Recording Police Action: Criminal Activity or Constitutional Right?

KTVU.com reports a California man was arrested in April 2011 for recording video of police officers from inside his garage. The man recorded an encounter when he saw police arresting a man down the road at gunpoint. The recording was taken on his cell phone.

Police eventually caught wind of this recording, showed up at the recorder's home, and demanded the cell phone as evidence. When the suspect refused to hand over the phone, police arrested him on the spot for interfering with the police.

Such occurrences have become more prominent throughout the last several years, especially with the availability of camera phones and other portable recording devices. These occurrences have sparked both debate and litigation about the constitutionality of recording police officers publicly performing their duties.

Prosecutions Increasing for Videotaping the Police

The preceding story has been played out in many jurisdictions numerous times. For example, Time.com reported a former National Guard staff sergeant recorded being cut off by an unmarked vehicle, approached by a man wearing normal clothes, aiming a gun, while not identifying himself as a state trooper until the end.

The staff sergeant received only a speeding ticket that day. However, his main concern for him and his criminal defense attorney are now the wiretapping charges - punishable by up to 16 years in prison - he now faces.

Legal Arguments

Time.com also reports that prosecutors believe the audio aspect of the recordings violates wiretap laws because, in certain states, all parties to a conversation must consent to recording a private conversation.

The ACLU, however, believes a police officer - when engaged in arresting or questioning someone - is engaged in a public act and not a private conversation. According to ABCnews.com, the ACLU also argues that everyone has a First Amendment right to take video of police officers in public as they perform their official duties.

While most people decide to err on the side of caution, lest they face criminal charges, there are those who believe strongly in their First Amendment right in the public domain. In a recent Federal Court opinion, Glik v. City of Boston, the court held that the First Amendment allows such activity, and that videotapes that the police take themselves (for example, the California Highway Patrol) frequently shed light on what would otherwise be a he says/she says situation. As long as one is not actually interfering with the arrest/contact, any honest cop or citizen would prefer to have a video of the incident.