Can Citizens Record Police? Know the Limits of the First Amendment and Officer Authority

By Robert Phillips, Deputy District Attorney (Ret)

Recording, Photographing, or Videotaping Law Enforcement Activity

It is not unusual nowadays—what with everyone being “armed” with their own personal video camera in the form of a cellphone—for individuals to show up at the scene of some police activity and attempt to record the incident.  Occasionally, the officer involved in such an incident takes “umbrage” (i.e., “offense or annoyance”) at the private citizen’s attempts to do so, and confiscate the phone and/or maybe even arrest the person.  (“For what ,” you might ask. Pen Code § 148 , maybe.) The purpose of this short editorial is to remind you that as a general rule; (a) the citizen has a constitutional right to do so, and (2) you have no right to stop him let alone confiscate his or her cellphone.  The case law is quite clear on this issue: 

A private citizen has a First Amendment right to videotape public officials, including, but not limited to, police officers and other law enforcement officers while in a public place. (Gericke v. Begin (1st Cir. 2014) 753 F.3rd 1; Askins v. United States Department of Homeland Security (9th Cir. 2018) 899 F.3rd 1035, 1043-1044; Irizarry v. Yehia (10th Cir. 2022) 38 F.4th 1282.)  Arresting a person under such circumstances has been held to be a violation of the citizen’s Fourth Amendment search and seizure rights.  (Glik v. Cunniffe (1st Cir. 2011) 655 F.3rd 78, 82-84.)  It has also been held that a state’s eavesdropping statute that attempts to prohibit the recording of another without the consent of all parties, cannot be used to prevent the audiovisual recording of police officers performing their official duties in a public place, at least when the officers are speaking at a volume audible to bystanders.  Use of such a statute has been held, under these circumstances, to violate the citizen’s First Amendment’s right to free-speech and free-press.  (ACLU v. Alvarez (7th Cir. 2012) 679 F.3rd 583: “The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” See also Fordyce v. City ....

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