As mobile technology becomes ubiquitous, more and more NMA members ask us about recording traffic stops. We’re typically cautious in our response, since the fallout for engaging in what is (or should be) a basic right, can still be quite severe.
In a previous E-newsletter (Issue #77, YouTube Video vs. Wiretap Laws) we described the case of Anthony Graber, who posted online footage of a traffic stop in Maryland. Graber was subsequently harassed by police and faced up to 16 years in prison for violating Maryland’s wiretap law. Charges against him were eventually dropped.
In another case, Simon Glik was charged with illegal wiretapping for videotaping Boston police arresting a suspect. After a judge threw out the charges, Glik filed a federal civil rights suit against the city and the arresting officers. He eventually received $170,000 in damages and legal fees from the City of Boston.
Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens who are openly recording them in public
Both cases have been resolved successfully, but not before citizens engaging in protected actions were subjected to police intimidation, arrest, and lengthy and expensive court proceedings.
Note that there is an important legal distinction between the taking of a photo (which has long been protected) and the recording of audio (even as part of a video), which some states have tried to regulate using wiretapping laws. This is where the legal pitfalls lie and why you should be careful. If you choose to record a traffic stop for use in future proceedings or simply to document how police carry out their duties, what can you do to protect yourself?
Know the Law in Your State
The law in 38 states permits recording with the consent of one party to the conversation. That means you can record your own interactions with officers without violating wiretap laws since you’re one of the parties.
Twelve states require the consent of all parties before you begin recording. However, in all but two of those states (Massachusetts and Illinois) courts have ruled that those requirements do not apply to on-duty police officers because they have no expectation of privacy. In other words, it’s technically legal in the other 48 states to openly record on-duty police. Note, however, that some courts have ruled that police do have an expectation of privacy when their duties are taking place out of public view.
Don’t Record in Secret
Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear. As a result, individuals who have secretly recorded police in their duties have found themselves facing criminal charges. In most cases charges are dropped, but, again, not before the defendant has faced significant legal exposure.
Know How to Respond
If the officer becomes confrontational or questions your right to record, consider the guidelines for how to respond during any traffic stop. Be polite, but assertive. If the officer asks you to stop recording or says it’s illegal, calmly state the provisions of state law that protect your right to do so. Remember, in general, police cannot confiscate your camera/phone without a warrant or reasonable suspicion that a crime has been committed.
Don’t Take a Threatening Posture
Don’t stick your camera/phone in the officer’s face. Try to hold it at waist level and tilt it up a few degrees. It will be less obtrusive and less likely to provoke the officer. Also, avoid suddenly grabbing for your camera as the officer approaches. You don’t want the officer to mistake it for a weapon.