The Connecticut Senate passed a bill last week that allows citizens to record police officers, so long as the police officers in question don’t object to being recorded.
“A peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer's duties shall, subject to sections 5-141d, 7-465 and 29-8a of the general statutes, be liable to such person in an action at law, suit in equity or other proper proceeding for redress.”
Section 1(c) reads:
“A peace officer shall not be liable under subsection (b) of this section if the peace officer had reasonable grounds to believe that the peace officer was interfering with the taking of such image in order to (1) lawfully enforce a criminal law of this state or a municipal ordinance, (2) protect the public safety, (3) preserve the integrity of a crime scene or criminal investigation, (4) safeguard the privacy interests of any person, including a victim of a crime, or (5) lawfully enforce court rules and policies of the Judicial Branch with respect to taking a photograph, videotaping or otherwise recording an image in facilities of the Judicial Branch.”
While Republicans who voted against the bill said it would expose Connecticut cops to frivolous lawsuits, this legislation couldn’t be more protective of police if it was written by the cops themselves.
The standard for interference is based on “reasonable grounds to believe” that filming would jeopardize public safety, violate privacy, or conflict with other laws. What are reasonable grounds? The bill doesn't say. How could recording a police officer beating the snot out of some poor perp jeopardize "public safety"? The bill doesn't say. When it comes to protecting privacy, who counts among "any person"? The bill doesn't say.
Because the bill doesn't exclude police, it's conceivable that a cop could stop a recording to protect his or her own privacy. Because the bill doesn't distinguish between preemptively protecting a person's privacy versus doing so at a person's request, it's conceivable an officer could stop a citizen from recording an arrest on the grounds that the recording would violate a suspect's privacy. (For more information on how police, prosecutors, and even judges abuse privacy to keep from having their public shenanigans recorded for posterity, see Radley Balko's 2011 Reason story The War on Cameras.)
The Right to Record Police in Connecticut
Mario Kenneth Cerame
March 17, 2012
Quinnipiac Law Review, Vol. 30, No. 385, 2012
There is a nationwide culture-clash between police and citizen-recorders: citizens who desire police accountability on the one hand, and police who must maintain order on the other. More and more Americans, using now ubiquitous cell phone cameras, can document police conduct. Even though these encounters are on the rise, the law governing our right to record police in their everyday duties is not clear. Those many officers who intend to act with dignity and decorum, to serve and to protect, need to know the rules. Yet police administrators have not provided rank-and-file officers with clear street-level procedures and training for these situations. When can police lawfully stop a citizen from recording? Does recording police even fall within the criminal statutes statutes used? What are the constitutional contours of a right to record police? What state interests are at stake?
This note begins an inquiry into these questions, focusing on the state of Connecticut. (Every state in America faces analoguous issues and has simliar statutes, however.)
I start by examining the interests at stake. Why would police want to stop someone from recording them? Why would someone want to record police? What are the policy considerations? Next, I explore the criminal statutes invoked in Connecticut to prevent and deter citizen-recordings, in particular interfering with an officer and disorderly conduct, and whether the act of recording police falls within these statutes. I conclude that these catch-all criminal statutes may apply under specific facts. I then set forth the constitutional rules surrounding recording police, including free speech and press rights, due process rights, and other constitutional issues. Lastly, I consider the appropriate scope of a right to record police and suggest key points for a model policy on police interactions with citizen-recorders.
The scope of my inquiry is limited. I assume the recorder has a license to be present when the encounter occurs in a store, at a traffic stop, in a parking lot, at the recorder‘s own home, at a friend‘s home, or the like. Second, this note examines only citizen recorders who specifically intend to record police officers, as opposed to those who record by accident. Third, this note does not consider recording police incidentally or with stationary surveillance devices. However, I presume no prior relationship between the recorder and an accused — they could be strangers or friends. Additionally, the medium might include video, still images, audio, or a combination of these.
In the final analysis, despite legitimate reasons for limiting a citizen‘s right to record police, I conclude that the use of catch-all statutes in Connecticut to prevent or deter these recordings is both unconstitutional and unwise. I propose clear, workable rules for police officers. I principally hold prosecutors, lawmakers, and police administrators accountable. Rank-and-file officers will be the targets of lawsuits and complaints, but those most at fault sit above street-level.
When it comes to police encounters, you don't get to choose whom you're dealing with. You might get Officer Friendly, or you might get Officer Psycho. You'll likely get officers between these extremes. But when you "watch the watchmen," you must be ready to think on your feet.
