It's perfectly legal to record police -- openly or covertly -- whenever they are on duty in public, as long as you don't interfere. Recording police going about their business is a protected First Amendment activity.
It's also a crucial one. Recording the police provides information to the public about how officers handle events ranging from everyday interactions to crisis situations. By providing that information, recording the police actually protects and promotes democracy and the free discussion of governmental actions. It may also reveal -- or even deter -- police misconduct.
If you choose to record the police, you can feel confident that your actions are perfectly lawful as long as they don't interfere with an officer's duties. That said, some police officers will be unaware of your rights and may try to stop you, confiscate your phone or camera, or even arrest you. Therefore, it is a good idea to have the number for an experienced attorney at hand.
Recent federal case reconfirms the legality of recording officers
A 1968 Massachusetts law called "Section 99" made it a crime to secretly record private citizens or government workers even when they were performing their official duties.
Unfortunately, Boston police had been using this law to punish people for secretly recording police officers. And, since it can be much more intimidating to record police openly, the effect of the law was to pressure activists not to record police at all.
Indeed, two civil rights activists contacted the ACLU of Massachusetts because they were afraid recording police going about their business would subject them to arrest and prosecution, even if they did so openly. These concerns led them not to record the police at all.
The ACLU of Massachusetts sued the Boston Police Department in federal court. The department argued that Section 99 prohibited secretly recording police performing their duties in public. The U.S. District Court for the District of Massachusetts ruled that interpretation was unconstitutional.
When police are going about their duties in public, the court ruled, they have "diminished privacy interests." Meanwhile, the public has a constitutional interest in obtaining and disseminating information about how the police behave and in monitoring police behavior to deter misconduct.
The ruling follows a unanimous First Circuit case from 2011 in which a man was arrested for openly recording police. That ruling made no distinction between the public's right to record openly or secretly -- both are protected by the First Amendment. And, although these rulings don't directly apply in Washington, they align with a long series of similar opinions across the country.
If you have been arrested for recording police or have questions about your legal rights, contact Pewitt Law, PLLC.