Your Right to Record the Police
Lately, the news has been filled with stories about police/citizen interactions. When the police confront citizens as part of their work and something happens to the citizen, it becomes a news story and part of our national discourse. You know the names of the people. A couple of times, those names have been local, most notably with Clarence Beard in 2006. The bottom line is that the police exist to serve and to protect us, but sometimes our interactions with them go wrong. Sometimes, Officers act in inappropriate ways. They are human like us, after all, and we sometimes do the wrong thing, too.
While the law is usually on the side of the police, there is one thing that has equalized the playing field when our interactions with them occur: our cell phones. The devices that we use to provide audio and video recordings of our interactions with the police have given an alternative story to the ones sometimes provided by the Officers themselves.
Hopefully, you never need to do it to keep the police honest. Occasionally, though, you might. Without video, we might not know what actually happens when someone dies in police custody. Like when a teenage boy caught a police officer shooting an unarmed man in North Charleston, South Carolina last year.
As people record the police more and more, the conversation is brought up more often. What are your rights in those situations? Can you record your interactions with police? Can they take your phone or camera away from you? What should you do with your recordings once the situation is over?
The answers to all of these questions is that it depends. The answers for this type of situation are very situational. Regardless, there are a few principles that are probably going to be upheld in a Virginia court. Generally speaking, you can record the police on your cell phone if the Officers are in public view, and there is no expectation of privacy. The key is to make sure that you are not interfering with the police officer’s work. And, of course, "interfering" is a judgment call that can be made by the police officer at the scene. Depending on the facts, you could be charged with obstruction of justice. Remember, there is a very big difference between being charged with a crime and being convicted of a crime.
A police officer might have a different interpretation of the situation than you do.
In The Atlantic last year, one tactic discussed was “the back-up game.” If a person is asked by the police to back away from the scene, the person doing the recording is encouraged to take one step back. The key is strict compliance of the law, the article says. By taking one step back, the citizen is obeying. This can be dangerous, and, again, the best course of action hinges on the situation itself. It might be best to immediately stop recording and leave the scene. Discernment is important.
If you are trying to record in or around a crime scene, you will probably be asked to stop. If you are preventing the police officer from conducting his or her work or tampering with evidence in any way, you are in the wrong. You cannot break any laws while you are attempting to record the police.
Police officers understand that the frequency of citizens recording them is only increasing. In theory, this should make them a little more careful; they should also understand your rights to record a little more than they might have a decade ago. Even so, the police are people, too. As people, they are prone to emotional outbursts, especially if their work in that moment has their adrenaline surging. It can be tricky.
This post is not designed to be pro-police or anti-police. Rather, it is designed to help you understand your rights as a citizen. Ideally, you, or someone you know, will never have to interact with the police in a way that makes you feel like you have to record what is happening. If you do end up in that situation, however, remember that you are generally allowed to record what is happening as long as the police officer is doing his or her work in a public place and you are not interfering with that work in any way.
If you end up in a situation where your rights to record have been questioned by authorities, or you have been charged with a crime as a result, you will need a good defense attorney. If this is you, call or e-mail today for a free consultation!
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