In most circumstances, officers will not immediately bull rush you for filming them. But if they aren't properly trained, they might feel like their authority is being challenged. And all too often police are simply ignorant of the law. Part of your task will be to convince them that you're not a threat while also standing your ground.
"What are you doing?"
Police aren't celebrities, so they're not always used to being photographed in public. So even if you're recording at a safe distance, they might approach and ask what you are doing. Avoid saying things like "I'm recording you to make sure you're doing your job right" or "I don't trust you."
Instead, say something like "Officer, I'm not interfering. I'm asserting my First Amendment rights. You're being documented and recorded offsite."
Saying this while remaining calm and cool will likely put police on their best behavior. They might follow up by asking, "Who do you work for?" You may, for example, tell them you're an independent filmmaker or a citizen journalist with a popular website/blog/YouTube show. Whatever you say, don't lie-but don't let police trick you into thinking that the First Amendment only applies to mainstream media journalists. It doesn't.
"Let me see your ID."
In the United States there's no law requiring you to carry a government ID. But in 24 states police may require you to identify yourself if they have reasonable suspicion that you're involved in criminal activity.
But how can you tell if an officer asking for ID has reasonable suspicion? Police need reasonable suspicion to detain you, so one way to tell if they have reasonable suspicion is to determine if you're free to go. You can do this by saying "Officer, are you detaining me, or am I free to go?"
If the officer says you're free to go or you're not being detained, it's your choice whether to stay or go. But if you're detained, you might say something like, "I'm not required to show you ID, but my name is [your full name]." It's up to you if you want to provide your address and date of birth if asked for it, but I'd stop short of giving them your Social Security number.
"Please stop recording me. It's against the law."
Rarely is it advisable to educate officers about the law. But in a tense recording situation where the law is clearly on your side, it might help your case to politely present your knowledge of state law.
For example, if an insecure cop tries to tell you that you're violating his civil liberties, you might respond by saying "Officer, with all due respect, state law only requires permission from one party in a conversation. I don't need your permission to record so long as I'm not interfering with your work."
If you live in one of the 12 all party record states, you might say something like "Officer, I'm familiar with the law, but the courts have ruled that it doesn't apply to recording on-duty police."
If protective service officers harass you while filming on federal property, you may remind them of a recently issued directive informing them that there's no prohibition against public photography at federal buildings.
If you're approaching the scene of an investigation or an accident, police will likely order you to move back. Depending on the circumstances, you might become involved in an intense negotiation to determine the "appropriate" distance you need to stand back to avoid "interfering" with their work.
If you feel you're already standing at a reasonable distance, you may say something like, "Officer, I have a right to be here. I'm filming for documentation purposes and not interfering with your work." It's then up to you to decide how far back you're willing to stand to avoid arrest.
Rule #4: Don't Share Your Video with Police
If you capture video of police misconduct or brutality, but otherwise avoid being identified yourself, you can anonymously upload it to YouTube. This seems to be the safest legal option. For example, a Massachusetts woman who videotaped a cop beating a motorist with a flashlight posted the video to the Internet. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her. (As usual, the charges against her were later dropped.)
On the other hand, an anonymous videographer uploaded footage of an NYPD officer body-slamming a man on a bicycle to YouTube. Although the videographer was never revealed, the video went viral. Consequently, the manufactured assault charges against the bicyclist were dropped, the officer was fired, and the bicyclist eventually sued the city and won a $65,000 settlement.
Rule #5: Prepare to be Arrested
Keene, New Hampshire resident Dave Ridley is the avatar of the new breed of journalist/activist/filmmaker testing the limits of the First Amendment right to record police. Over the past few years he's uploaded the most impressive collection of first-person police encounter videos I've ever seen.
Ridley's calm demeanor and knowledge of the law paid off last August after he was arrested for trespassing at an event featuring Vice President Joe Biden. The arresting officers at his trial claimed he refused to leave when ordered to do so. But the judge acquitted him when his confiscated video proved otherwise.
With respect to the law Ridley declares, "If you're rolling the camera, be very open and upfront about it. And look at it as a potential act of civil disobedience for which you could go to jail." It's indeed disturbing that citizens who are not breaking the law should prepare to be arrested, but in the current legal fog this is sage advice.
"Shut it off, or I'll arrest you."
At this point you are risking arrest in order to test the boundaries of free speech. So if police say they'll arrest you, believe them. You may comply by saying something like "Okay, Officer. But I'm turning the camera off under protest."
