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Filming the police: What you need to know

This year has brought seemingly countless incidents of police violence, much of it exposed via cell phone video recordings and pictures. No longer are we reliant on news organizations to tell us the story; we can break it ourselves. We are often emboldened by the ability to point, click and share, but knowing your rights in situations of filming the police can be just as empowering.

Do you have the right to film the police? Yes, but discretion is necessary. Can the police confiscate your cell phone? Yes, but they need a warrant to search photos and videos. Should you comply with police orders? Yes, but you can always file a complaint after the incident.

Let's expand on these points below.

Filming police

When police are performing their duties on the street, they are doing so in a public place and, therefore, do not have a reasonable expectation of privacy. The First Amendment protects your right to photograph and record law enforcement officials in this capacity.

If an officer enters private property in execution of a warrant or during a chase, you may not have the right to enter the property or film the police. It is important to be aware of your surroundings and your actions when filming police -- context and location matter.

For example, say you are on a public sidewalk and the police arrest a person on foot across the street. You have the right to record this action, but if you begin to harass the police or step into the street and block traffic, you could put yourself at risk of being detained.

Your cell phone

Police may confiscate your cell phone if they have reasonable suspicion that your phone was used to carry out a crime or that you may destroy evidence. However, even if police confiscate your phone, they still need a warrant to search it.

You can further protect your right to privacy by securing your phone with a numbered PIN password. A PIN password is safer than a thumbprint password popularized by the iPhone. Why? Your fingerprint is considered biometric information, or "of the body," which like fingerprints and blood, may be taken at the time of an arrest. A password, meanwhile, is considered "of the mind" and is protected by the Fifth Amendment.

When police are in the wrong

Law enforcement officers want to protect their right to privacy too. In their minds, they are "just doing their job" and may be uncomfortable with your recording in a public place. The First Amendment is nuanced, and officers may not be trained on the intricacies of the law. Because each situation is different, they may wish to detain you for filming their actions.

Even if you believe the officer is wrong to arrest you, they can be quick to escalate the use of force in high-stress encounters. To protect yourself, it may be in your best interest to cooperate with their orders and invoke your right to remain silent upon arrest. After you are released, you should write down your experience and seek the help of a criminal defense attorney.

Your use of a camera is important in protecting individual rights during an arrest, but the mind of the person behind the lens is where the discretion matters.

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The Smith Law Offices, P.C.
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