The Public’s Right To Record Police Activities

Last Tuesday, April 23, the Connecticut Foundation for Open Government (“CFOG“) sponsored a panel discussion on the public’s right to record police activities.  It was my honor, as the president of CFOG, to moderate the panel discussion, which featured Chief States Attorney Kevin Kane, South Windsor Chief of Police Matthew Reed, Mickey Osterreicher (General Counsel for the National Press Photographer’s Association), Ben Solnit of the ACLU of Connecticut (sitting in for Sandy Staub, ACLU legal director), and Mario Cerame, creator of www.righttorecord.com, a blog that covers this issue. We had a great discussion.  For anyone interested in this topic, video of the discussion is available here on CT-N.

The discussion was quite topical.  For the third time in three years, Senator Martin Looney of New Haven is attempting to get legislation passed that would create a statutory right to sue a police officer who interferes with a citizen’s right to record police activities, subject to certain exceptions. Here is the text of the bill:

Section 1. (NEW) (Effective October 1, 2013) (a) For the purposes of this section, “peace officer” has the meaning provided in section 53a-3 of the general statutes.

b) A peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer’s duties shall, subject to sections 5-141d, 7-465 and 29-8a of the general statutes, be liable to such person in an action at law, suit in equity or other proper proceeding for redress.

(c) A peace officer shall not be liable under subsection (b) of this section if the peace officer had reasonable grounds to believe that the peace officer was interfering with the taking of such image in order to (1) lawfully enforce a criminal law of this state or a municipal ordinance, (2) protect the public safety, (3) preserve the integrity of a crime scene or criminal investigation, (4) safeguard the privacy interests of any person, including a victim of a crime, or (5) lawfully enforce court rules and policies of the Judicial Branch with respect to taking a photograph, videotaping or otherwise recording an image in facilities of the Judicial Branch.

The panel debated the wisdom and necessity of the bill, particularly in light of several federal circuit court decisions recognizing a First Amendment right to record police activities.  (See my previous post on those cases.)  A good portion of the discussion, however, focused on the need for improved law enforcement training.  That is, police departments need to do a much better job of training their officers to deal with members of the public and press who record police activities (e.g., arrests, traffic stops, ec.) in public areas.


18 Comments on “The Public’s Right To Record Police Activities”

  1. flliberty says:

    watched the entire CTN clip, two of my most favorite people were on the panel, Mickey O. and Mario Cerame with a chief of police, the state attorney and an ACLU attorney. To make the long of it short, nothing has changed. Maybe in the area of wiretapping, I perceived that the leo (s) are accepting that wiretapping is dead. I’m pretty sure no one will ever be arrested for this charge ever again for recording police in public, but the leos always tend to surprise me.

    However, in the area of stopping citizens from recording and taking cameras, the attitude hasn’t really changed. They still want to have the options of taking citizen(s) cameras for “evidence” and they want to have the option to tell you to beat a retreat (basically go far, far away) for “officer safety” and because you are “distracting” the leos. So, I’m sure we will still see plenty of arrests and interference from leos for obstruction of justice, disturbing the peace, loitering, harassment/stalking, and criminal trespassing after warnings on public sidewalks.

    My favorite line from Mario and I’ve remembered this from a year ago, is that “When a leo tells a citizen to stop recording, this is the worst form of censorship and the most serious form of prior restraint because if a publication is censored somehow by government, sometime later that publication may be released, but when a leo takes a camera or puts a videographer in handcuffs, the news that he was about to gather is lost forever.”

    • MKC says:

      First, thank you very much for your compliment.

      Second, I have to confess–I can’t recall whether Marty Margulies or I came up with that idea specifically. But regardless, I have to give him tons of credit–many of my ideas come from conversations he and I have shared. And he’s a total 1A bad-ass.

      The basis for the particular idea you’re talking about comes from a US Supreme Court Case:

      “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” <a href="http://scholar.google.com/scholar_case?q=freezing+speech+prior+restraint&hl=en&as_sdt=2,7&case=2489199669673453004&scilh=0&quot;Nebraska Press Association v. Stuart at 559.

      With the rtr, post-incident seizure is freezing speech–preventing publication. Seizure in the moment is something more grievous. It’s just–like it never was.

      Thanks for posting your thuoghts and for caring about the issue.

  2. gindjurra says:

    Section 1 (c)(4) is alarmingly open to abuse, given how many people are convinced beyond any doubt that they DO have a right to privacy standing in the open on a public street, and that photographers need permission to exercise constitutional rights.

