Do I Have A Right To Record The Police?

In a nutshell, you presently have a First Amendment Constitutional right to audio or video record the police. “Presently” because all of the United States Court of Appeals who have weighed-in on this issue have held that the First Amendment to the United States Constitution protects a civilian’s right to record the police; save the Eighth Circuit Court of Appeals in Akin v. Knight.

Therefore, unless you live within territorial jurisdiction of the the United States Court of Appeals for the Eighth Circuit (North Dakota, South Dakota, Nebraska, Iowa, Missouri and Arkansas), you presently have a First Amendment right to record the police. “Presently”, as there is now filed a Petition for Certiorari filed with the U.S. Supreme Court from the Eight Circuit’s Akins v. Knight, (No. 16-3555) (8th Cir. 2017) Opinion, to finally decide whether the First Amendment protects the public’s right to record the police. However, the U.S. Supreme Court has never decided this issue any may agree to take up the in Matthew Stephen Akins v. Daniel K. Knight, et al., No. 17-6992.

YOUR RIGHT TO RECORD IN THE WESTERN STATES.

Just because the Ninth Circuit Court of Appeals has held that one has a First Amendment right to record the police, that doesn’t mean that California police officer still didn’t arrest civilians for doing just that. In California, the police were unconstitutionally arresting so many people However, just because the Ninth Circuit Court of Appeals has held that one has a First Amendment right to record the police, that doesn’t mean that California police officer still didn’t arrest civilians for doing just that. In California, the police were unconstitutionally arresting so many people that the California legislature had to literally spell out for California peace officers that they cannot arrest a civilian for recording their conduct. They did this by amending Cal. Penal Code § 148(a)(1) (Resisting / Obstructing / Delaying a Peace Officer), and Cal. Penal Code § 69 (using or threatening use of force upon officer to prevent or deter them from performing duties) to state:

(g) The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.

That means that in the geographical territory of those federal judicial appellate circuits that have decided that you have such a First Amendment right (i.e. United States Court of Appeals for the 1st, 3rd, 4th, 7th, 9th and 11th Circuits), you have a clearly established right to record the police. See, (First Circuit Court of Appeals) Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) and Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014), (Third Circuit Court of Appeals) Fields v. City of Philadelphia, 862 F.3d 353 (2017), (Seventh Circuit Court of Appeals) ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), (Ninth Circuit Court of Appeals) Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) and (Eleventh Circuit Court of Appeals) Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) .

As shown above, the only federal Circuit to hold otherwise is Akin v. Knight, (No. 16-3555) (8th Cir. 2017)

As a general proposition, a person may record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (words “likely to cause a fight” are not afforded First Amendment protection); see also Louisiana ex rel. Gremillion v. National Ass’n for the Advancement of Colored People, 366 U.S. 293, 297 (1961) (“criminal conduct . . . cannot have shelter in the First Amendment”). As a general proposition, a person may record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (words “likely to cause a fight” are not afforded First Amendment protection); see also Louisiana ex rel. Gremillion v. National Ass’n for the Advancement of Colored People, 366 U.S. 293, 297 (1961) (“criminal conduct . . . cannot have shelter in the First Amendment”).

Courts have held that speech is not protected by the First Amendment if it amounts to actual obstruction of a police officer’s investigation – for example, by tampering with a witness or persistently engaging an officer who is in the midst of his or her duties. See Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972) (individual’s speech not protected by the First Amendment where individual persistently tried to engage an officer in conversation while the officer was issuing a summons to a third party on a congested roadside and refused to depart the scene after at least eight requests from officers); King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (individual was not engaged in protected speech when he repeatedly instructed a witness being questioned by a police officer not to respond to questions.

However, the Supreme Court has held several times that mere verbal protest or verbal challenge of police orders and actions are also protected by the First Amendment. See, City of Houston v. Hill, 482 U.S. 451 (1987), Courts have held that speech is not protected by the First Amendment if it amounts to actual obstruction of a police officer’s investigation – for example, by tampering with a witness or persistently engaging an officer who is in the midst of his or her duties. See Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972) (individual’s speech not protected by the First Amendment where individual persistently tried to engage an officer in conversation while the officer was issuing a summons to a third party on a congested roadside and refused to depart the scene after at least eight requests from officers); King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (individual was not engaged in protected speech when he repeatedly instructed a witness being questioned by a police officer not to respond to questions.

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers. See, Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). The First Amendment protects the public’s right of access to information about their officials’ public activities. It “goes beyond protection of the press and the self – expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l. Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978).

Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, “the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)); Garrison v. Louisiana, 379 U.S. 64, 77 (1964) (recognizing the “paramount public interest in a free flow of information to the people concerning public officials, their servants”). Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers. See, Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).

The First Amendment protects the public’s right of access to information about their officials’ public activities. It “goes beyond protection of the press and the self – expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l. Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978). Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, “the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)); Garrison v. Louisiana, 379 U.S. 64, 77 (1964) (recognizing the “paramount public interest in a free flow of information to the people concerning public officials, their servants”).

Accordingly, at least for the time being, you cannot be arrested for recording the police unless you are so close or are doing something else that meaningfully interferes with lawful police action.

WHAT TO DO.

If you want to know what do to if you’ve been falsely arrested, retaliated against for exercise of your constitutional rights, beaten-up by the police or maliciously prosecuted, please contact us at (949) 474-1849 or jerrysteering@yahoo.com. Thank you for visiting with us, and best of luck. Even if you have a legal question that’s important to you, and you just need lawyer input, we’ll be glad to answer your questions.
Thank you again for visiting with us.
Jerry L. Steering, Esq.,
Suing Bad Cops And Defending Bogus Criminal Cases Since 1984
Law Offices of Jerry L. Steering, 4063 Birch Street, Suite 100, Newport Beach, CA 92660; (949) 474-1849; Fax: (949) 474-1883; email: jerrysteering@yahoo.com
Jerry L. Steering with Diane Sawyer, Co-counsel* Bob Dole, and former partner** Melvin M. Belli