Often using a cell phone or camera, people in several cities (Boston, Albany, Chicago) have attempted to record police engaging in legally-dubious behavior, only to have their recording devices smashed or confiscated, and themselves handcuffed and charged with felonies carrying 5-year prison sentences.
The court cases and outcry from civil liberties groups that have resulted from these incidents have raised the question of whether recording the police should be considered a protected right under the First Amendment guarantee of free speech.
Most of the arrests that the police have made in this vein have been under "illegal wiretapping" and "secret eavesdropping" laws, contending that a citizen who records them conducting police business is violating their rights to privacy.
By and large, however, the courts have decided against the police in these instances and have upheld the legality of recording police activity that occurs in public venues.
In general, the question revolves around whether or not the recording was being done "secretly," or openly, so that the person being recorded was aware of it. In many states it is not illegal to record someone without their consent or knowledge, while other states explicitly prohibit this.
To find out the relevant laws governing the recording of another person (including police) in your state, see the Reporters Committee for Freedom of the Press's "State-by-State Guide", which provides summaries of the relevant "wiretapping" laws for each of the fifty states.
As a general rule of thumb, however, it is best to follow these simple steps to ensure that when you record the police, you will be engaging in legally and constitutionally protected activity.
1) Record the police in a public location. The laws governing the recording of another person on private property are much more complex and difficult from the standpoint of the person doing the recording.
2) Do not conceal the fact that you are recording the police. In fact, make it obvious! In every state in the country, it is legal to record another person in a public location as long as they are aware that you are doing so (i.e., it is not being done "secretly"). This is very important, as is evidenced by the following case, referenced by the Citizen Media Law Project:
In a recent case, a political activist was convicted of violating the wiretapping statute by secretly recording video of a Boston University police sergeant during a political protest in 2006. The activist was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the court ordered the defendant to remove the footage from the Internet. From this case, it is clear that you can violate the statute by secretly recording, even when you are in a public place.
In contrast to the above case, there is a more recent case of a Boston law student who was arrested in 2007 for recording the police harassing and assaulting a man on the Boston Common. However, in this situation, all charges were dismissed against the law student, making this court decision an important precedent in securing the right for Massachusetts citizens to record police in public locations, as long as the recording is being done "openly" and in a way that would be deemed "obvious to a reasonable person."
The actual wording of the court ruling in this latter case can be accessed here. Additionally, if interested, one can click here to access the court filing on behalf of the law student who is now suing the police for violating his civil rights.
To view the exact Massachusetts law on "illegal wiretapping," which covers the act of recording another person, you can see it here. It is also worth checking out the Citizen Media Law Project's section on Massachusetts Recording Law.
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Finally, it is worth stepping back and wondering what is behind these police attacks on concerned bystanders who take it upon themselves to observe the police. With the increasing prevalence of camera-phones and the technological advances for rapid, mass dissemination of video via services such as YouTube, the last several years has seen a veritable explosion of videos circulating on the internet, capturing cops engaging in police brutality, illegal activity, and so on.
It is therefore no surprise that police engaged in suspect activities would begin keeping an eye out for anyone who may be recording them. The ability for the police to abuse their power and act with that oh-so-common arrogant air of omnipotent impunity (not to mention the downright racist, sexist, homophobic, and bigoted actions the police regularly engage in), turns upon the extent to which they exist outside of the public eye.
If more citizens get in the habit of recording police as they engage in such activities, it has the potential to lead to the police actually being held accountable for those things they had grown accustomed to regularly getting away with.
This is what is behind the growth of police attacking bystanders who attempt to document their misconduct; it is nothing more than pure-and-simple scare tactics and bullying.
But this is also why it is so important to fight against police attempts to crack down on free speech. If we can't record their abuses, it makes it all the easier for the police to get away with committing those abuses.
It is in this spirit that I offer this article as a resource for people to use in asserting their First Amendment rights to "observe and report" police misconduct, wherever it may occur.
