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.
[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).
[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 Lᴇᴡɪꜱ & Cʟᴀʀᴋ L. Rᴇᴠ.
543, 556 (2014); U.S. Const.
amend. I.
