officer safety concerns must always be considered and if relevant to the decision to arrest, these concerns should be expressed in the charging document.
There are a host of legitimate reasons for officers to keep members of the public clear from a scene. Caution and common sense remain an officer’s best defense.
1Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa,. 2005)
2 Kelly v. Borough of Carlisle, 622 F. 3d 248 (3d Cir, 2010)
Sup>3 Bowens v. Ary, Inc., 794 N.W. 2d 842 (Mich Sup Ct, 2011)