In most cases, in the State of California, a person can video record a police officer when they are stopped for questioning. There are many reasons someone would choose to film a police officer. Perhaps they believe they have been wrongfully stopped while driving, or a police officer is wrongly accusing them of a crime. Perhaps they are witnessing something that a police officer is doing to another party that they feel violates the law or the other person’s rights. In most cases, filming a police officer is legal. However, there are several requirements a citizen must follow if they want to film a police officer legally, and not receive a charge of “interfering with police.”
The State of California allows citizens to film police officers under certain circumstances and conditions.
1. Citizens can film or videotape police officers during the course and performance of their official duties, as long as the person filming does not interfere in any with the officer’s ability to do their job.
2. Any filming or recording of a police officer must be done in such a way that it is open and obvious to the police officer.
3. If questioned, let the police officer know that you are asserting your First Amendment rights under the Constitution of the United States. Those attempting to videotape police officers should always remain respectful and calm. Always ask if you are “free to go.” Unless a police officer is prepared to arrest someone based on probable cause that a crime is about to be committed, or has been committed, they must not detain a person unlawfully.
4. Police officers oftentimes ask those who film them for their identification. In response to this, a person should ask if they are being detained. Under California law, police officers are not allowed to request identification of any kind unless they believe that the person is in the process of or intends to commit a crime. Nonetheless, providing identification can help diffuse the situation if a police officer is conducting an investigation. While you may know you have not committed a crime, there could be extenuating circumstances you are not aware so it is always best to comply with reasonable police commands and speak to police in a polite, respectful manner.
5. If a police officer warns a person to stop filming or attempts to indicate that videotaping of a police officer is against the law, calmly state that the act of videotaping police officers is a legal right.
6. A person should never point their camera or smartphone at a police officer in any way that could be interpreted to be a weapon or a gun. Never give a police officer probable cause to arrest or harm you.
7. Every person should have their phone password-protected so that the police officer could never access it and delete a recording.
8. A person should not be surprised if they are arrested by a police officer that they are videotaping. Many police officers are uncomfortable with being videotaped. While this is an illegal arrest, where there is no criminal activity, this does happen. If it does, remain calm and exercise your right to remain silent. Ask to speak with a lawyer.
Police officers are citizens and are afforded similar rights as any other American. If a police officer is not on-duty, you may not have the legal right to film or video record them under certain circumstances. It is also illegal to audio record someone unless they consent or under very narrow legal exceptions found in California’s penal code.
Critically, you may never interfere with a police officer when he/she is acting in the line of their official duties. For example, a reporter or bystander with a camera trying to get between a police officer and a suspect may have violated the law.
Additionally, if you secretly film a police officer, you will be in violation of California Penal Code Section 647. This law states that videotaping a police officer with a concealed camera is a misdemeanor and carries with it up to one year in the county jail and fines of up to $1000. When it comes to audio recording, (or video recording specifically for audio) California is a “two-party” consent state which means it’s illegal to audio record a conversation without all parties consenting.
The Law is on Your Side – The law clearly states that if you follow proper protocol, you may videotape police legally. Therefore, if you are stopped for questioning for any reason by a police officer in the state of California you have a right to videotape the interaction as long as you follow the legal guidance listed above.
However, some police officers are simply unaware of these laws, and will still arrest a person for videotaping them. If you are arrested for videotaping of a police officer, you should behave politely and calmly and simply state that you are exercising your First Amendment rights and your right to remain silent after that. The worst that should happen is that you are in jail for a short period of time as this gets sorted out.
However, if you attempt to resist arrest in any way, you may face a charge of resisting arrest under California Penal Code Section 148(A) PC. It is important that any form of violence or force towards a police officer could result in a charge of Battery on a Peace Officer (California Penal Code Section 243(b) PC) or Evading an Officer (California Vehicle Code Section 2800.1 VC). Always remain respectful, calm and non-violent even if you are being arrested.
Lawsuit Against the Police for Retaliation – If you filmed a police officer within your First Amendment Constitutional rights and were arrested without cause, you may have a solid foundation for a lawsuit under 42 U.S.C. Section 1983, for the deprivation of your civil. You may claim that your First Amendment right to record was violated as well as your Fourth Amendment right against unlawful arrests. Whether or not you have a strong case will rest upon the facts and circumstances of your case as well as in which jurisdiction the arrest occurred.
If you were charged with any crime related to videotaping a police officer, or charged with resisting arrest due to activity involving filming a police officer, you should immediately contact an experienced police misconduct attorney as soon as possible to help you defend your Constitutional rights. For more information about your next steps, and to schedule your free consultation, contact the attorneys at V. James DeSimone Law at 310-693-5561 to help ensure that your legal rights are protected.
*Note: This article was accurate at the time published and cites specific California laws, however laws change over time and this article may not have been updated in a timely manner to reflect those changes. Please contact us to discuss the specifics of your matter.