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 of Seattle (9th Cir. 1995) 55 F.3rd 436, 439-440.)  It is now clear, therefore, that; “(t)he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”  (Smith v. City of Cumming (11th Cir. 2000) 212 F.3rd 1332, 1333; see also Fields v. City of Philadelphia (3rd Cir. 2017) 862 F.3rd 353.)  

In addition to the above, the Ninth Circuit Court of Appeals has made it clear that private individuals have a right to photograph and film government officials in public spaces, such as U.S. Customs and Border Patrol agents at a United States-Mexico port of entry.  (Askins v. United States Department of Homeland Security (9th Cir. 2018) 899 F.3rd 1035.)  “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” (Id., quoting Smith v. City of Cumming (11th Cir. 2000) 212 F.3rd 1332, 1333.)  The issue may be whether the complained-of filming was done in a public place, or of government officials working on public property.  That’s an issue that must be decided by the trial court.  If so found, then the seizure and destruction of the plaintiffs’ photos is a violation of their First Amendment rights. 

Most recently, the federal Fourth Circuit has ruled in the case of Sharpe v. Winterville Police Department (4th Cir. 2023) 59 F.4th 674, that an officer’s attempt to prevent video “livestreaming” (as opposed to merely recording) of interactions with law enforcement also violates the First Amendment. 

Also note that as of January 1, 2016, California’s resisting arrest statutes (i.e., Pen. Code §§ 69 and 148) specifically state that photographing, videotaping, or audio recording, is not an interference with the officer’s performance of his duties.  (Subdivisions (b) and (g), respectively.) 

The United States Supreme Court has also recognized a constitutional right to gather news. (Branzburg v. Hayes (1972) 408 U.S. 665, 681.) This includes the recording by video of police officers performing their duties and distributing the video to the public, which is considered to be a news-gathering activity in that it serves the public’s First Amendment right to “receive information and ideas.” (See also Richmond Newspapers v. Virginia (1980) 448 U.S. 555, 576; and First Nat’l Bank of Boston v. Bellotti (1978) 435 U.S. 765, 783.)  

There are exceptions, although rare.  For instance, there is some authority for the argument that an airport security check point constitutes a “uniquely sensitive setting” where “order and security are of obvious importance,” and is thus entitled to greater protection than in public or out on the street.  But whether or not law enforcement officers may prohibit an uncooperative (i.e., refusing to provide evidence of his identity) suspect from recording TSA agents and other law enforcement officers at an airport security checkpoint remains an open question, at least providing officers with qualified immunity from civil liability when they seize the suspect’s camera over his objection and delete (or attempt to do so) the contents.  (See Mocek v. City of Albuquerque (10th Cir. 2015) 813 F.3rd 912.)  

Another possible restriction on a private citizen’s right to photograph or videotape law enforcement is when it is done at the scene of an emergency.  Pursuant to P.C. § 402(a)(1), it is a misdemeanor when a “person who goes to the scene of an emergency, or stops at the scene of an emergency, for the purpose of viewing the scene or the activities of (listed emergency and/or military) personnel coping with the emergency in the course of their duties . . . , unless it is part of the duties of that person’s employment to view that scene or those activities (e.g., news personnel), and thereby impedes (the listed emergency and/or military) personnel, in the performance of their duties in coping with the emergency.”  The only case law discussing section 402 is an attorney general opinion (67 Ops.Cal.Atty.Gen. 535) where the A.G. determined that local law enforcement officers have independent emergency powers under 402 to restrict entry to an area damaged by an earthquake while a threat exists to public health and safety as reasonably determined on a case-by-case basis.  Based upon this, where all the elements of section 402 are present, and while employing the general rules of “reasonableness,” it may be assumed until some court holds otherwise that the important governmental interest in maintaining control of, and to function efficiently at, the scene of an emergency outweighs a private individual’s First Amendment rights (with the exception of news personnel) to take photographs of law enforcement or other emergency personnel at such a scene.  

Generally, therefore, absent rational and defensible safety or security concerns, the general rule is quite simple: Private citizens have a constitutional right to photograph, record, and/or videotape officers performing their law enforcement duties, at least when in public places. For a law enforcement officer to attempt to stop a person from doing so, or worse yet, confiscate his or her cellphone or other recording device, will likely get you sued.