After the riots in Ferguson were ignited by the controversial killing of Michael Brown, there has been a nation-wide debate over the “rise of a militarized police state.” With growing concerns about the overstepping nature of law enforcement, many people have turned to their cell-phones to record every encounter with police, to ensure their justice is preserved. We absolutely recommend recording the police during any interaction, but there are a few rules that you must follow if you want to record effectively.
Know The Law
Though it is completely legal to record cops openly in a public space (as long as it doesn’t physically interfere with their ability to do their job), there are states that have “eavesdropping laws,” which prevent the recording of people without their knowledge. In twelve states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, all parties being recorded must consent to the recording. However, in all but two states, Massachusetts and Illinois, there is an “expectation of privacy provision,” which sets the precedent that the “eavesdropping laws” do not apply to on-duty police officers. If you currently live in Massachusetts or Illinois: Though these laws were created before the invention of the camera-phone, many police brutality cases have been thrown out due to the legislation in these states. In Mass or Illinois, you must obtain verbal consent (in the recording) from the police officer being recorded. Technically, it is within his or her constitutional rights to refuse being video tapped, so if they refuse to give you consent, you must abide or face obstructing justice charges. Further, if you are recording on private property, it is the property owner’s rights to dictate the rules for recording.
Be Polite, But Assert Your Rights
I can’t tell you how many times I’ve seen “cop watch” videos where people are full-blown instigating a fight with the officer. There’s a massive difference between asserting your rights and just being a full-blown dick. Simply be respectable and talk to them as you would a parent or another authority figure. This doesn’t mean that you have to agree with everything they say though. If a police officer is outright wrong about something (i.e. “stop filming me, it’s against the law) then politely tell them that you disagree, and to show you the law that states it’s illegal. ONLY do this if you absolutely know the law though, as no police officer likes a smartass who doesn’t know their rights. If you are filming a police interaction as a 3rd party and they request you to move back (as to not “interfere” with their duty), then move back, but continue to record the entire interaction.
Let The Police Do The Talking
It seems like it would be a no-brainer, but for some reason when people get behind a camera, they start to think that they’re invincible and will sometimes yell things at the police. If you are not involved with the police (and recording from afar), but are yelling things during an arrest, or are even instigating a bad response by the police, they can slap you with interfering with an arresting officer or obstruction charges. Honestly, the best thing you can do while recording an encounter with the police is to stay as quiet as you can and simply allow the encounter to occur without interfering whatsoever. Even if you’re the person who is being questioned, it’s in your best interest to talk a little as you can. As the Miranda rights point out, “anything you say can, and will, be used against you.”
Don’t Be Intimidated
Police never want videos of them reaching YouTube, so often times they will attempt to make illegal seizures of your smartphone to avoid the embarrassment. The Supreme Court has ruled that the police may not search your cell phone, even when they arrest you without a warrant (as a side note, they did not specifically rule on whether law enforcement may confiscate other electronic devices, like a standalone camera). Further, police may never delete your photos or videos under any circumstances (even if it’s on a standalone camera). This is considered tampering of evidence, and even has been ruled theft in some cases.
Never Forget These Three Phrases
“Are you detaining me, or am I free to go?” “I’m exercising my right to remain silent,” and “I do not consent to any searches.” Possibly the most important phrase that any citizen can know while dealing with the police is “am I free to go?” The reason this phrase is so powerful is because it establishes that the encounter is not voluntary, which will help you out if you end up in court later down the road. If the officer does not answer (most likely due to the fact that he is not detaining you), then simply say that you are “exercising your right to remain silent.” This removes your need to answer any further questions that the officer may have. Finally, by saying “I do not consent to any searches,” you’ve established that any searches of your person without a warrant is an unlawful search, and thus, will not hold up in court. This doesn’t mean that if the officer attempts to search you that you should physically prevent him to, instead allow him to conduct the search but record yourself declaring that you do not consent to any searches.
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