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Recording the Police

November 20, 2020

The increasing use of cell phone cameras to record police misconduct has been one of the most significant developments in our understanding of police-citizen encounters. It has “recast the narrative surrounding police violence and heightened public concerns about law enforcement.” Recording police interactions can also be one of the best ways to preserve a future civil rights case. But does the law allow citizens to record the police? The short answer is yes — under certain circumstances.

Recording Police

Recording the police is a critical tool for police accountability. Police recordings can make or break a case in court as well.

Video footage can help a jury in a variety of ways. It can corroborate witness statements. It can confirm actual events without needing to rely on someone’s memory. And it can turn an entire case in one side’s favor.

Without witnesses to an interaction with the police, having video evidence can be the ultimate way to prove a case.

Of course, recordings work both ways. They can show how the person recording the video was breaking a law. But they can also show the officer’s legitimate cause to arrest the suspect.

There are many reasons why a citizen might want to record the police. But when can you record police in the first place?

Illinois Law on Recording the Police

The U.S. Supreme Court has not yet issued an opinion on whether the First Amendment protects a citizen’s right to record the police.

However, several federal appellate courts have come down in favor of allowing citizens to record police officers performing their official duties in public. One of these courts is the Seventh U.S. Circuit Court of Appeals, the court that covers Wisconsin, Indiana, and Illinois.

The Seventh Circuit held in 2012 that an Illinois law prohibiting recording conversations unless all parties to a conversation consented to being recorded was unconstitutional as applied to recording police officers engaging in official duties in public. The law made it a Class I felony punishable by up to 15 years in prison to record a police officer performing his official duties unless he consented to being recorded. The federal court declared that this portion of the law violated the First Amendment.

A few years later, Illinois passed a law that removed restrictions on recording police officers when they are on duty. This is because police officers do not have a reasonable expectation of privacy when they are working in public.

When and Where Can I Record the Police?

People cannot record the police whenever they want. Recording the police is subject to significant limitations.

Citizens may record the police visually and audibly, as long as the police are 1) performing their official functions, 2) in public, and 3) subject to certain “time, place, and manner” restrictions.

What does this mean?

Official police functions

In order to be protected by the First Amendment, a citizen must record the police engaging in their official duties. This can include driving a squad car, investigating a crime, or making an arrest.

A citizen has no First Amendment right to record police officers conducting unofficial activities. You can’t record them eating lunch or engaging in personal conversations.

Public place

The activity being recorded must be in a public place. A public place is a place where members of the public are allowed to gather. This can include sidewalks, parks, beaches, the common areas of government buildings, and other areas designated for public use.

If the person recording is trespassing on private property, an officer can order the person to move to another location.

“Time, place and manner” restrictions

The right to record the police is subject to certain reasonable restrictions, often referred to as “time, place, and manner” restrictions.

For instance, an officer can order you to get out of the street if you’re filming in the street. An officer can also order you to leave an active crime scene and record from somewhere else.

You are not allowed to record police officers in a way that interferes with their ability to do their jobs.

Restrictions must be content-neutral

Any restrictions on recording must be content-neutral — that is, the restrictions must not be based on the point of view of the person recording, or the purpose of the recording. The restrictions must be narrowly tailored to serve a significant governmental interest and leave open reasonable alternative avenues of communication.

For example, an officer cannot order someone recording to leave the area because that person is a member of a particular group.

The law of retaliatory arrest

As discussed in this article, an officer may not arrest someone simply for recording the police.

However, it has become more difficult to sue an officer for something known as “retaliatory arrest.” This refers to arresting someone for engaging in constitutionally protected conduct (like recording the police).

In 2019, the U.S. Supreme Court held that, in filing a lawsuit accusing an officer of arresting her in retaliation for engaging in a protected activity, a citizen must prove that there was no probable cause for the arrest. In other words, even if it is obvious that you were arrested in retaliation for protected activity like filming the police, you still have to prove that there was no legal basis for your arrest.

But there is an exception: if the plaintiff can prove that she was arrested when other similarly situated people who were not engaging in the protected activity would not have been arrested, she does not have to prove the absence of probable cause.

For example, let’s say a group of people jay-walk, while one of them films the police. If only the person recording gets arrested for jay-walking, and not the others, then she has a good chance of succeeding in a retaliatory arrest lawsuit.

Can the police seize your phone?

Generally speaking, the police cannot confiscate, or “seize” your property without a warrant, or unless a recognized exception applies. This includes your phone.

But, as with any interaction with the police, you should comply with police orders and make any points about their conduct later.

Conclusion – Is Recording Police Legal?

Yes, you can record the police, but only under certain circumstances, and subject to reasonable restrictions.

Police have to be carrying out their official duties in public in order for you to legally record them. But you have to obey police orders to move if ordered to do so.

If you believe that an officer is unlawfully preventing you from filming the police, do not resist or disobey the officer. Comply first, complain later. The last thing you want to do is give the officer a legitimate reason to arrest you.

If you have any questions about this article, or believe that you or someone you know has been the victim of a civil rights violation, contact Chicago civil rights attorney Jordan Marsh for a free consultation at (312) 401-5510, or at jordan@jmarshlaw.com.

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