When I moved to the San Francisco Bay Area four years ago, I was impressed by all the young people eager to champion social justice causes. Perhaps even more impressive was the number of law enforcement professionals who invariably appeared at demonstrations and protests.
I remember attending a demonstration for the sentencing of Johannes Mehserle, the BART officer who killed Oscar Grant. While walking with the demonstrators, I made good use of my camera. I photographed anyone in plain sight, including police officers. During the course of the event, someone asked me if it was legal to include the police in the pictures. As a law student and avid First Amendment advocate, my initial responses was “duh,” but nonetheless, I felt compelled to explain why.
Can I Film the Police?
As a general matter, the answer is yes. However, it is not the resounding, absolute yes I’d prefer to give. Photography, or videography, is obviously not explicitly protected by the First Amendment. However, your ability to film the police has become a largely protected activity as “expressive conduct.” This means: so long as your film or photographs can communicate a message to a potential audience, your camera and its contents are protected.
Before you get carried away, there are a few things worth noting:
- Your ability to photograph as a form of expressive conduct only applies to places traditionally open to the public. If you burst into a home or a crime scene, wielding a camera and saying the First Amendment protects you, you are wrong (and probably a little crazy).
- Expressive conduct is subject to reasonable time, place, and manner restrictions. What this means is rather complex, but on a basic level, it means that police officers to ask you to back away or else they may corral you into a “First Amendment Zone.”
- Photographing or filming the police does not give you free range to violate the law. You must obey the traffic laws, property laws, and lawful commands of police officers.
Note that, at a protest, commands by the police to disperse likely do not require photographers or the press to cease engaging in newsgathering activities. Not only are they engaging in constitutionally protected behavior, they are likely not the actors engaging in the behavior the police have ordered to cease and disperse.
There is ample federal precedent to support the legality of photographing and filming police. While some federal circuits have punted on the issue, others have explicitly said filming a public officer in the course of their public duty is an essential right and important to preserving a free, educated democracy.
Can the Police Ask Me to Stop Filming or Hand over My Camera?
Yes. Police can ostensibly ask you whatever they feel like asking you. Whether or not you have to listen or respond, however, is another matter.
If you are lawfully in a public place, and not interfering with the officer’s work, and a police officer asks you to stop filming, you are under no obligation to do so. The officer may have a valid reason to ask you to step away, or to move back, and you will need to use your own judgment (and perhaps videotape the scene, including your feet and the officer’s distance from you, to give validation and perspective to your conduct) as to whether or not that is a lawful request and how you should respond. However, under no circumstances are you required to listen to an officer who is unlawfully commanding you to stop making photographs or videos. Assuming the police officer is professional, they will realize that filming and photographing is not a crime, and return their focus on the real issues they are addressing.
Unfortunately, some police are not professional. Some may even confiscate your camera. Keep in mind, if this occurs, you should never resist an officer. If you strike a bad chord with one, and that officer gets physical, comply. Hopefully, police officers know better than to seize a video or film camera. If they do not, and they do seize that camera, let them know that they cannot search your camera without a warrant. If they proceed to anyway, additionally remind them that absent any good-faith belief that your camera contains specific evidence of a crime, they are violating the Constitution and potentially exposing themselves to civil liability.
As a general rule, listening and being polite with the police goes a long way. But this does not mean you shouldn’t stand up for your rights. After all, it is a police officer’s job to protect and serve.
If you do, consider talking to a local attorney on the wiretapping laws and treatment of the First Amendment and photography or videography in your state. This will help you to become educated and may also prompt a lawyer to take action against unscrupulous or unclear laws, if it is necessary.
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