General Question

RocketSquid's avatar

Why is it illegal to film police officers?

Asked by RocketSquid (3465 points ) July 26th, 2010

It is apparently illegal to film police officers. Doing so can net up to a 15 year prison sentence for “illegal wiretapping”. This applies anywhere, even public places where other laws have stated people should have “no expectations of privacy” when it comes to filming.

Why is this legal? Why is this even necessary? Has filming the police ever contributed to a crime?

I’m trying to remain unbiased here, even though this infuriates the hell out of me.

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37 Answers

JLeslie's avatar

I have never heard of such a law. I have seen footage of police officers making an arrest, or mistreating someone, and I never hear of the bystander who filmed being in some sort of legal trouble. I’m interested to see the other answers.

Dr_Dredd's avatar

I actually don’t think it is. According to what I’ve read, prosecutors who are trying to make these charges of “wiretapping” stick are overreaching. Radley Balko has a blog that discusses the issue in depth. There’s also a recent editorial in the USA Today.

Admittedly, I’m not a lawyer, so take this with a grain of salt.

RocketSquid's avatar

After doing some more reading, I ran across this. Apparently it’s only illegal in Illinois, Massachuttes and Maryland (which is still rather disturbing). Although it’s a relief it’s rather limited, it’s still a horrible idea that needs to be reevaluated.

mammal's avatar

Sounds unlikely to me

Paxan8's avatar

I want to make sure we are talking about the same thing. Video taping and wire tapping is not the same thing. Wouldn’t wiretapping require you to illegally tape someone through a wire not in the open? The only reason I can imagine this would be illegial is because states are tired of getting sued by those who have been mistreated by the cops and taped it. This sounds a little crazy.

RocketSquid's avatar

@Paxan8 In the cases where bystanders have been arrested for filming police, wiretapping is what they were charged with. I’m not exactly sure why, either

Dr_Dredd's avatar

@RocketSquid The prosecutors are trying to see if they can make it stick…

Kraigmo's avatar

In most places it’s not illegal. But a lot of individual police will consider it “interfering with police” or “interfering with an arrest”.

Every state needs to enact a law that specifically gives people the right to film on-duty police.

It’s not wiretapping. And any police or prosecutors who consider it such will be corrected in court.

Dr_Dredd's avatar

Too bad we won’t see something like this, in which a judge ordered a sheriff to take a class on the Constitution after he tramped on someone’s rights.

YARNLADY's avatar

What? I never heard of that. Here in California, it happens all the time.

Zaku's avatar

I’ve photographed the police who had arrested a political protester and gave the pictures to a civil rights lawyer, and neither the police nor the lawyer mentioned anything about it being a problem, though I didn’t feel entirely safe doing it, especially since the police had just executed a very frightening sneak attack on a group of peaceful protesters with shields, first sneaking up silently from behind on bicycles and then surrounding them with horse officers and rushing up a van to take the one they wanted away.

If someone’s trying to make filming the police illegal, it certainly shouldn’t be. The only reasons would be someone is terrified of the population, and wants to dominate and squash civil disobedience, or even expressions of public upset.

MyNewtBoobs's avatar

It’s controversial, and many people see it as a constitutional violation, but some judges are upholding it. It’s the audio on the video that violates the all-party consent wiretapping law (although, if you take a still picture there are other legal arguments for them to go with). This link explains it better than I can:

http://www.cracked.com/article_18620_6-completely-legal-ways-cops-can-screw-you_p2.html

Dr_Dredd's avatar

@papayalily Don’t most states (and the feds) have a one-party consent law?

semblance's avatar

The last I checked (several years ago) it is not illegal in Oregon. I also do not believe it is illegal anywhere in Canada. I am a lawyer, but I don’t pretend that this is a specialty of mine so it could be different elsewhere.

MyNewtBoobs's avatar

@Dr_Dredd Yes. These incidents are generally in all-party consent states. I don’t know about the feds, though.

ETpro's avatar

My own liberal state of Massachusetts is one that has put in place this Gestapo sprt of law. http://gizmodo.com/5553765/are-cameras-the-new-guns

I wonder if it is constitutional.

MyNewtBoobs's avatar

@ETpro That’s a good link too.

semblance's avatar

@ETpro – As a lawyer, I’ve been wondering that myself. However, consitutional law is not really my area. Even if it was, from what I learned in law school my opinion (which I know many will disagree with) is that there really is no analytical body of constitutional law, just a series of results in cases which maybe give you a guess on the outcome, depending on how close or far away your facts are from that case.

