Francis Pusok and Walter Scott Illustrate the Continued Need to Preserve the Right to Film

As if the recent current events surrounding Eric Garner and Michael Brown were not enough, this month saw two more high profile cases detailing police misconduct and brutality which made national news.  In South Carolina, the tasering and shooting of Walter Scott occurred as he was running away from the police was shot on a cell phone by a bystander named Feidin Santana.  In our own San Diego, a local NBC affiliate chopper captured the brutal beating of Francis Pusok in the desert.  Both instances would not have come to light had a third party not captured it with a camera.

As the public’s trust in police dwindles, citizens are taking matters into their own hands by increasing their use of cellphone recordings as a means to advance some accountability.  As police begin to feel more uneasy about this increased use of cell phone and camera recordings, many citizens are finding themselves in hot water for recording their own interactions with police, or police interactions with another third party.  This is not the first time the issue of a citizen’s right to record police has come up, and it certainly will not be the last.

What Does the U.S. Constitution Say About Recording Police?

In every state, recording the police in their public duties is a constitutional right.  Generally, a citizen has a 4th Amendment right to record police in public and at public protests unless police have probable cause to believe that s/he has committed or is in the process of committing a crime.  Further, while most states have their own variations of wiretapping laws or laws prohibiting voice or video recordings of communications without the permission of all the parties to the communication, one may still have a 1st Amendment right to record the public activities of police, which would trump state law.  The 1st Amendment right to record the police performing their duties in public has been recognized by several courts, including the 1st Circuit, in Glik v. Cunniffe.  However, the 1st Amendment does not allow one to impede on an officer’s activities or break other applicable laws

What Does California Law Say about Recording Police?

California law specifically deciphers between a public and private conversation/interaction.  It is a criminal act to record or eavesdrop on confidential communications, like private phone calls, private chats, without the consent of all parties to the conversation. See Cal. Penal Code § 632.  This means one may not record a private conversation where there is an objectively reasonable expectation that no one is eavesdropping. See Flanagan v. Flanagan.  However, you may record the police while they are out in public performing their civic duties, and you are not impeding on their ability to do their job.  In fact, S.B. 411 was just introduced by Senator Lara last month,  which would codify Californian’s rights to record the police.  The proposed language makes clear that recording does not constitute reasonable suspicion to detain a person or probable cause to arrest.

San Diego Criminal Defense Lawyer

The Law Offices of David M. Boertje handles all misdemeanor and felony criminal cases including charges of evading a police officer and charges of impeding a police officer’s activities.  We are dedicated to protecting your constitutional rights and freedom, and have successfully represented many defendants, including those with criminal charges for resisting arrest, evading a police officer, or impeding a police officer’s activities.  If you have been arrested and charged with a crime, contact attorney David Boertje today for a free consultation.