Citizen’s Right to Record On Duty Officers


Doreen Monk

The issue of citizens recording law enforcement activity has become a strong point of contention throughout our nation as cell phone and technology use has increased over the last several decades.[1]  Questions of whether individuals possess a right to record an on-duty police officer, would become relevant under the First Amendment of the United States Constitution.[2]  When looking at the broad spectrum of such an issue, we must also be sure to turn to the rights and interests of law enforcement officers.  Federal Circuits have taken on various standpoints regarding the topic of recording on-duty law enforcement activity, and ultimately, no common consensus has been reached as far as what rights a citizen and officer may have.
Now, one might be saying to themselves “But my state has wiretapping statutes, and this prohibits someone from videotaping me (the other party), unless I consent to the recording.” You are not wrong. However, then proceed to ask yourself, “who is considered a party under Florida’s wiretapping statute?”  Eleventh Circuit state courts consisting of Alabama, Florida, and Georgia, each have statutes pertaining to the right to record, known as “wiretapping” statutes.[3]  In Florida, one cannot record any communication unless all parties provided their consent, however statutes in Georgia and Alabama require only consent by one party involved in the communication.[4]  Throughout the most recent years, several circuits have ruled on whether-or-not citizens possess a First Amendment right to record law enforcement, even though they are parties to a recording.
Courts that have come down with such rulings regarding a citizens’ right to record on-duty officers have taken various positions on how far this right extends.
The notable federal case that established the right to record on-duty police officers is Glik v. Cunniffe,[5] a First Circuit case.[6]  In Glik, a man was arrested for openly filming an arrest in violation of a wiretapping law that criminalized nonconsensual recording, however the charges were dropped and Simon Glik filed a civil rights suit alleging a violation of his first amendment rights.[7]  Prior to Glik, in 2000, the Eleventh Circuit in Smith v. City of Cumming[8] first recognized a right to record law enforcement activity, when the Court established a right to record officers conducting traffic stops, though this right is subject to time, place, and manner restrictions.[9]  Subsequent cases in the circuit, such as Bowens v. Superintendent of Miami South Beach Police Department,[10] have affirmed the right to record.[11]  Case law throughout the Eleventh Circuit has not more widely discussed the time, place, and manner restrictions which were originally laid out in the Smith case.  On the other hand, courts in the Third and Fourth Circuits have declined to recognize the existence of whether a First Amendment right to record police activity.[12]
Courts analyzing a citizens’ recording rights should not overlook or fail to take in to account the safety interest of police officers when being recorded while on the job.  There is a heightened risk that comes with taking on the job of a law enforcement officer, and the mere presence of a citizen near an active scene may present additional challenges to the officers.[13]  Allowing for a citizen to approach an active scene may be widening the level of potential harm to all those around.  In addition, police today are under an immense level of scrutiny, and knowing their activities are recorded may give officers a sense of hesitation, resulting in potentially harmful situations for all involved parties.[14]
On the other hand however, the recording by a citizen can also be a powerful tool bringing justice to a situation while raising social and political awareness.[15]  Police misconduct has been brought to the forefront of many American’s minds as of late, as we see individuals recording citizens’ deaths caused by law enforcement officers.[16]  Possibly one of the most controversial topics today, is that of a law enforcement’s discretion. The public’s trust in law enforcement stands clear for some, however, for others has provided a level of utmost concern.
Ultimately, it is essential that while citizen’s attempt to record on-duty officers, Courts keep in mind the protections provided by the First Amendment Freedom of Speech and recording rights, while continuously taking into account the safety of individual citizens as well as those on-duty officers doing their job.[17]


[1] Filming and Photographing the Police, aclu, https://www.aclu.org/issues/free-speech/photographers-rights/filming-and-photographing-police; see also U.S. Const. amend. I.
[2] See id.
[3] See Ala. Code § 13A-11-30 (1); Ga. Code Ann. § 16-11-66 (a); Fla. Stat. § 934.03.
[4] Id.
[5] 655 F.3d 78 (1st Cir. 2011).
[6] Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011).
[7] Id.; see also U.S. Const. amend. I.
[8] 212 F.3d 1332, 1333 (11th Cir. 2000).
[9] Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
[10] 557 F. App’x 857 (11th Cir. 2014).
[11] Bowens v. Superintendent of Miami South Beach Police Dep’t, 557 F. App’x 857, 863 (11th Cir. 2014).
[12] See Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010); Szymecki v. Houck, 353 F. App'x 852, 852 (4th Cir. 2009); Recording Police Officers and Public Officials, Digital Media Law Project, http://www.dmlp.org/legal-guide/recording-police-officers-and-public-officials.
[13] See David Johnson, The Most Dangerous Jobs in America, Tɪᴍᴇ (May 13, 2016), http://time.com/4326676/dangerous-jobs-america/.
[14] See Kevin Johnson, Amid Heightened Scrutiny, it’s ‘a Precarious Time’ for U.S. Police Chiefs, USA Tᴏᴅᴀʏ (May 24, 2016), http://www.usatoday.com/story/news/nation/2016/05/23/police-chiefs-ferguson-san-francisco/84785128/ (“For many police chiefs, the spotlight has been especially harsh for the past two years and there is no let-up in sight.”).
[15] Gregory T. Frohman, What Is and What Should Never Be: Examining the Artificial Circuit "Split" on Citizens Recording Official Police Action, 64 Case W. Res. L. Rev. 1897, 1911 (2014).
[16] See Leah Donnella, Two Days, Two Deaths: The Police Shootings of Alton Sterling and Philando Castile, ɴᴘʀ (July 7, 2016), http://www.npr.org/sections/codeswitch/2016/07/07/485078670/two-days-two-deaths-the-police-shootings-of-alton-sterling-and-philando-castile.
[17] See e.g. Kimberly McCullough, Changing the Culture of Unconstitutional Interference: A Proposal for Nationwide Implementation of A Model Policy and Training Procedures Protecting the Right to Photograph and Record on-Duty Police, 18 Lᴇᴡɪ & Cʟᴀʀᴋ L. Rᴇᴠ. 543, 556 (2014); U.S. Const. amend. I.
 
 

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