    • interested says:

      well, it is particularly open to abuse because police can construe those exceptions to apply to almost anything. Except in the most egregious, absurd cases, police will retain their immunity and civil cases will be thrown out. It will be a rarity that abuses will be remedied. At best, this law puts police departments on notice that the public cares about the issue. That will probably cause them to be a little better about it. That is all. The legislature made sure they won’t be held accountable for violations because of that language in the law.

      • catherinetodd3 says:

        Interested said it all: “The legislature made sure they won’t be held accountable for violations because of that language in the law.”

        Exactly. It’s a load of b.s. and will require the Federal courts to intervene I think. How in the world the police can object to being recorded doing their duty as public servants is beyond me. We are one step from a Nazi police state.

      • MKC says:

        I could not agree more. I wrote about this when analyzing last year’s version of the bill, which has identical wording to the present bill.

  3. interested says:

    Been watching the video — The right goes beyond “recording in public,” if that means what I think it means. This is said many times during this forum at Quinnipiac – you can record in public. This really misunderstands the full contours of the right and one hopes those contours are not narrowed.

    I consider the Connecticut law diminutive.

    There is an issue of recording police in the performance of their duties, not necessarily public places but anywhere one has a right to be. That’s a big deal.

    There is a great letter from DOJ to Baltimore police about Baltimore’s general orders on recording.

    Here is the link to the pdf:

    http://www.wired.com/images_blogs/threatlevel/2012/05/united_states_letter_re_photography_5_14_2012_0.pdf

    And here is an excerpt, where DOJ is giving feedback on language in Baltimore’s regulations:

    “For example,General Order J-16 states that officers may not prohibit a person’s ability to observe, photograph, and/or make a video recording of police activity that occurs “in the public domain,” General Order J 16 at 1, but never defines this term.BPD should clarify that the
    right to record public officials is not limited to streets and sidewalks, it includes areas where individuals have a legal right to be present, including an individual’s home or business, and common areas of public and private facilities and buildings.”

    There is a lot more discussion of this in the memo.

    I believe that it is silly to think that you can only record police doing their job when they are on the sidewalk and not in your home or not talking to you on your phone. It is silly — are they any less performing their duty when in your home or, say, engaging in misconduct in a phone call to you (because they think you can’t record the phone call)?

    It is no less in the public interest to preserve evidence of police misconduct on a phone call to the party recording the call, than to be engaging in misconduct on a sidewalk.

    Several times statements were made at the Quinnipiac meeting that got this wrong. They kept emphasizing when it is in a public place, because none of us has the expectation of privacy on the sidewalk.

    But in an official phone call from a police officer, doing police business, on the clock, which is a public job, an officer is not acting as a private agent and has right to demand there be no record of the call. Likewise in your home or on a traffic stop either.

    Recording your phone call without telling the other party (the police officer) feels sleazy, but if you are being threatened by a police officer, say, it certainly no longer is sleazy, is it. It also is not illegal. Also, you can tell them you will be recording.

    I am thinking that this may supersede Connecticut two-party consent for recording phone calls. What do you think?

    The chief of police on the panel also discussed people recording police in their homes, and he seemed to understand that they have the right to do that. He also said police doing “a public job” as opposed to a “public place.”

    Also I think the issue with witness surveillance — there is a strong law enforcement justification for providing a safe confidential venue for those discussions, including sometimes protecting retaliation against the witness. I don’t think it is a privacy issue, or I don’t think anyway that the privacy issue is the most compelling one.

    • MKC says:

      Yeah, Im very familiar with the memo. It’s interesting–DoJ has come out with two. There are some wrinkles here and there that I may write about, especially with how they treat Colten.

      With witness surveillence–here, I’ll go with the straight policy first, and then I’ll give you the 1A shakedown. 🙂

      Policy wise–just go to a cruiser. Go somewhere that the person can lawfully be excluded. Is there really, *really* a policy interest in keeping something that is said on a public sidewalk “secret”? If so, that seems like poor judgment to me–what about surreptitious recordings? I don’t buy it–policy wise.

      Neither does the 1A. Okay. This is clearly content discrimination at the least. Police don’t stop people from taking pictures of cats or flowers–it’s about the content. Also, I’m assuming this is somewhere the recorder is not trespassing (on a sidewalk, in the recorder’s home, etc.). So–alright, we apply strict scrutiny. So (1) the government must have a compelling interest, and (2) this procedure must be necessary to adequately advance that interest, and (3) this procedure must be the least speech restrictive alternative that adequately advances the interest. That’s the 1A here.

      Alright. I’ll assume that we have a compelling interests–that enforcing this law of the state is a compelling interest (it really depends on the law, but I’ll just give that for now–it’s not the meat of the argument).

