Filming “camera-shy” cops—crime or constitutional right?

Photo by Timothy Krause (Flickr)

This article is the first in a three-part series on citizens’ rights when interacting with police.

Law enforcement officers serve and protect the public, but the relationship between police and civilians has not always been peaceful.  In 1991, officers from the Los Angeles Police Department beat Rodney King after a high-speed chase.  A bystander, George Holliday, videotaped the violent interaction, and the story quickly achieved national notoriety.  More recently, in July 2014, the New York City Police Department came under fire after officers used a chokehold on a civilian.  Forty-three-year-old Eric Garner had asthma and weighed an estimated 350-400 pounds.  In cell phone footage captured by a witness, Garner can be heard telling officers, “I can’t breathe.”  He ultimately died as a result of the incident.

Unfortunately, these are not isolated events; new video featuring improper police conduct surfaces almost every week.  While the ubiquity of video-capture technology today has certainly fostered public awareness and debate, it has also created new questions.

One issue facing state courts is whether civilians have a legal right to record law enforcement officers in the course of their duties.  In March 2014, the Illinois Supreme Court struck down the state’s eavesdropping law, which made it a felony to record another person’s words without his or her consent.  Although the original purpose of the law was to protect people’s private conversations, it was more commonly used to prevent people from recording their interactions with police officers.  In two unanimous decisions, the Court held that the law was overbroad and a violation of the First Amendment right to free speech because it criminalized the recording of public encounters, for which there can be no reasonable expectation of privacy.

In December 2014, the Illinois General Assembly responded by passing a new version of the eavesdropping law.  The bill makes it a felony to record any private conversation, defined as “any oral communication between two or more persons,” where at least one person involved has a reasonable expectation of privacy.  Although legislators hoped that the bill would address the constitutional flaws of its predecessor, critics believe that the addition of ambiguous and unclear terms may worsen the problem.

Notably, not every jurisdiction criminalizes this type of “eavesdropping.”  In the wake of public outrage following Eric Garner’s death, the New York City Police Department issued a memorandum to remind officers that citizens may legally record their interactions with law enforcement.  Officers may only intervene only if the videographer interferes with police operations.

According to the ACLU, people have a constitutional right to photograph things that are “plainly visible,” including police and other government officials in the course of their duties.  A number of U.S. Courts of Appeals—including the First, Seventh, Ninth, and Eleventh Circuits—agree, holding that the First Amendment grants a right to publicly record such officials without their consent.  Additionally, although a visual photograph is legally distinguishable from the audio portion of video footage, the ACLU believes that the First Amendment protects both.  Nonetheless, some states have tried to regulate such audio via their wiretapping laws.

As for North Carolina, the U.S. Court of Appeals for the Fourth Circuit has declined to hold that a First Amendment right to record was “clearly established,”  nor has it rejected the existence of such a right.  However, Jeff Welty, blogger for the UNC-Chapel Hill School of Government, explains that an illegal surveillance charge would probably not succeed in this state.  First, North Carolina is a one-party consent state.  This means that, pursuant to N.C. Gen. Stat. § 15A-287(a)(1), if one party to a communication consents to its recordation, the action is lawful.  Second, it is only illegal to intercept an oral communication that is “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . .”  According to Welty, police-civilian interactions are unlikely to be subject to such an expectation of privacy.

Unless the United States Supreme Court addresses the issue, it will be for each jurisdiction to determine whether citizens may record their interactions with law enforcement officers.  So far, it seems that the answer depends on whether the court looks to the First Amendment or the state’s wiretapping statute.  Regardless, police-civilian interactions may implicate the First Amendment in numerous other ways.