“I’m asking all the citizens of North Charleston to continue taping.”

That is what Councilwoman Dorothy Williams said in response to the shooting death of Walter Scott. She and others recognize that the story would have been very different without the video showing that a white police officer shot the unarmed black man several times in the back as he ran away from a traffic stop in North Charleston, South Carolina. Both NBC News and Huffington Post imagined the story absent the video.

The tragic encounter was filmed by 23-year-old bystander Feiden Santana. After Santana released his video, the officer was arrested and charged with murder. Santana decided to share the video with Scott’s family because he knew it contradicted the official police account.

This case exemplifies why an important component of police accountability is the ability of citizens to record officers carrying out their public duties. Thankfully Santana was not harassed for wielding his cell phone, but many people have been: officers have ordered people to stop recording, seized their devices, deleted the photos or video/audio recordings, and even arrested people.

The Justice Department report on the Ferguson Police Department issued last month chronicled a pattern of abusive and unconstitutional behavior by police officers when citizens tried to record them (see pages 26-28). One officer arrested a woman after she began recording her husband’s arrest by the officer. As the report explains, “The officer became irate, declaring, ‘you don’t videotape me!’”

Some federal appeals courts and the Justice Department have recognized the right of citizens to record the police, although the Supreme Court has not squarely ruled on the issue. Recent cases have specifically addressed recording the police in the age of the cell phone, which can record pictures, video and audio (with audio recording implicating wiretap laws).

In 2011, the U.S. Court of Appeals for the First Circuit issued an opinion in Glik v. Cunniffe. Simon Glik had used his cell phone to record both video and audio of Boston police officers arresting another man. The officers then arrested Glik for making the recording, but the charges were later dropped. Glik sued the officers and the City of Boston for violating his constitutional rights.

The First Circuit held that the First Amendment “unambiguously” protects the right of citizens to record the police – and government officials generally – carrying out their official duties in public. The court stated, “Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.”

The details of the case are important. Relying on the fact that Glik had stood about 10 feet away from the officers, the court stated, “Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”

The First Circuit also held that the Boston police violated the Fourth Amendment because they did not have probable cause to arrest Glik. Because Glik’s recording of the other man’s arrest included audio, the officers accused Glik of violating the Massachusetts wiretap statute. Massachusetts is an “all-party consent” state, meaning that all parties to a conversation must consent to it being recorded; whereas the federal Wiretap Act and other states’ laws are “one-party consent” statutes, meaning that only one party to a conversation needs to consent to it being recorded.

The First Circuit noted that although the Massachusetts wiretap statute protects both private and public conversations (notwithstanding the First Amendment), it only prohibits “secret” audio recording where the parties to a conversation are unaware that they are being recorded. By contrast, the court found that the officers were on notice: Glik held his cell phone – “a device commonly known to record audio” – in “plain view” of the officers and one officer, in fact, knew that Glik was recording audio because the officer asked Glik if he was doing so and Glik replied in the affirmative.

Thus, the court held that Glik did not violate the Massachusetts wiretap statute because he did not make the audio recording surreptitiously – even though the officers were engaged in a public “conversation” with the arrestee and no one consented to being recorded. (In 2014, a Massachusetts woman was charged with violating the wiretap statute for making a secret audio recording of her own arrest by hiding her smartphone in her purse, but the charge was later dropped.)

In 2012, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in ACLU of Illinois v. Alvarez. The ACLU challenged the constitutionality of the Illinois wiretap statute, which, like the Massachusetts law, protected both private and public conversations and required the consent of all parties to a conversation. Unlike the Massachusetts wiretap statute, however, the Illinois statute prohibited all audio recording, not only surreptitious audio recording. The ACLU of Illinois was fearful of prosecution because it intended to record police officers performing their official duties in public as part of an accountability program.

The Seventh Circuit granted a preliminary injunction and held that the Illinois wiretap statute likely violated the First Amendment because it prohibited the audio recording – a “medium of expression” – of public conversations of police officers where no privacy interests existed. The court said that the Illinois legislature was not justified in “criminalizing this particular method of preserving and publishing the public communications of these public officials.” Though it was not central to the decision, the court also noted that the ACLU’s plan was to openly – not surreptitiously – record police officers in public.

The Seventh Circuit was quick to emphasize, however, that the right to record the police is not a right to interfere with police operations. The court said, “Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.” Thus, “While an officer surely cannot issue a ‘move on’ order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law enforcement needs.”

In line with these federal cases, in March 2014, the Illinois Supreme Court held in two cases that the state wiretap statute was unconstitutional under the First Amendment precisely because it protected public conversations where the parties had no expectation of privacy, and it criminalized even open recording where the parties were on notice that their conversation was being recorded.  

In December, the Illinois legislature sought to cure the constitutional deficiencies of the wiretap statute: it narrowed the law to make it a crime to record a private conversation in a surreptitious manner. While it may be difficult to determine when parties have a reasonable expectation of privacy and thus are having a “private” conversation even in a public place, we hope that this law will not be used to justify the arrest of Illinois citizens making audio recordings of police officers carrying out their official duties in public.

Last year, the city of Baltimore settled with Christopher Sharp for $250,000 after he filed a lawsuit alleging violations of his constitutional rights. Police officers had seized his cell phone and deleted his recordings, which included the arrest of one of his friends by the officers.

In that case, to the delight of civil libertarians, the Justice Department twice weighed in to defend citizens’ rights: in a statement of interest filed in the district court, and in a letter sent to the Baltimore Police Department. In the statement of interest, the Justice Department wrote, “The First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.”

The statement of interest also addressed the seizure of Sharp’s cell phone, explaining that under the Fourth Amendment the police cannot seize a cell phone (or other device) without a warrant unless the officer has probable cause to believe that the device holds evidence of a crime and there is an emergency (i.e., “exigent circumstances”) justifying a warrantless seizure. Even if the warrantless seizure is justified, the police may not search the device without a warrant based on probable cause – and they certainly may not delete files.

If a person is arrested (which Sharp was not), the police may not search a cell phone simply based on the fact of the arrest – they must generally obtain a warrant from a judge.

In 2012, partially in response to the Sharp case, EFF joined a letter to Attorney General Eric Holder calling on law enforcement authorities to respect the First Amendment right of citizens to record the police.

Unfortunately, Baltimore police apparently have not learned their lesson. In December, a woman filed a lawsuit after she was allegedly pulled from her car and tased while attempting to record the arrest of another man.

The District of Columbia Police Department is a good example of a robust policy directing officers to respect the right of citizens to record the police. Issued in 2012, the heart of the policy states, “The Metropolitan Police Department recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.”

EFF urges more police departments and more courts to recognize the clear First Amendment right of citizens to record police officers carrying out their public duties.

See my colleague Nadia Kayyali’s related blog post that includes tips and resources on how to safely record and interact with the police.