Videotaping and photographing cops: The ACLU says it’s your Constitutional right

In this age of technology, citizens have a completely legal ability to document goings-on that don’t look right when it comes to cop behavior.  Simply watch the live stream of the Ferguson, Missouri protests – following the killing by a cop of an unarmed black teenager, Michael Brown – to see how valuable video documentation is.  Photos and videos preserve the truth – which is often in short supply when police departments begin circling the wagons around their tainted officers.

According to the ACLU:

Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply.

Yeah, boy, “widespread, continuing pattern” is right.

YouTube videos have become a tool of the public against police brutality, excessive force, abuse of power, and a myriad of other sins committed by cops while in the line of duty.  No, cops really, really don’t like being photographed while they’re roughing somebody up.  But that’s tough.  You have a Constitutional right to do it.  And post it.  Despite what cops might want to tell you, they have no “expectation of privacy” when they’re in public performing their duties.  As long as you’re not actively interfering in their work, and as long as you’re recording openly, have at it.

Also, according to the ACLU:

Police officers may not confiscate or demand to view your digital photographs or video without a warrant. The Supreme Court has ruled that police may not search your cell phone when they arrest you, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic devices such as a standalone camera, the ACLU believes that the constitution broadly prevents warrantless searches of your digital data. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme ‘exigent’ circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant . . . Police may not delete your photographs or video under any circumstances. Officers have faced felony charges of evidence tampering as well as obstruction and theft for taking a photographer’s memory card.

The ACLU cautions, however:

. . . [T]here is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.  Such laws are generally intended to accomplish the important privacy-protecting goal of prohibiting audio ‘bugging’ of private conversations. However, in nearly all cases audio recording the police is legal.  In states that allow recording with the consent of just one party to the conversation, you can tape your own interactions with officers without violating wiretap statutes (since you are one of the parties). In situations where you are an observer but not a part of the conversation, or in states where all parties to a conversation must consent to taping, the legality of taping will depend on whether the state’s prohibition on taping applies only when there is a reasonable expectation of privacy. But no state court has held that police officers performing their job in public have a reasonable expectation. The ACLU believes that laws that ban the taping of public officials’ public statements without their consent violate the First Amendment. A summary of state wiretapping laws can be found here.

As advises, if a police officer questions you while recording, say something like “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite.” also notes that many states have two-party or all-party consent laws – but, “if you live in one of the 12 all party record states, you might say something like ‘Officer, I’m familiar with the law, but the courts have ruled that it doesn’t apply to recording on-duty police.'”

Citizens can’t meet cop force with force; they can’t physically intervene when something bad is going down.  But times, they are a’changin’ – and YouTube is a beautiful thing.