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During any encounter with a US police officer, under what circumstances would the officer have the right to force me to stop recording our encounter with my smart phone, and can he prevent me from retrieving my phone if I don't have it out already when the encounter begins?

I know that it's legal to record my encounter with an officer in the US, I'm just curious about what excuse the officer could use if he wanted to force me to turn off the phone, and what situations he would legally be able to force me to stop recording.

If I believe the officer may wish to violate my rights, do I have any legal ground to refuse to stop recording? Is there any particular way I can record in order to make it safe for the officer and still effective, so that I cannot be forced to stop recording?

Perhaps a wearable camera would allow citizens worried about protecting their rights during police encounters to ensure their recording can't be legally stopped by an officer, even if the officer knows of that particular wearable device and doesn't want to be recorded?

  • From a practical perspective, or a legal perspective? – WBT Mar 16 '16 at 2:41
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    I don't have time to write an answer, but this page gives a lot of good info: reason.com/archives/2012/04/05/7-rules-for-recording-police. TL;DR, in 48 states you can film on-duty police, but don't interfere, and be prepared to possibly be arrested and have to fight in court if you don't comply with instructions. – childofsoong Mar 16 '16 at 2:47
  • @WBT I guess you could explain the legal perspective and practical implications.. – Viziionary Mar 16 '16 at 8:22
  • Related: law.stackexchange.com/questions/4123/… – feetwet Mar 16 '16 at 18:12
  • Note: Existing answer weren't unsatisfactory, but I'm interest in answers that go a little further to explore and explain solutions to the problem. – Viziionary Nov 23 '16 at 11:51
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+50

According to the ACLU, in the U.S.:

Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes police and other government officials carrying out their duties.

I.e., a law enforcement officer can never lawfully demand that you turn off a recording device.

However the ACLU itself acknowledges that this right continues to be broadly infringed by government agencies and agents. The ACLU and other watchdog groups try to document and fight infringements of this right.

Infringement is still so widespread that, in practice, there are many areas and circumstances in which you could expect to be detained, harassed, arrested, and even charged with various crimes for recording police, or for refusing police demands to stop recording. (The charges will not be for recording police, since that is not a crime, but will typically be "contempt of cop" type charges like obstruction, failure to obey, assault, resisting arrest, etc.)

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    Wiretap law in all-party states might limit your ability to voice-record if there is a reasonable expectation of privacy, which there is not for police carrying out their duties in public. See also nyclu.org/news/… and nyclu.org/files/releases/… regarding photographs and federal buildings. – user6726 Nov 24 '16 at 20:12
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The obvious case when a police officer can ask you to stop doing something is for his own protection.

We had the recent case where a police office arrested a women after she refused to put out a cigarette during a stop (where the office was going to give a warning and the woman died in custody). The cigarette could be used as a weapon.

If you were holding a cell phone in such a manner that you could hit the officer with it, it would be reasonable for him to ask you to stop.

In general, he could not ask you to stop filming just to stop filming. However, he can do much in regard self protection.

  • What about the second part of my question? What if I ended up in a police encounter without my smart phone in hand? Does that make it possible for the officer to legally prevent me from taking it out (even after announcing my intentions) to record? It seems like an officer, lets say in a non hostile situation, wants to stop me in a casual traffic stop, from recording, could he say I cant reach into my pocket because I could be pulling out a weapon? – Viziionary Mar 16 '16 at 22:28
  • Also I dont see how this covers a typical situation. Obviously the officer could force me to stop if Im holding my phone over my head about to hit him with it, but the video would show evidence of whether that's happening, and I'm curious about a typical, non hostile police encounter where I just want to protect myself with video. – Viziionary Mar 16 '16 at 22:31
  • The general rule is that you can film. The other general rule is that the officer can protect himself. The question of whether you can film depends on the application of those two rules, – user3344003 Mar 17 '16 at 2:31
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In practice, anytime they want to.

They may have to claim that your recording was interfering with something they or other emergency responders were doing, that you disobeyed a direct order to stop, that they interpreted your recording as being aggressive against them in some way, that they thought your recording device might be a gun, or that you were watching something illegal, etc.; especially the latter few would give them grounds to shoot you dead.

If the action the officer took to stop you from recording were ever tested in court, the court would very likely believe whatever the police say. They’d probably do their best to portray you in the worst light possible, even if that means making you a criminal suspect and/or ensuring that you have an arrest record by the time that hearing comes up. If it’s an encounter between you and the officer, they’ll make allegations about why they engaged you in that encounter, and they will likely be believed.

However, if a police officer stops you from recording, that is by itself unlikely to reach a court unless they also prosecute you for the recording alone, which is very unlikely to happen. If they prosecute you for anything, they’d likely prosecute on some other basis (e.g. disobeying an order, resisting arrest, etc.). It’s not like you can get a court to resolve the question in the moment of any recording, and if you try to take action through the legal system after the fact, (a) it’s clearly interfering with the police work and (b) it’s not going to help you be able to continue recording whatever it is you wanted to record in the first place.

In some states, the mere presence of a camera with a field of view covering a nonpublic area where a person might legally be physically present, can be considered an Assault against that person, and you could be prosecuted for that (& even if you win, it could be quite expensive to defend such a claim).

See https://www.youtube.com/watch?v=tLnhSl1ajyc for an example of how the law works in practice.

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    Officers wearing body cameras who turn them off are now, I'm told, assumed to be lying about anything and everything once they turn the camera off, because if you're a police officer who's acting within the law, you're happy to have the video to prove it. So then, wouldn't the fact that the officer prevented me from recording make him appear to have the intention of doing something wrong, and wouldn't that be a big consideration in a court trying any case where the officer prevented a video recording? – Viziionary Mar 17 '16 at 23:02
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    @user6048918 It depends on the finder of fact (usu. jury); they are welcome to interpret and weigh the evidence however they want. Usually they'll be believed when claiming that their camera was not off because they were lying/hiding something (e.g. they might claim they "just forgot") and that they stopped you because you were acting aggressively or interfering with what they were doing (or taking advantage of that strange point in the law that the presence of a camera can be considered Assault). – Burned Mar 23 '16 at 12:50
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    Here’s an example. Police chase, shoot, & kill an unarmed man. 12/16 officers’ body mics “malfunctioned” or were intentionally off during & after the shooting, like the car recorder of the police supervisor at the scene after the start of the supervisor’s conversation w/the shooter. The shooting review board meeting was not recorded as required, except the vote that the officer’s actions were “reasonable.” He was never charged or disciplined, not even after failing to keep his story straight. – Burned Mar 24 '16 at 13:17
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The “filming or videotaping of government officials engaged in their duties in a public place, including police officers performing their responsibilities, is protected by First Amendment.” Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) See also, Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (“The First Amendment protects the right to gather information about what public officials do on public property,” including right “to photograph or videotape police conduct”); Robinson v. Fetterman, 378 F.Supp.2d 534, 542 (E.D.Pa.2005) (finding First Amendment right to videotape state troopers on public highway performing truck inspections).

One good demonstration of the right to video police is seen here where an out of state cop brought a gun into a San Diego court room. The Nevada cop, Leesa Fazal, Las Vegas, was told to not exit the San Diego Court.

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