      Is it necessary to stop an ordinary person from taking video in public to adequately advance the interest? Um. No–not usually.

      Reducing administrative costs, by the way, is never satisfies a compelling interest. That is, it it creates a delay that only costs time and money–the procedure will fail the 1A for content discrimination.

      Okay. Let’s assume some kind of urgency. It would have to be something rather pressing.

      Is the interest actually advanced in any substantial way by telling someone to turn off acamera, if you’re having the discussing in public. You know, where people now have personal drones flying around, loads of stationary personal surreptitious surveillance devices, etc. I am very doubtful.

      Last–there is a less speach restrictive alternative. Let the person take pictures and video of whatever he wants in public. But have the secret conversation somewhere that is actually at least a little secret.

      I welcome being told how I am wrong. Thanks for caring about the issue enough to take an interest and post about it.

      • interested says:

        I am not worried about the witness issue all that much because police already do tend to pull witnesses to the side at the scene of incidents. it’s already a big part of processing incidents. They tend to create a pocket of privacy from other actors at the scene, other witnesses etc.

        Except in extraordinary circumstances, that tends to be a very temporary need: to get witness statements at the scene that are not influenced by other witness statements and to prevent arguments between witnesses/actors at the scene.

        Do you have a link to the “other” DOJ memo you mentioned? I would love to read it.

        What is your take on the clash between our right-to-record police and Connecticut’s two-party consent for recording phone calls? Taking federal and constitutional law into account as well? (actually it’s not so much consent as notice – you inform and the other party has the right to hang up or not) The two-party rule is not a criminal law in Connecticut, Not getting the other party’s consent is a civil violation.

        It is amazing how heavily officials who engage in misconduct do so on the phone in Connecticut, thinking no one can record it.

      • MKC says:

        The other DoJ memo is here. It’s much less substantive than the more recent one. I wrote briefly about it when it came out here.

        On the civil wiretapping law–I assume you mean the § 52-570d one? By my reading, textually, it applies only to telephonic/electronic communications that are private communications–so it just doesn’t apply to people taking pictures or video in public. Also, taking recordings of people who are on the phone in public does not by my reading fall within the statute–a phone conversation, in public, such that bystanders can hear is by definition not a private conversation. 🙂

        There’s no need to get into constitutional limits then, although, I believe there would be such limits if a similar statute tried to create a civil penalty for taking pictures/video in public.

      • interested says:

        MKC- thanks for the link. I am replying here to your June 2 comment because the is no reply button for replies to replies!

        Yes, I am referring to 52-570d.

        Anything that is from one- to all-party consent is not something I personally call “wiretapping” although I know some use the word “wiretapping’ for any recording of a phone call or, I guess, other conversations.

        Anyway, to clarify, this is the hypothetical I am exploring:

        A citizen is on the phone with an on-duty police officer engaged in official business ( in other words, the police officer isn’t making a personal call to you) The citizen wants to tape that phone call, to which the citizen is a party.

        OK to tape without informing the police officer, or, if informing them, not in the way 52-570d describes?

        Despite Connecticut’s civil all-party consent rule?

        I say, if the DOJ Baltimore memo is to be taken seriously, the answer is mostly yes, maybe with some exceptions, and 52-570d be damned.

        If not, the result is pretty darn absurd because the Baltimore memo cites all sorts of scenarios:

        Right to record police in meetings with police no matter where they occur. If you are in a meeting with police at the station house you can record it. Right to record police in your home if they enter your home. Right to record police if they pull you over on a traffic stop. Right to record police while they are in the performance of their public duties.

        This isn’t about public places. This is about police performing public duties.

        Getting consent of all parties means different things depending on who the party is. If it is your grandmother you should get consent. If it is a friend, or a work colleague etc.

        But if a police officer calls you and is engaging with you on a serious matter that could result in police damaging you or harming you, with all the power of government behind him or her, and the officer says — I want to grill you on the phone and you are not to record this without my permission — please. How can they expect to enforce that?

        Is 52-570d, in a scenario like that, being pushed away by these other considerations as to our right to record police? Is it now more reasonable to switch to one-party consent? . See again, the Baltimore memo – right to record them if they enter your home, if you are in the station house with them, etc. It is not only about recording in public but while they are performing a public duty — except on the phone? Wouldn’t seem to make much sense.

        And please understand, I am not talking about other people’s phone calls. I mean when police are talking to you on the phone. I saw one-party consent is fine in that scenario and should be legal.

        The exemptions to 52-570d are so laughably Connecticut in the way it lifts this requirement for certain government people — FCC, federal state or local law enforcement etc.

