State laws do not specifically say that it is legal to videotape police, but courts around the country have agreed that it’s legal under the First Amendment — even during protests or during traffic stops. However, like most legalities there are some limitation.
According to the ACLU, there are two questions you should ask before starting to taping:
Are You in a Public or Private Space?
In general, you are allowed to record on-duty police in public when you’re legally authorized to be there, the police activity is in plain view, and you’re openly recording them and not attempting to do in secret.
However, police officers may legally order you to cease activities that are truly interfering with legitimate law enforcement operations, which may include your recording them. However, such operations are subject to public scrutiny, including by citizens videotaping them, according to the ACLU.
Your right to videotape police is much more limited on private property because you are subject to the whims of the private property owner’s rules. If the owner does not want you to record the police, he or she can order you off the property and even have you arrested for trespassing if you don’t comply.
When videotaping police, take the following steps to ensure you’re in the legal clear:
- Tell police you are recording them;
- Comply with their requests to step back or identify yourself;
- Keep your camera out of the way (low and close to your body); and
- If need be, calmly remind them of your right to film them.
When Can Police Search Your Footage?
When it comes to your actual footage, police generally cannot confiscate or demand to view your video without a warrant. In addition, officers cannot delete your video under any circumstances. But there are certain situations where the law is unsettled.
For example, it’s unclear whether police have the constitutional power to search cell phones — including videos — following an arrest. The U.S. Supreme Court will soon weigh in on this very question.
It is also unsettled whether police need a warrant to seize a camera if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves.
Because the legality of videotaping police is fact-specific and may depend on your jurisdiction, you’ll want to consult an experienced civil rights lawyer to discuss your specific situation.