Lights, Camera, Arrested: Filming the Police Can be Risky Business

By: Brandon Pierce

Daniel Saulmon, charged with resisting, delaying, and obstructing an officer, spent four nights in a California jail—simply because he used a cell phone to film police officers on a public street.[1]  Fortunately, for Mr. Saulmon, his cell phone recording showed the exact opposite.  The video showed Saulmon being arrested only after he failed to provide the arresting officer with some form of identification.

Certainly that was not the first time a person attempted to film police officers in public.  The media has covered over and over and over and over again the developing trend of “citizen-journalists” using cell phones to film officers.  In many instances, police have barraged these citizens with demands to turn off their phones, have confiscated phones, and, like in Saulmon’s case, have arrested individuals who attempted to capture them on video.

Consider this: the First Amendment to the United States Constitution protects our freedom of speech against governmental censorship.  Law enforcement officers are public officials, serving on behalf of the government.  So the right to film law enforcement without legal repercussions would seem like a legal no-brainer, correct?  Well, many courts are still split over that supposition, and are working to find some resolution.  The United States Supreme Court has yet to weigh in on the issue, after denying certiorari to Anita Alcarez v. ACLU of Illinois in 2012.[2]

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Why is this happening?

In 2012, the American Civil Liberties Union of Illinois (ACLU) asked the United States Court of Appeals for the Seventh Circuit that very question.[3]  The ACLU’s issue arose as a result of Illinois’s 1961 Eavesdropping Act.[4]  The statute prohibited the use of an eavesdropping device to record or hear any oral communication without “the consent of any communicating party.”  Violating the statute constituted a Class 4 felony, punishable with one to three years of imprisonment.[5]  However, law enforcement was granted even greater protection: violation of the statute against a police officer upgraded the charge to a Class 1 felony.  Thus, the punishment became more severe with a possible four to fifteen year prison sentence.  The ACLU challenged the statute’s constitutionality.  Ultimately, the Seventh Circuit held that the Act’s prohibition of openly filming police officers in public “burdens First Amendment rights directly, not incidentally.”[6]  Therefore, it is perfectly legal for citizens within the Seventh Circuit to record police officers performing their duties in public.

By contrast, in 2010, the Third Circuit refused to recognize filming the police in public as a First Amendment right.[7]  In that case, Brian Kelly was arrested for filming a police officer during a traffic stop.  The Pennsylvania Wiretap Act was used to justify the arrest.  The Act prohibits “the interception or recording of a conversation without the consent of all communicating parties.”[8]  When confronted with this issue, the Third Circuit held that due to “insufficient case law,” there was no right to videotape a police officer during a traffic stop.

The Importance of Your Right to Film the Police

Ensuring transparency within the law enforcement is a powerful public interest.  Filming the police affords valuable evidence of government misconduct, which is becoming easier to do each day.  Today’s technology has created multiple avenues for citizens to stream police conduct via Internet, often times, in a matter of seconds.

However, in states where courts have ruled in favor of the right to lawfully film police officers, there still exists the misconception that it is illegal.  That misconception was so pervasive that the New York City Police Department had to be reminded through an official memo circulated to each of its officers.  According to Daily News, the memo reminds officers that “members of the public are legally allowed to record police interactions,” and that “intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

Considering the national attention regarding police conduct, the NYPD’s memo is extremely timely, as more people are starting to film police interactions.  The public is more informed about how police officers are executing their duties when citizens are allowed to film and distribute police videos.  Additionally, it promotes accountability and transparency within civilian and law enforcement relations.  Ultimately, when police officers know they are being filmed, officer misconduct is less likely to occur.  Therefore, a citizen’s right to film the police is just and necessary; its legality, however, is still being debated throughout the nation.  For now, filming police officers in public places remains a risky business.

[1] http://photographyisnotacrime.com/2012/11/24/california-man-jailed-four-days-for-recording-cops/

[2] http://www.supremecourt.gov/orders/courtorders/112612zor_f204.pdf

[3] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[4]http://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+14&ActID=1876&ChapterID=53&SeqStart=33800000&SeqEnd=35000000

[5] Illinois Compiled Statutes (ILCS) – 730 ILCS 5/5-4.5-45.

[6] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[7] 622 F.3d 248, 262 (3d Cir. 2010).

[8] 18 Pa. Cons. Stat. § 5703.

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