Monday, March 25, 2013

Can I Legally Film the Police in California?

Update:  Gov. Brown signed SB 411 into law on 8/11/15.  This bill specifically states that the act of filming police in public is not illegal and should not be the basis for arresting or detaining a person.  SB 411 does not create any new rules, but merely affirms and restates existing law.  For more information, click here.  

The simple act of filming police while they perform their official duties is protected by the First Amendment. The recent proliferation of cheap, ubiquitous video cameras has had a major impact on the way police do their jobs.  Cops know that any contact with citizens can quickly go viral on the internet, for good or for bad. Police are more likely to act professionally when they know that they will be held accountable for their actions.  So film away, post it to Youtube, get a million hits and become an internet celebrity.  If the cops give you any shit, tell them I said it was OK. 

The right to film the police has been consistently affirmed by the courts, most recently in the case of ACLU v. Alvarez, 679 F.3d 583 (2012).  There, the ACLU successfully won an injunction to prevent enforcement of an Illinois eavesdropping statute.  The law prohibited any recording of any conversation unless all parties consented to the recording, regardless of where the conversation occurred or whether the conversation was clearly audible to the public.  The ACLU regularly monitors police activity in Chicago to deter and document official misconduct.  They argued that the Illinois law unconstitutionally prohibited them from documenting public conduct, thereby infringing upon their right to free speech.  The Federal Appellate Court agreed.  

People get themselves into trouble, though, when "filming the police" becomes "interfering with police".  As discussed above, you have a right to document the cops.  In fact, please do.  You do not have a right, however, to waste their time.  Police are paid by the hour.  Their salaries come from our taxes.  When you waste the cops' time, you waste everyone else's tax dollars.  That being said, you may not delay, obstruct or interfere with official police conduct in any way.  When you stick a camera in a cop's face, believe me, he is itching for a reason to take you to jail. Section 148(a)(1) of the California Penal Code gives him the authority to do so if he believes that you are making his job more difficult or more time-consuming than necessary.  

I spoke with a few current police officers (who wish to remain nameless) while researching this piece.  I got the impression that each of them understood and respected the constitutional right to film official public conduct. Like most people, though, cops do not appreciate anyone making their jobs more difficult than necessary. Unlike most people, these guys carry both guns and badges. Piss off a fry cook and you might get a loogie in your hamburger.  Piss off a cop and you might BE a hamburger.  Here are some helpful tips that they offered for anyone who wants to film the police without being beaten and thrown in jail:

-Do not interfere with their official duties.  The rest of these rules are basically different ways of reiterating this first commandment. 

-Stay out of their way.  They need space to do their jobs.  If you crowd them, them will "feel threatened", and we know what happens when cops "feel threatened" (see previous posts re: Kelly Thomas).  

-Don't ask them a bunch of questions while they are trying to work.  Don't complain about how they're doing their jobs, and don't tell them that they're using excessive force.  Document it, get it on film, and complain to their supervisors later, but always remember the first rule.  

-If you intentionally provoke the police, don't be surprised if you get the reaction that you're looking for.  Maybe have someone else hold the camera for this part.  

If you or a loved one is hassled for filming police (or arrested for interfering / resisting), call my office at (714) 449-3335 for a free consultation.  Ask for John.  

Good luck out there and thanks for reading.  Remember, don't give the cops anything to do.