While not any sort of panacea for police violence, videos of police officers in the US killing unarmed Black men like George Floyd, Oscar Grant and Eric Garner have undeniably been an essential part of the conversation around racist, brutal policing in the United States. Police violence is a much longer lasting pandemic than COVID-19, and perhaps as resistant to treatment, though activists are making progress. Black Lives Matter has grown the conversation around police brutality for nearly seven years but, as this Washington Post headline sums up, “In protests against police brutality, videos capture more alleged police brutality.” 

Fortunately, in the US, you have the right to record. That means you have the right to take out a camera or cell phone and film law enforcement in public. Police officers lie, and civilian video (much more often than body cam footage) has helped expose this over and over again. The police are clearly aware of this, and they are retaliating.  Repression of photographers and videographers isn’t new but the current level of violence is unprecedented. It’s important to know your rights when filming, and to document any violations of those rights. While it may not stop the cops in the moment, it can help afterwards, especially in a courtroom. 

What Courts Have Said

If you want to know the legal basis for your right to record, check out this analysis of recent case law from Electronic Frontier Foundation (EFF). In summary, the Supreme Court has not ruled on the right to record, but Federal courts across the country have held that there is a First Amendment right to openly record the police, and have invalidated state and local laws that impinge on that right. Courts have also held, however, that individuals cannot interfere with police operations. Underlying these decisions is the understanding that recording the police is constitutionally protected. 

You should also be aware of state wiretapping laws that govern when a private conversation can be recorded. These laws were originally created to protect people from phone surveillance, but in some cases they have been used to challenge the right to record law enforcement. However, most states have upheld that it is legal to openly film and record audio of police in public without their consent. You can check WITNESS’ map of state wiretapping laws to learn the law in your state. 

Be Safe

Filming the police is not “safe,” but it is important. If you’re considering doing so, keep in mind your risk—especially if you are already at greater risk for police brutality. If you’re someone who enjoys relative privilege with the police, especially if you are white, this may be a particularly good way for you to support Black Lives Matter in your community.  Potential negative consequences include seizure of your device ,arrest, ongoing harassment, or serious violence. There have been incidents across the country of police telling or forcing people to stop filming. Some police have shot rubber bullets at people who are filming—one photographer has been blinded in one eye, and she’s not likely to be the last. Police in some cities also appear to be targeting people who are filming them for arrest. Police are even targeting accredited press. If you’re thinking about filming the police, it’s likely you’ll have more police encounters than you otherwise would— especially if you’re someone who has been in a privileged position with regards to the police cops most of your life. 

It’s also important to keep in mind when you are filming the police that you will be forced to view police violence in real time. This can cause severe emotional distress and even long-lasting post-traumatic stress disorder. Part of your safety includes psychological safety. Make sure you have tools for handling trauma and stress, such as the tips on trauma and self-care provided by Dart Center for Journalism and Trauma. For mental health resources through a radical lens the Fireweed Collective may be helpful.   

Know Your Rights 

While it has been established that individuals have the right to record the police, what happens on the street frequently does not match the law. 

WITNESS has many resources on what to capture if you’re filming police, but you should also know your rights. The National Lawyers Guild (NLG) is a bar association that does police accountability work and has “know your rights” resources in multiple languages. Cop Watch is a loosely organized group that has chapters across the country and also provides resources on filming the police everyday. 

Here are the most essential things to keep in mind:

  • If the police start interacting with you, treat the encounter as you would any encounter with law enforcement. That means that you should not consent to any search and you should not answer any questions. Police can and will break the law, but asserting your rights later can help in court cases.
  • If police try to interact with you, first ask if you are free to leave. If you are, do so. If they say no, do not talk to them, and make sure to say: “I am going to remain silent.  I want to see a lawyer.”  If they ask if they can search you, or if they start doing so against your will, say audibly “I do not consent to a search.”  
  • Regardless of what type of encounter you have with police, keep in mind that they do not have the right to take your phone from you, much less look through it or delete content, and they cannot force you to unlock your phone for them. This is why WITNESS always recommends that you use a minimum 6 digit password for your phone and NOT face or fingerprint unlocking. 
  • Stay calm and courteous, even though the situation may be stressful. Other people are there to express how they feel about the police- you’re there to support those people in the best way possible. If you get arrested or get into an altercation with the police, you won’t be able to keep filming them!
  • Be sure that you are not interfering with police operations, and stand at a safe distance from any encounter you film.
  • While it is not legal for an officer to order you to move because you are recording, they may still order you to move. If you do not comply you could be arrested. If you do want to comply, consider complying with the smallest movement possible, and verbally confirming that you are complying with their orders. For example, if an officer says “You need to move back,” you might want to consider calmly saying “yes, officer, I am moving back” while taking a few steps back. You may also want to document yourself doing so, for example by filming your feet. 
  • If you are at a demonstration, police will often issue a dispersal order—in general, they will declare a protest an unlawful assembly and tell people to leave. Unless you are granted permission to stay, that order applies to you, too. If you do not comply, you should expect to be arrested.

Below are some helpful resources and tips related to interacting with and filming the police:

  • WITNESS’ resources on filming the police in the United States, as well as this resource on filming protests, demonstrations, and police conduct more generally. 
  •  The National Lawyers Guild (NLG) “Know Your Rights” pamphlet (available in multiple languages) provides basic information you should know for interacting with the police.
  • Berkeley Cop Watch has guides and examples here.

Keep Filming

While many people pinned their hopes on body camera footage to address the pandemic of police violence in the US, body cams have fallen far short of those expectations. What has made change is organizing, and video is only a small part of that. However, its importance is undeniable. It’s also undeniable that it is getting more and more dangerous to film the police. 

This blog post was adapted from this post, originally written for the Electronic Frontier Foundation in 2015. For more information about the Right to Record outside the United States, as well as in the US, check out WITNESS’ Right to Record landing page. 

18 June 2020

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