If you keep recording, brace yourself for arrest. Try your best not to drop your camera, but do not physically resist. As with any arrest, you have the right to remain silent until you speak with a lawyer. Use it.
Remember that the camera might still be recording. So keep calm and act like you're being judged by a jury of millions of your YouTube peers, because one day you might be.Rule #6: Master Your Technology
Smartphone owners now outnumber users of more basic phones. At any moment there are more than 100 million Americans in reach of a device that can capture police misconduct and share it with the world in seconds.
If you're one of them, you should consider installing a streaming video recording and sharing app such as Qik or Bambuser. Both apps are free and easy to use.RELATED
How to Secure Your Smartphone
With phones falling into the wrong hands every day and California residents subject to warrantless cellphone searches, now's a pretty good time… Read…
Always Passcode Protect Your Smartphone
The magic of both apps is that they can instantly store your video offsite. This is essential for preserving video in case police illegally destroy or confiscate your camera. But even with these apps installed, you'll want to make sure that your device is always passcode protected. If a cop snatches your camera, this will make it extremely difficult for her to simply delete your videos. (If a cop tries to trick you into revealing your passcode, never, never, never give it up!)
Keep in mind that Qik and Bambuser's offsite upload feature might be slow or nonexistent in places without Wi-Fi or a strong 3G/4G signal. Regardless, your captured video will be saved locally on your device until you've got a good enough signal to upload offsite.
Set Videos to "Private"
Both apps allow you to set your account to automatically upload videos as "private" (only you can see them) or "public" (everyone can see them). But until police are no longer free to raid the homes of citizens who capture and upload YouTube videos of them going berserk, it's probably wise to keep your default setting to "private."
With a little bit of practice you should be able to pull your smartphone from your pocket or purse, turn it on, enter your passcode, open the app, and hit record within 10 seconds. Keep your preferred app easily accessible on your home screen to save precious seconds. But don't try to shave milliseconds off your time by disabling your passcode.
Both apps share an important feature that allows your video to be saved if your phone is turned off-even if you're still recording. So if you anticipate that a cop is about to grab your phone, quickly turn it off. Without your passcode, police won't be able to delete your videos or personal information even if they confiscate or destroy your phone.
With the iPhone 4 and Samsung Galaxy Android devices I tested, when the phone is turned off the Qik app immediately stops recording and uploads the video offsite. But if the phone is turned off while Bambuser records, the recording continues after the screen goes black.
This Bambuser "black out" feature is a double-edged sword. While it could easily trick cops into thinking you're not recording them, using it could push you into more dangerous legal territory. As previously mentioned, courts have shown a willingness to convict citizens for secretly recording police. So if you're somehow caught using this feature it might be easier for a prosecutor to convince a judge or jury that you've broken the law. It's up to you to decide if the increased legal risk is worth the potential to capture incriminating police footage.
Other Recording Options
Cameras lacking offsite recording capability are a less desirable option. As mentioned earlier, if cops delete or destroy your footage-which happens way too often-you might lose your only hope of challenging their version of events in court. But if you can hold on to your camera, there are some good options.
Carlos Miller is a Miami-based photojournalism activist and writer of the popular Photography is Not a Crime blog. While he carries a professional-end Canon XA10 in the field, he says "I never leave home without a Flip camera on a belt pouch. It's a very decent camera that's easier to carry around."
The top-of-the-line Flip UltraHD starts at $178, but earlier models are available for $60 on Amazon. All flip models have one-button recording, which allows you to pull it out of your pocket and shoot within seconds. The built-in USB then lets you upload video to YouTube or other sharing sites through your PC.
Small businessman and "radical technology" educator Justin Holmes recommends the Canon S-series line of cameras. In 2008, his camera captured a police encounter he had while rollerblading in Port Dickenson, New York. His footage provides an outstanding real-life example of how a calm camera-toting citizen can intelligently flex their rights.
"I typically carry a Canon S5-IS," Holmes says. "But if I was going to buy one new, I'd go for the SX40-HS. If I were on a budget and buying one used, I'd go for S2-IS or S3-IS." The features he regards as essential include one-touch video, high-quality stereo condenser microphones, fast zoom during video, and 180x270 variable angle LCD. But the last feature he regards as "absolutely essential." With it the user can glance at the viewfinder while the camera is below or above eye level.
Rule #7: Don't Point Your Camera Like a Gun
"When filming police you always want to avoid an aggressive posture," insists Holmes. To do this he keeps his strap-supported camera close to his body at waist level. This way he can hold a conversation while maintaining eye contact with police, quickly glancing at the viewfinder to make sure he's getting a good shot.