I digress. To get to the point, I have trouble seeing on what basis one would challenge it constitutionally. I suppose one might argue that film making is a form of expression. Restricting video taking of an event where one has a right to be arguably restricts that right of expression. A First Amendment argument, in other words. However, that doesn’t seem all that strong.

Another challenge might be a due process of law violation, but that’s an extremely vague doctrine and hard to predict the outcome.

From a moral point of view it certainly should be legal to video whatever a peace officer does so long as the video maker is where she has a right to be without general restrictions, meaning a place open to the general public or private property in which the video maker is the owner or has the consent of the owner to take videos. However, the constitutional challenges sound weak at first impression.

ETpro's avatar

@semblance I was thinking of First Amendment rights, but am not any sort of lawyer, much less a Constitutional Lawyer. Thanks for your expert info.

semblance's avatar

@ETpro – You’re welcome, but I’m really not an expert on con law. I did learn enough to pass three bar exams in three states, but that doesn’t make me an expert. For all I know I barely passed each time. (They don’t tell you your score; it’s just Pass/Fail.) Now ask me something about the mundane law of shoplifting and I can blather with authority. LOL. Best regards.

JLeslie's avatar

@papayalily and @Dr_Dredd It doesn’t make sense to me if it is in a public place and the person is audible without any equipment to augment the sound. I don’t think the need for consent applies even in states that require two party consent if it is a public place and anyone in ear shot can hear what is being said.

MyNewtBoobs's avatar

@JLeslie And there in lies the controversy – but police generally aren’t big on people filming their police brutality and posting it to YouTube, so they’re trying to find a way to make it illegal.

Espiritus_Corvus's avatar

If I have no rights to privacy in a public place, a cop shouldn’t either. Is his/her citizenship of a higher grade than mine?

Dr_Dredd's avatar

@Espiritus_Corvus Exactly. One would think they had fewer rights to privacy, since they are public officials.

gorillapaws's avatar

@semblance I was wondering about the idea of freedom of the press. With bloging and other forms of “citizen reporting,” I wonder if posting something on youTube with the intent of informing the public about the behavior of the police could be viewed as a form of journalism and protected under the 1st amendment? Perhaps there are rulings that require a stricter interpretation of what the “press” really is.

Also one might argue that documenting the circumstances surrounding your arrest could be covered under the 6th amendment.

semblance's avatar

@gorillapaws – I think that the “freedom of the press” argument is part of the First Amendment argument I referenced above. You make a good point, though. I don’t know how it would come out, but certainly the argument for freedom to video the event is stronger if the video has the purpose of dissemination to the public. The line between “journalism” and private conduct is getting rather blurry lately with the explosion of YouTube and other Internet information sources. It may take some time to straighten all of that out.

I understand your alternative argument, but I think that falls more under the due process of law consideration I referenced elsewhere.

As I said earlier, I think consitutional law is more a body of results than an analytical framework. Except for gun ownership rights the trend of the US Supreme Court seems to have been to restrict, not expand, individual liberties when it comes to a face off against the police. So, personally, if state law prohibits making a video of the police I am not real optimistic about the common citizen winning the case. It could happen though.

gorillapaws's avatar

@semblance thanks for taking the time to share your expertise with us. I know I learned something.

As for the 6th amendment, I was thinking in terms of the right to provide a “digital objective” witness.

ETpro's avatar

@semblance I wonder if @Espiritus_Corvus doesn’t have the perfect Constitutional argument to overturn these protect-police-brutality laws. If I am not entitled to privacy in a public place, why is a police officer. Does that not violate equal protection under the law as well as infringe on our first ammendment rights as film makers?

semblance's avatar

@ETpro – Well, maybe, but all of you keep looking for a reasoned analysis. As I’ve tried to make clear, in my opinion I think the US Supreme Court mostly figures out how it wants the case to come out. Working backwards from there it applies a superficial reasoning to justify the result. All of you are looking for the “right answer”. The problem is, there is no “right answer”. Just a result.

Maybe this will help, as an example.

Let’s say your on the Court and you want to hold that a state law banning videos of police confronting suspects is unconstitutional. So, you write an opinion saying that the law:

1) Violates freedom of expression – and hence the First Amendment – because a citizen making the video may want to disseminate it in various media, including network TV, You Tube, etc.

2) Violates substantive due process of law because it potentially deprives persons confronted by police of an objective, verifiable video record of what happened and there is no rational basis for doing so.

3) Violates equal protection of the law because the police themselves have the right – which they often exercise – to video whatever they want in public and their rights should not be any higher than anyone else’s. (And so on. If we wanted to take the time we could dream up some more.)

