Recommendation 6.1: Clearly instruct officers about the public’s right to record law enforcement activities.

Documenting police activities fosters public confidence and trust, increases police accountability, and safeguards public and officer safety. Some officers may not like being photographed or recorded on the job, but departmental policies should nonetheless recognize and respect the public’s right to record police activity.

At the same time, these policies should reflect the fact that the public does not have the right to observe or record officers in a way that impedes their ability to do their jobs. Individuals who record police activity are subject to laws that prohibit physically obstructing an officer, putting public and and officer safety at risk,[i]trespassing, surreptitious recording, and other activities.[ii]

Departments should implement policies that detail how officers should respond when recorded, and officers should be trained accordingly.

Departments should ensure that officers:

• Treat all people with courtesy and respect.
• Verbally acknowledge the public’s right to film or photograph police activity.
• Give individuals a reasonable opportunity to comply with orders or requests before taking action.
• Recognize that those who record police activity are under no obligation to share their photos, footage, or other forms of documentation.

Departments should prohibit officers from:

• Presuming recording devices are a threat to their safety.
• Intentionally obstructing, threatening, or otherwise discouraging an individual from recording.
• Telling individuals to back away, unless they are interfering with their job or are at risk of injury (g., advising someone to back away from a subject wielding a knife).
• Telling individuals to stop recording or to leave the area. (If people are interfering with an officer’s job, the officer should ask them to back away.)
• Detaining individuals who are (or were) recording unless they have an independent legal basis for doing so. (Officers may ask individuals to share recorded material, but they can’t detain them without reasonable suspicion they engaged in criminal activity.)
• Seizing recording devices without a warrant or exigent circumstances.
• Coercing individuals to consent to the search or seizure of their recording devices or recorded material. (For more detail, see Chapter 3.)
• Destroying footage or other recorded material or threatening to do so.

 

The Minneapolis Police Department’s policy on public recordings of police:

 

• Prohibits officers from asking people who are recording to identify themselves or explain why they are recording.

 

• Prohibits officers from trying to prevent people from recording or discouraging them from recording if they are not interfering with their duties.

 

• Requires officers to ask supervisors to come to the scene before trying to review a recording or asking for consent to do so.

 

Source: Public Recording of Police Activities, Minneapolis Police Dep’t Policy and Procedure Manual, Section 9-202, (2016), http://www.ci.minneapolis.mn.us/police/policy/mpdpolicy_9-200_9-200.

 

Policies that prohibit officers from retaliating against people who lawfully record police activity are also important. When recording police activities,community members also bear a responsibility to avoid unnecessarily escalating the situation.[iii]

Participants in public assemblies should:

• • Treat all people (officers included) with courtesy and respect.
  • Step back if directed.
  • Show they are not a threat by refraining from sudden or aggressive movements.
  • Calmly ask officers to explain why they are detaining or questioning.

Participants in public assemblies should not:

• Interfere with officers on duty or otherwise get in their way.
• Enter marked and restricted crime scenes or restricted areas that are not otherwise accessible to the public (conduct that is prohibited by law).
• Insult or threaten officers.
• Secretlyrecord police activity.
• Resist arrest or run if officers try to detain them.

Finally, the public should understand that recording people against their will, especially those in a state of crisis, may escalate an encounter and endanger the person, officers, and themselves.

[i]See, e.g., Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017) (explaining the right to record is subject to reasonable time, place, and manner restrictions); Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (same).

[ii]See Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 607 n. 13 (7th Cir. 2012) (“We are not suggesting that the First Amendment protects only openrecording. The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.” (citing Bartnicki v. Vopper,532 U.S. 514, 529 (2001)); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 1028 (2016), https://columbialawreview.org/content/free-speech-and-democracy-in-the-video-age/(“An important caveat to any asserted right to record, then, is that the right is only applicable to persons who have lawful access to the place where the recording occurs.”) (referring to S.H.A.R.K. v. Metro Parks Serving Summit County,499 F.3d 553 (6th Cir. 2007) as an example).

[iii]See, e.g., Lauren Regan, Policing the Police: Your Right to Record Law Enforcement, Civil Liberties Defense Center, (Apr. 21, 2015), https://cldc.org/news/policing-the-police; Dia Kayyali, Want to Record the Cops? Know Your Rights, Electronic Frontier Foundation, (Apr. 16, 2015), https://www.eff.org/deeplinks/2015/04/want-record-cops-know-your-rights; Legal Observer Training Manual,Nat’l Lawyers Guild, (2003), http://cldc.org/wp-content/uploads/2012/01/LO_Manual.pdf.