Are You Allowed To Film The Police?

by | Sep 18, 2016 | Criminal Defense
filming the police

In the wake of cellphone videos of the mistreatment or killings of Eric Garner in New York, Sandra Bland in Texas, LaQuan McDonald in Illinois, and Walter Scott in South Carolina and the broadcast of the moments after Philando Castile was shot and killed by police in Minnesota, the issue of video technology and the legality of its use on police officers in the line of duty has exploded into the public consciousness.

A quarter century after the videotaped beating of Rodney King in Los Angeles, the questions raised by that footage have yet to be fully understood by the general public.

Allegations Against Police in Pomona

The issue of videotaping law enforcement officers has flared up again in recent allegations made against the Pomona Police Department, regarding the beating of 16 year-old Christian Aguilar at the LA County Fair in September of 2015.

Aguilar’s father was being detained and escorted from the fairgrounds on suspicion of public intoxication, when Christian pulled out his camera to record the incident. He was then approached by a Pomona police officer, who assaulted Christian from behind and threw him to the ground.

The police claimed that Christian had been following too closely behind his father, that he had tried to rescue his father from police custody, and that he had attacked an officer prior to being assaulted himself.

Another bystander had recorded the entirety of Christian’s interaction with Pomona police officers, and the additional footage undermined the police officers’ story that an officer had initially been assaulted by Christian.

The man who filmed Christian Aguilar and the police officers was himself arrested on grounds of being intoxicated. The man was not administered a breathalyzer, and was released from custody.

His phone, however, remained in the possession of Pomona police for two days. During that time, the video footage of the incident with Christian Aguilar was altered to remove the first second of footage and give the impression that Aguilar had been the aggressor.

The original footage, which included the missing one second of footage, was obtained by a television station in Los Angeles, and it appears to refute the claim made by multiple Pomona officers that Aguilar had used physical force against an officer.

To the contrary, Christian Aguilar was punched and tackled by a number of police officers. The video will likely bolster a claim filed by the family against the city of Pomona for police violence and a gang-style beating of Christian Aguilar, who is now 17 years old.

Courts Have Recognized These Rights

The videotaping of police officers has been identified as a Constitutionally-protected right, under the auspices of the First Amendment. In the matter of Glik v. Cunniffe, a private citizen sued the City of Boston after he was arrested for videotaping three police officers as they made an arrest on Boston Common in 2007.

Since the plaintiff’s cellphone recorded audio as well as video of the incident, he was arrested and charged with illegally wiretapping the officers, in violation of Massachusetts law.

The wiretapping count was subsequently thrown out because it requires that the audio recordings were made in secret, while the plaintiff in the case was openly recording what the police officers were doing.

The Court determined that the First Amendment protects the filming of government officials, including law enforcement officers, in public spaces. The Court held that “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

The right of citizens to make video and sound recordings of the actions and conversations of individuals in public spaces was established in the Ninth Circuit, which includes California, in the matter of Fordyce v. Seattle in 1993.

The Glik ruling in the First Circuit extended this right to include the filming of public officials and police officers, and the Supreme Court has yet to take up this matter directly. In the absence of such a ruling, the right of citizens to record police actions in a public place remains secure.

The actions of Christian Aguilar in recording his father and Pomona police officers in 2015 were protected by the Constitution, as interpreted by the First District.

However, it clearly irritated the officers at the scene, who subsequently surrounded Aguilar, threw him to the ground, and later told a story of aggression that was at odds with the video evidence from the scene. The outcome of the Aguilar family’s claim against the city of Pomona remains to be seen, but the message of police unhappiness at being videotaped was sent loud and clear.

In a world where dashboard cameras on police cruisers, body cameras on police officers, and surveillance cameras in both private and public spaces are becoming more prevalent, it seems incongruous for police to enjoy immunity from being videotaped in the line of duty.

There are some reasonable limitations to these rights, including the videographer’s duty to obey other laws and to remain on public property while they are filming.

California, in particular, has enacted strict anti-paparazzi laws to prevent abusive behavior by those who seek to take pictures or to videotape an event. But the right to videotape police officers has been recognized by the courts.

Know Your Legal Rights

If you are told by a police officer, or anyone else, that you cannot make a recording of police officers in a public place, it is important to fully understand what your rights are.

Never resist a police officer, or give them any reason to claim that you were being aggressive or combative.

Clearly state that the right to videotape what goes on in a public place is recognized by the courts, and contained in the Bill of Rights.

This should be enough to end any controversy on the subject, but there are no guarantees in this regard. To learn more about your legal rights, call criminal lawyers at The Rodriguez Law Group today.