Even though most courts across the country have recognized that citizens have a clear First Amendment right to record police officers in public places, and many police departments have policies in place recognizing that right, police officers across the state are still seizing recording devices and detaining or arresting individuals that record them.
Grable Grimshaw PLLC represents individuals in civil rights lawsuits who were assaulted, detained, or arrested for simply recording police activity. Police officers simply assert that if you are holding a camera, then you are probably interfering with them and breaking the law. They might also assert that you may have filmed a crime, so your recording device has “evidence” that needs to be seized.
These tactics are generally not recognized in law. First, the Texas Legislature made it a defense to prosecution to the crime of Interference with Public Duties if the “interruption, disruption, impediment, or interreference alleged consisted of speech only.” See Texas Penal Code § 38.15(d). Filming police activity is speech. Therefore, if you are filming police activity from a reasonable distance and not physically impeding or disrupting officers, then you are likely not committing a crime.
Second, a police officer cannot take your recording device from you simply by asserting that you have “evidence” on your recording device. The officer can ask to take the device, but you cannot be forced to comply. The officer would otherwise have to go get a warrant unless exigent circumstances exist (such as if you give the officer a reason to think that you are deleting evidence).
Why People Film Police Activity
The reasons why people want to film police activity ranges. Activists want to shed light on questionable police tactics. Bystanders might be curious about a current event. Others may want to simply portray police officers in a certain light (negative or positive).
What To Do If You Want to Film Police
- Stand in a public place. It is best to maintain a safe distance from officers so they cannot create an argument that you are physically impeding their investigation.
- If an officer speaks with you, and you are not being detained, then you do not have to respond. If the officer tells you that you are being detained, have them identify the alleged crime you are being suspected of committing.
- If the officer asks to view your recording device, you do not have to consent. Make clear to the officer that you do not intend to destroy or delete anything, and they are free to go secure a warrant (or, you can simply consent, if you choose). If the officer takes your device, they are not permitted to view or search it (and they certainly do not have authority to delete or destroy anything). Make sure you get a property receipt, so you can prove that a police officer took your device.
- If you are detained or arrested, comply with the officer’s commands. The best way to fight unlawful conduct is in the courtroom and not on the street. Make sure the officer has their body worn camera activated.
- Contact a lawyer. Grable Grimshaw PLLC has experience in dealing with these situations.
What Can Police Departments Do to Avoid Litigation
- Implement a policy that recognizes a citizen’s constitutional right to film police activity. The International Association of Chiefs of Police (a more-than-century-old professional law enforcement association) even provides a Model Policy on Recording Police Activity to assist police departments with crafting and implementing a policy on recording police activity.
- Train officers on the policy, how to interact with individuals filming them, and how to de-escalate any interaction between officers and citizens that film police activity.
- Take corrective action. Police departments should acknowledge when a police officer violates a policy.
Police officers that are not trained or improperly trained treat individuals holding cameras as enemies. The “us” versus “them” approach is not helpful and will only escalate interactions and create exposure for the officer and police department. Police officers should be trained on how to interact with those within the community rather than develop tactics on how to deter people from filming (which include the unlawful seizures and arrests of law-abiding citizens). When police departments implement policies or practices to deter constitutional activity, it only draws more attention.
There is nothing wrong with people reporting on government activity taking place in public spaces. If officers are not doing anything wrong, then they should not be concerned with being filmed.
If you were detained or arrested by law enforcement for simply recording police activity, or you had your recording device seized, contact Grable Grimshaw PLLC today. Please call 210.761.5687 or fill out our contact form to schedule a consultation with a San Antonio civil rights attorney. We represent clients throughout Texas.