The First Amendment Right to Photograph/Videotape the Police and Confiscating Video Evidence (AN UPDATE)

By Robert C. Phillips
DDA (Ret.)
March, 2023

The Question:

I am periodically asked either or both of two sometimes related questions:

1. If a private citizen seeks to record, videotape, or photograph a law enforcement officer while the officer is acting in the performance of his or her duties, what options are available to the officer

2. Does a law enforcement officer have the legal authority to seize from private citizens recorded, videotaped, or photographic evidence depicting (a) the officer in the performance of his or her duties, and/or (2) the criminal acts of others  

Such recordings, videos or photographs are commonly contained in a private citizen’s video camera, iPad, or more often than not, cellphone.  The recording, video or photographic evidence typically is recorded by a private citizen (although it may be the suspect himself) who either happened upon the scene of some incident, is a participant in a public protest or demonstration, or is the person an officer seeks to detain and/or question.  Often, the recording, video, or photo is of a criminal act in progress, of an attempted consensual contact, detention, or physical arrest of a person, or of an ....