The Police Can’t Order You To Stop Filming Them In Public, Or Force You To Delete Pics From Phone

An Al Jazeera TV crew being tear-gassed by authorities in Ferguson (via BoingBoing)

An Al Jazeera TV crew being tear-gassed by authorities in Ferguson (via BoingBoing)

A good deal of the footage coming out Ferguson, Missouri, this week has been provided by non-journalists, using their phones to record and photograph events. At the same time, reports claim that police are attempting to block both ordinary citizens and journalists from documenting the situation. What these officers either don’t know or aren’t saying is that you have the legal right to photograph the police, even when they tell you not to.

GigaOm’s Jeff John Roberts has a concise piece on the topic that anyone interested should read.

In 2011, the U.S. Court of Appeals for the First Circuit ruled [PDF] in the case of Glik v. Cunniffe that private citizens have the right to record public officials, including police, in a public place.

The court held that the First Amendment’s proscription on laws “abridging the freedom of speech, or of the press… encompasses a range of conduct related to the gathering and dissemination of information.”

The ruling cites an earlier Supreme Court pronouncement that people have the right to gather news “from any source by means within the law.”

“The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles,” wrote the Appeals Court. “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.'”

The Supremes had previously stated that “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’”

And the First Circuit said this applies even more so to law enforcement officials, as they “are granted substantial discretion that may be misused to deprive individuals of their liberties.”

“Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses but also may have a salutary effect on the functioning of government more generally,” wrote the court.

The Glik ruling also acknowledged limitations to citizens’ rights to record public officials.

“It may be subject to reasonable time, place, and manner restrictions,” the First Circuit explained. And though it did not specifically prescribe what those limitations might be, the court noted that “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”

The court explained that, much like police are expected to withstand verbal challenges from citizens without threatening arrest, this “same restraint demanded of law enforcement officers in the face of ‘provocative and challenging’ speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.”

Regarding the question of whether or not police can tell you to delete photos from your phone, the recent Supreme Court rulings in Riley v. California and U.S. v. Wurie make it rather clear that they can not force you to do so.

In those cases, SCOTUS held that a warrant is needed to search a citizen’s phone, even if that citizen has been arrested. And since there is no way to tell if a photo has been taken — or what the content of a photo might be, or if it’s been deleted — without searching that phone, this tells us that an officer barking at you to “delete those photos!” can ask all that he or she wants, but it’s up to you whether or not you want to erase the images.

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  1. SingleMaltGeek says:

    This was written mostly with still photography in mind, but the law applies to still and video equally: http://www.krages.com/phoright.htm

  2. StevenPierce says:

    Yep, you are correct the police can’t legally stop you from filming them. But they can kill you and it is hard to argue your legal rights when you are dead.

  3. RupturedDuck says:

    Actually the police *can* stop you from filming them in public. They have the firearms, the batons, the lead-weighted gloves and their sheer presence to stop you. They can beat you up, throw you in jail. They can confiscate your camera and destroy the evidence.

    I didn’t say it was legal but they *can* do it.

    Now you will be hard-pressed to go after them if you are an average person. Assuming the medical bills after being roughed up a bit, the legal fees, etc. Even when your arrest is tossed out in court, you will still have an arrest record on the books, unless your lawyer is good enough to get that expunged, too. Will the cops in question be disciplined? To what degree? Once you get your camera back (or what may be left of it) will those other photos you took of the last days with your Dad and your last moments together will still be there, or will they also be magically gone and unrecoverable, too? After your injuries heal will you be whole, or will you carry some lasting physical and/or psychological damage? Will you ever trust the police again, even if you really need them?

    The militarization of our police forces has greater implications than many are led to believe. And many who have encounters with police find the difference between those “real” crooks being arrested and those doing the arresting is not much more that one group legally carry a badge and a gun. Some police, even the newer ones, are often thugs themselves.

    So your headline is incorrect, Consumerist. The police can stop you because they can stop you. The real damage cannot be rectified by the courts or a band-aid. Fear and distrust have replaced respect and integrity about the police in many, many, MANY(!) areas across this country. And all it takes is an incident in one location (Ferguson, MO) to seriously question your own community’s police, especially when your local police often look, smell, sound and walk like the ducks in Ferguson.

    • C0Y0TY says:

      If you’re using a cell phone or wi-fi enabled camera, then the police really can’t stop you. The photos and video are stored remotely, so they can destroy the phone or camera and the media will still exist. They can try to delete it or demand you delete it, but it can still be recovered. Just as a parking officer can say they can’t undo a ticket, you can tell the police you can’t undo a photo or video.

    • Xenotaku says:

      Might want to re-read the headline. It doesn’t say “can’t”, it says “can’t order.” And the assumption is “can’t legally order”.

  4. DaddyBee says:

    I have to agree with some of the commenters and disagree with Consumerist. You really should change the headline to “..can’t order you LEGALLY to stop filming them in public…”

    Because Police can and will order you and stop you from filming them if they so choose. You really think that 1) They are knowledgeable enough to KNOW they legally can’t, and 2) You think they care either way?

    In an altercation with police, in the moment, police have all the rights, all the power, and all of the control. In today’s day and age, you stand up to a policeman at your own risk. An everyday person can’t expect any recompense in any form if a policeman oversteps their bounds, unless it is one of the few cases that merits a big award from a jury.

    People with money and power like it this way, because it makes regular people stay in their place, and the same rules and laws don’t apply to them, so what do they care about the supposed ‘militarization of police’?