Obviously, those recording with a smartphone lack this angled viewfinder. But you can get a satisfactory shot while holding your device at waist level, tilting it upward a few degrees. This posture might feel awkward at first, but it's noticeably less confrontational than holding the camera between you and the officer's face.
Also try to be in control of your camera before an officer approaches. You want to avoid suddenly grasping for it. If a cop thinks you're reaching for a gun, you could get shot.
Becoming a Hero
If you've recently been arrested or charged with a crime after recording police, contact a lawyer with your state's ACLU chapter for advice as soon as possible. (Do not publicly upload your video before then.) You may also contact Flex Your Rights via Facebook or Twitter. We're not a law firm, but we'll do our best to help you.
If your case is strong, the ACLU might offer to take you on as a litigant. If you accept, your brave stand could forever change the way police treat citizens asserting their First Amendment right to record police. This path is not for fools, and it might disrupt your life. But next time you see police in action, don't forget that a powerful tool for truth and justice might literally be in your hands.
Image credit: John Moore / Getty Images News
Steve Silverman is the founder & executive director of FlexYourRights.org and co-creator of the film 10 Rules for Dealing with Police.
Videotaping Police – What are your Rights?
Following a number of incidents in which individuals were arrested for videotaping police officers, a federal appellate court has ruled that filming government officials while on duty is protected by the First Amendment, as most of the arrestees have claimed, but the ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico.
Police departments across the U.S. have long asserted that citizens don’t have the right to videotape officers while they conduct official duties. The issue has become especially heated in the last few years because a growing number of law-abiding citizens have gotten booked for taping officers at work.
One of the cases made it up to the U.S. Court of Appeals for the First Circuit, which recently ruled that police can be recorded while they’re working. The case involves an attorney, Simon Glik, arrested and charged with violating a wiretap statute in 2007 for using his cell phone to record Boston police officers making an arrest.
When a state court dismissed the charges against Glik, he filed a civil rights lawsuit in federal court claiming that Boston Police officers violated his First Amendment rights by stopping him from recording and his Fourth Amendment rights by arresting him without probable cause. Boston Police asked the court to dismiss the case based on qualified immunity from lawsuits as officers acting within the scope of their duties.
But the federal appellate court settled the issue, ruling that the filming of government officials engaged in their duties in a public place fits comfortably within the principles of protected First Amendment activity. The court also noted that police officers are to expect to deal with certain “burdens” as citizens practice First Amendments rights.
According to this ACLU link, the settlement follows a landmark ruling August 26, 2011 by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The First Circuit’s ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.
The Massachusetts wiretap statute prohibits only secret recording of audio. The First Circuit in Glik’s case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment’s guarantee against false arrests.
“The law had been clear for years that openly recording a video is not a crime. It’s sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions,” said Glik.
THE ACLU EXPLAINS THE U.S. COURT OF APPEALS FOR THE FIRST CIRCUIT\'S RULING
A lot of information at this link below. An important section reads:
“Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a conversation.
However, all but 2 of these states—Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.”
7 RULES FOR RECORDING THE POLICE
Florida Reporter Recording Guidelines
VIDEOTAPING POLICE – A RESPONSE FROM A TAMPA LAW FIRM
FLORIDA LAW REVIEW OF GLIK CASE DECLARES THE COURT DID NOT DEFINE \"PUBLIC SPACE\"
In light of the U.S. Court of Appeals for the First Circuit ruling, the NJ Chapter of the ACLU has now created an APP to secretly record police and upload it directly to the ACLU site.
“Police often videotape civilians and civilians have a constitutionally protected right to videotape police,” said Alexander Shalom, ACLU New Jersey Police Council, to NJ.com. “When people know they’re being watched, they tend to behave well.”
Now it’s the citizens turn to say to the police “If you’re not doing anything wrong, you have nothing to worry about”.
GET THE ACLU APP TO VIDEOTAPE POLICE
GLIK v CUNNIFFE
In Summary, because the First Circuit’s ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, there is still no clear cut ruling of how your local circuit court would find if you were arrested for video taping police. There is now case law to point to but the Florida Law Review of the Glik case (link above) states the First Circuit did not “define public space” and therefore is open for interpretation. With all the information above, it appears video taping police still comes with risk of arrest.
Disclaimer: This post does not constitute legal opinion or advice but rather links to information, various facts, different sources and opinions the reader can add to his or her own research. CPF suggests staying informed and updated as new information and case law is regularly created. As of today, there is not a uniform national ruling on this subject.