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Recording Police Officers and Public Officials
As discussed in other areas of this Guide, a patchwork of state laws applies to recording the communications of others, including wiretapping and eavesdropping laws. These laws may impose liability for recording audio of a conversation without the consent of one or more parties, or for making secret audio recordings.
However, First Amendment considerations arise when you are openly recording the activities of police officers (or other public officials) carrying out their duties in public places. A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police/officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.
Currently, the following U.S. Courts of Appeals have recognized the First Amendment right to record the police and/or other public officials:
· First Circuit (with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) ("[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall "because [the citizen's] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]").
· Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin): see ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) ("The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.").
· Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington): see Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (assuming a First Amendment right to record the police); see also Adkins v. Limtiaco, _ Fed. App'x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) (recognizing First Amendment right to photograph police, citing Fordyce).
· Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) ("The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.").
The Appellate Division of the Superior Court of New Jersey likewise recognized the existence of such a right in Ramos v. Flowers, Docket No. A-4910-10T3 (N.J. App. Div. Sept. 21, 2012), relying heavily on the First Circuit's reasoning in the Glik case.
If you are recording in New Jersey or in one of the states or territories within the First, Seventh, Ninth or Eleventh Circuits, the First Amendment right to record should protect you against prosecution for recording the police or other public officials as they carry out their duties in public places.
Even if you are not within these jurisdictions, these decisions may be persuasive to other courts. Although two other U.S. Courts of Appeals have declined to hold that a First Amendment right to record was "clearly established" as of particular dates in the past, see Kelly v. Borough of Carlisle, 622 F.3d 248, 261-62 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. App'x 852, 852 (4th Cir. 2009) (per curiam), none so far have rejected the existence of such a right. Furthermore, the United States Department of Justice has openly stated its position that the First Amendment protects all U.S. citizens who record the activities of the police in public, and has intervened in at least one civil rights lawsuit against police officers to support that First Amendment right. See Sharp v. Baltimore City Police Dep't, No. 1:11-cv-02888-BEL (D. Md. Statement of Interest filed January 10, 2012).
NOTE: The First Amendment right to record does NOT give you the right to interfere in the performance of officials' duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights.
A Message from Sheriff Scott Israel
THE CAMERA NEVER LIES
As sheriff of Broward County, I have worked to bring
transparency and accountability to the Broward Sheriff’s Office. It is an imperative
element needed to maintain community trust. Body-worn cameras are a key to
providing this public accountability.
It is important that you see the many great things our deputies do right day in and day out, but the few times we make mistakes and do things wrong, we must also be accountable. There is no better way of seeing what actually happened than a visual record of an incident. The public and law enforcement officers have a right to see and hear what goes on in the street when we do our jobs.
On my orders, BSO has already begun the process of implementing body cameras for our uniformed road patrol deputies. The use of this technology will protect good deputies from false accusations, build evidence to increase conviction rates for the criminals we arrest and help protect the public from the isolated instances of officer misconduct. Recording the interactions between our deputies and community members will help improve officer safety, strengthen trust and transparency and better document incidents and crimes.
OUR COMMUNITY WANTS BODY CAMERAS. I WANT BODY CAMERAS.
AND BODY CAMERAS ARE HERE AT BSO.
The results from law enforcement agencies around the country that use body cameras are encouraging. These agencies saw a drop in use-of-force incidents. The best example is the Oakland Police Department in California, which has 800 body cameras in use – the most of any U.S. police force as of this writing. Since the deployment of body cameras, the department has seen a sharp decline in attacks on officers and officer-involved shootings. At the same time, arrests in Oakland have stayed consistent with past numbers, dismissing a belief that the body cameras cause law enforcement officers to hesitate when they see something wrong occurring. Other departments with body cameras have posted similar positive results.
The Broward Sheriff’s Office currently has nearly 100 body cameras in use where they can be most effective. We are currently equipping road patrol deputies, who have the most interaction with the public. We are already in the process of widening this safety campaign to acquire more body cameras. It is my intention for all uniformed deputies agency wide to wear them while on duty.
There will be only two kinds of law enforcement agencies in the future: those that start using body cameras reactively because something terrible happened and those that use them because they proactively realize the great benefit of the devices. WE ARE PROACTIVE. Hesitation to use body cameras could only serve to erode the solid trust we have built within our community.
I believe body cameras are a win-win for our hard working deputies and for all residents of Broward County.
Sheriff Scott Israel
The following was posted by Broward Sheriff, Scott Israel on BSO's Website in March of 2016
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