By Ruth Maurice
Update: In February of 2016, in a departure from well-established law, a federal judge ruled that the First Amendment doesn't give citizens the right to "photograph police absent any criticism or challenge to police conduct." Though the ruling could be overturned and doesn't set precedent throughout the country, it's worth noting. (Learn more about the case at our blog.)
You may be able to sue, but you won’t necessarily win. If an officer unlawfully arrests you for recording her, you may be able to bring a deprivation of civil rights action against her under 42 U.S.C. § 1983 (“section 1983”), a federal law called “Civil action for deprivation of rights.” Your claims might be for violation of something like your First Amendment right to record and your Fourth Amendment right against unlawful arrest.
Courts have consistently held that the First Amendment gives you the right to record—whether through photographs, or video or audio recording—officers in public while they perform their duties. (For much more on this right, including limitations, see Recording the Police: Legal?)
“Clearly Established” Right
In many instances, an officer violates your First Amendment rights by stopping you from recording her—hence the possibility of a section 1983 lawsuit. (There may be other grounds for a lawsuit, whether under federal or state law—see below.)
To complicate matters, though, an officer can’t automatically be found liable for stopping you from recording, or for arresting or otherwise harassing you for recording. For a successful lawsuit under section 1983, the court must find that the First Amendment right to record is “clearly established.”
This “clearly established” requirement means the court would have to find that recording is a First Amendment right that’s sufficiently clear. It’s sufficiently clear if a reasonable officer would understand that arresting someone—for violation of a wiretapping law, for example—violates the right to record. (In some states and situations, however, secretly recording an officer might actually violate a wiretapping-like law. See Is it legal to secretly audio record the police?)
Difference in Interpretation
Courts don’t entirely agree on whether the right to record an officer in public is “clearly established.” This means that, in some jurisdictions, an officer may be protected against being sued for violating your First or Fourth Amendment rights.
Some courts have ruled that a First Amendment right to openly record police officers' public performance of their duties is clearly established. (Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Johnson v. Hawe, 388 F.3d 676 (9th Cir. 2004).) To these courts, the First Amendment trumps wiretapping, electronic surveillance, and eavesdropping laws that might appear to make recording an officer illegal.
Other courts have found that the right to record is not clearly established. They note, for example, that the United States Supreme Court hasn’t ruled on whether there is an unrestricted First Amendment right to videotape an officer during a traffic stop. (Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010).)
If the right is not “clearly established,” an officer has “qualified immunity,” which is, essentially, a protection for public officials against lawsuits for things they do in their official capacity. Qualified immunity provides public officials with “breathing room to make reasonable but mistaken judgments." It shields them from civil liability for actions that do not violate clearly established rights. Clearly established rights are rights a reasonable officer would have understood. (Stanton v. Sims, 134 S. Ct. 3 (2013); Gericke v. Begin, 753 F. 3d 1 (1st Cir. 2014).)
Some wiretapping laws are unclear. Suppose there's an unclear law leading an officer to honestly and reasonably—but mistakenly—believe he can arrest a person for recording as a violation of a wiretapping law. That officer may be protected from liability if he enforces the arrest. For example, he might be immune from liability for a Fourth Amendment violation of false arrest. (See Matheny v. County of Allegheny Pa., 2010 WL 1007859 (W.D. Pa. 2010); this isn’t a “reported” opinion, but it shows how a court might approach the issue.)
Incentive to Stay in the Dark?
Some commentators worry that the state of the law might provide certain police departments incentive to keep officers intentionally "uninformed" of the First Amendment right to record. The departments’ theory would be that, by keeping officers in the dark, they can claim the right wasn’t “clearly established,” which might trigger qualified immunity for officers who violate the right to record. (Radley Balko, “How ‘good faith’ creates bad policy,” The Washington Post, May 22, 2014.)
Talk to a Lawyer
If you feel law enforcement has violated your right to record police, you may have a civil rights claim under 42 U.S.C. § 1983—whether against an officer, the officer’s department, the city, or some other entity. (Perhaps you were unlawfully handled or arrested for recording an officer, or your recording device or recordings were unlawfully seized or confiscated.) As discussed above, however, the officer may be immune from suit. That said, there may be other grounds for a lawsuit—perhaps provided by state law or arising from something else the officer did while infringing your right to record.
It’s important to contact an attorney knowledgeable in civil rights law to give you advice and protect your claim. And you should consult a criminal defense lawyer if you face criminal charges.