        Federal law is one-party consent as well as the vast majority of states laws. I think Connecticut’s all-party law is biting the dust when it comes to recording your own conversation with police on the phone.

      • interested says:

        Oops, MKC, yours and my links both go to the same Baltimore memo, re chris sharpe, 11 pages. The more substantive more recent memo — do you have the link to that, or is that the memo? Thanks much.

      • MKC says:

        Re more recent one: March 2013, an image is here. After August 1, I’ll no longer be working for in government and I’ll be able to post more publicly. I’m just keeping a lower profile until then.

      • MKC says:

        Re: your hypothetical.

        You’re certainly looking at an as-applied challenge, not a facial one. There are way too many lawful applications to muster a facial challenge. Is the application unconstitutional as applied? I think can think of some factual scenarios, but I think generally speaking the law is going to pass. (I may be wrong–absolutely.)

        Let’s assume that notice is not speech–just a legal act. Note also that recording someone doing something unlawful–an officer making a threat, harassment, etc, falls within exception b.3. So that’s not an issue for the act.

        What in the first amendment frees the non-officer from being required to give notice in this situation? The state is regulating the manner of electronic communications–not content–just the manner. The conversation is not public, but does involve a public official–that’s your only angle, and I don’t think it will fly particularly given the exceptions like b.3. Inasmuch as the law could be interpreted to infringe on speech, it seems like a reasonable TPM to protect an important interest (privacy over a private phone line is likely important, even that of a government official) and it is a good enough fit for intermediate scrutiny. (Privacy of a government official as he breaks the law may not be an important interest, though–thus exception b.3 could be crucial.)

        If a court would conclude that the privacy of a government official in this situation is not an important interest, then you have a winner. I suspect a court would conclude that it is an important interest, generally speaking.

        Also, if you can show that a state actor is applying the law to punish someone for his or her viewpoint–then I think there’d be a good claim. I mean, it’s essentially something like a malicious prosecution claim or an EPC claim.

        Also, if the non-officer was physically present–I think that could be different. And I think civil liability for recording solely your *own* words spoken in a phone conversation would be a closer call.

        If you don’t like this law, even considering the exceptions–and I can absolutely understand why you may not like the law–I think it’s likely that constitutionally speaking the fix is going to be the political process, not the 1A.

      • MKC says:

        Good q and thanks for your interest.

      • interested says:

        Interesting thoughts. Thanks.

        This part of your comment:

        ” …important interest (privacy over a private phone line is likely important, even that of a government official)”

        ” I suspect a court would conclude that it is an important interest, generally speaking.”

        Of course we are talking Connecticut and a minority of other states. Most states and federal say otherwise. So, in Connecticut:

        Say in this scenario there is nothing in the content or particulars of the conversations that would give a court pause about harm to some third party.

        Say there is only this “general” principle to worry about, the privacy of a police telephone. First, there is no third party wire-tapping on the line so the security of that line remains totally intact. It is operating properly with privacy in that sense, in the sense of a secure line. That isn’t compromised.

        Second, the all-party consent law in Connecticut has to be based on the expectation of privacy overall, in general, and I can’t imagine how police can invoke that while performing their jobs unless they are trying to conduct a confidential interview. Especially considering that they can’t expect it if they are in your home and you are recording them there. And can’t expect it in lots of other scenarios. In that context, the phone call becomes a pretty stark carve-out.

        These calls don’t exist solely to get recordings, they are happening in order to engage in important conversations and without recording, the person feels the conversations would not be possible, they’d be too risky.

        The exception for crimes or harassment is of some interest because that is why she is recording them — because of their past crimes and false statements, intimidation, harassment — based on past experience with them, she figures this is the only way to protect herself.

        Anyway, I say it is one heck of a hairsplitting complaint for police to make. I wouldn’t dream of advising anyone else and I’m not a lawyer. I speak only for myself. I am comfortable feeling that they can sue if they don’t like it, or they can fight the production of such recordings in any civil litigation.

        Anyway, no need for response — just leaving this as food for thought. Thanks for the conversation.

      • interested says:

        PS, not that I would put it past Connecticut courts to split hairs to the micron, or, when that proves too sweaty and frustrating to just smash the weaker party with a fly swatter.

  4. catherinetodd3 says:

    The whole of Section 1 (c) negates any rights of a citizen to record police. It’s ludicrous to think that this legislation, if passed, will protect citizens in any way. I’d like to see the Federal ruling on this. I can’t imagine how recording police can be “interfering” with them in any possible way! We are truly living in a police state now and most people don’t seem to notice or care. Scary. Thank God for Carlos Miller and websites like this one.


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