On the other hand, let’s say you want to side with the police. As a judge you write an opinion that says:

a) First Amendment rights are not absolute. There can and indeed must be reasonable restrictions on free speech for public safety reasons. For example, no one can lawfully make a false shout of “Fire” in a crowded theater because you risk panic, a stampede, and injury or death to many. The state legislature in this case has made the judgment that video recording police activity is detrimental to officer and public safety because an officer, knowing that she might be on video, might be distracted, might be too worried about being criticized for her conduct later, and thus some portion of her full attention might be diverted from a crisis situation. It is better to have a police officer fully engaged in confronting a potentially dangerous subject than run the risk of these kind of distractions. (You can see that you could spin that line a long way out.)

b) Due process of law only requires that a law have a rational basis. The Court does not second guess the judgment of the legislature in enacting a law unless it is without any rational basis at all. Here, there is a rational basis: officer safety and public safety.

c) Equal protection of the laws is similar to due process. Laws are given strict scrutiny by the Court on equal protection grounds only when a “suspect class” is involved. For example, race. Here, no suspect class is involved. Law enforcement officers are drawn from the common citizenry and are appropriately vested with powers beyond those of a common citizen. For example, it is generally unlawful – indeed a separate crime – to resist even an unlawful arrest by a law enforecement officer. In contrast, it is not generally unlawful to resist a citizen’s arrest, particularly an unlawful one, such as when a store losss prevention agent mistakenly tries to detain someone on suspicion of shoplifting and the suspect is actually innocent. This video ban is the same sort of thing. The police are protected from videotaping even when common citizens are not. This does not violate equal protection of the laws.

Well, all of that was written on the fly, by the hem of my skirt, so to speak, and I’m no constitutional scholare. I hope, though, that you get the point. Which side has the “right answer”? Pretty much, the side that gets 5 out of 9 votes.

I know this is disrespectful to the Supreme Nine and their predecessors, but that is the direction I have seen it go while I have been a lawyer, which is 30+ years now. I don’t think it was always this way. From the older decisions I think that there actually was a time when a judge tried to use legal principles to reach a “correct” conclusion instead of an excuse to justify the result he (and yes, it was “he” back in them days, boys) wanted. Maybe some of them still do that. However, unfortunately many, I think most, of the federal judiciary have become part of the gamesmanship that has taken over and polarized the entire US political system over the last 30 years.

As to the video ban issue itself, fortunately, at least most states have seemed to have had the sense to recognize that it is not a good idea to ban video of police in action in public. That is a political result, though, not one based on constitutional law. That’s the real source of individual freedom anyway – having a rational society that makes rational choices – not some dusty old thing called the Constitution. My guess is that if it came down to a constitutional decision, given the fascistic direction the Court has gone on most issues for years, the law would be upheld.

Sorry, this isn’t patriotic, I know. In fact it is very cynical, but I call ‘em like I see ‘em.

Well, it’s been fun but I have real work to do tomorrow and it’s late. Best regards.

YARNLADY's avatar

The next thing you know, it will be against the law to watch an arrest. You will be required to turn your back, and not look.

ETpro's avatar

@semblance I see exactly what you mean. With the current court, that is certainly true in spades. Citizens United is a glaring example.

@YARNLADY. “Nothing to see here, Move along.” Anyone daring to peer past that perimeter is subject to immediate arrest. We must arrest everyone for the sake of public safety.

Espiritus_Corvus's avatar

Man, our laws are backward engineered. Depressing.

JLeslie's avatar

We need johnpennington on this Q

john65pennington's avatar

Never heard of this law and frankly, if it were challenged in court, it would not be upheld. taking a photograph of anything is not and should not be illegal, IF the photos are taken on public property. this should include photos of the police, whether in a good or bad position. this is not a law violation in Tennessee and we welcome the cameras.

Bottomline, if the police are doing their duty and not “crossing the line”, why would we ever need a law to forbid picture-taking? i was photographed many, many times and i welcomed it. a photograph can prove you innocent, just as much as it can prove you guilty.

Car cameras in police vehicles are a very good example. these videos have saved many officers from false brutality claims, while making a legal arrest.

ETpro's avatar

@john65pennington Thanks so much for your expert opinion and for the report on Tennessee. I totally agree with you. But I am dismayed to report that here in supposedly liberal Massachusetts it is illegal to film police without their consent.

Trojans40's avatar

I understand with a great valuement as a citizen that one should be able to film or picture a police making an arrest.
Do anyone in here understand the stress as a police officer? There are many rules and obligation that a police unit must follow. I would imagine myself being one don’t even wanting to be film while I am working as an officer.

Dr_Dredd's avatar

I imagine that @johnpennington probably understands the stress…

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