Smile, officer, you're on video

By John Bendel, editor-at-large

Feel tempted to make a video of the police officer who just pulled you over?

Consumer technology is making it easier all the time. Soon you won’t even have to reach into your pocket for a smartphone. Google Glass, while it did not catch on, was just the first of much wearable technology. In fact, Sony and others are working on the next generation of Google Glass-like devices. Beyond that are a plethora of miniature video devices that can be worn concealed as well as the obvious wearable cameras like the popular GoPro. In order to video police, you only have to look at them.

According to most legal experts, you have every right to point your camera, whatever form it might take, at cops on duty as long as you’re in a public place, like the street. If you’re lucky, the police are aware of that right and act accordingly.

Take the officer who pulled over trucker Brian Miner in 2014. Miner captured the entire encounter in a video that went viral on YouTube and even made a number of news broadcasts. Miner had honked his horn at a state trooper who passed him at high speed while using a cellphone. In their recorded conversation, Miner stuck to his position that he had done nothing wrong. The officer ultimately declined to cite him for anything.

But with or without a camera, few road stops end with officers backing down. In fact, some encounters end badly simply because someone tried to use video.

No matter how well established the right to photograph police may be, people still get arrested for it. According to the American Civil Liberties Union, despite decades of dropped charges and dismissed cases, some police simply haven’t gotten the message or choose to ignore it.

“Individual cases keep popping up around the country,” said Jay Stanley, senior policy analyst for the ACLU in Washington, D.C.

Not long ago, Stanley helped the ACLU defend a libertarian group whose members were arrested while recording police and public officials in front of a federal courthouse. In a blog on the ACLU website, Stanley wrote this:

“There is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining, and arresting those who fail to comply. The ACLU, photographers’ groups and others have been complaining about such incidents for years – and consistently winning in court. Yet a continuing stream of incidents of illegal harassment of photographers and videographers makes it clear that the problem is not going away.”

In fact, the problem gets more complicated, particularly when it involves video. That’s because most video devices also record sound. Your right to take pictures is well-established in law. Your right to record someone else’s conversation is much less clear. When you record people’s voices, you could be in violation of another set of laws altogether – eavesdropping statutes. In many states, eavesdropping law covers wire tapping and other means of electronic spying. In order to protect the public, it is often the case that at least one person in a conversation must give permission to record.

Eavesdropping law mixes uncomfortably with your right to both photograph and record police on duty in public. A federal court decision in December of 2013 recognized a basic right to record police. But because many eavesdropping statutes still apply, you may not be allowed to record police surreptitiously. Your recording device must be visible or you must inform the police that they are being recorded. That’s the case in Illinois (see sidebar) among other states.

Because laws vary from state to state, there appears to be no central source to learn about audio recording rights. However, the ACLU offers a guide to your photography rights. Here’s a brief edited version:

• In public spaces you have the right to photograph anything in plain view. That includes pictures of federal buildings, transportation facilities and police.

• On private property you can be arrested for trespassing if the owner objects to what you are doing or to your presence at his or her option.

• Police may not confiscate or demand to view your photos or video without a warrant.

• Police may not delete photos or video nor can they take your memory card.

• Police officers may order you to stop activities that are interfering with legitimate law enforcement operations. The right to photograph does not give you a right to break any other laws.

You’ll find the full version at aclu.org/kyr-photo.

What should you do if you attempt to legally photograph or video police and you are stopped or your device is confiscated?

The ACLU and other organizations concerned with the issue urge standing up for your rights. That can mean everything from calmly advising cops of the law to pursuing the issue in court.

Those people are advocates and probably draw regular salaries. They may have options that you do not. Going to court costs money many of us don’t have, so during that actual stop or confrontation with police, tread carefully. The law may be whatever the officer says it is – at least for all practical purposes.

But just for the record, do you have the same right to record police from the cab of your truck as you would standing in a public place?

“Yes,” said the ACLU’s Jay Stanley. “You can turn your camera on a police officer if you’re in your vehicle.” LL