Article kindly contributed by Alistair Vigier.
These days, the issue of police brutality and other misconduct by law enforcement seemingly dominates news cycles with increasing regularity. More often than not, these controversies are spurred by the release of a video captured by a member of the public that goes viral online, sparking outrage and driving the public debate about the role of police in modern society. Whether these videos show brutal and violent arrests that end up with a suspect dead, police officers threatening protestors or people filming them with arrest, the rules around filming police remain both a source of confusion and significant controversy.
So, the question is, when can you film the cops? And what should you do if you find yourself in a confrontation with police officers who object to you filming them while on the job? Plenty of videos online on social media and elsewhere depict police officers violently objecting to people filming them, slapping phones out of people’s hands, and telling them they’ll be arrested for interfering with a police investigation or obstruction of justice. But, in most cases, filming police officers in a public place is not against the law and the right to film in public is a protected right for journalists and members of the public alike.
Today, the act of filming police in action is as easy as taking your smartphone out of your pocket and hitting the record button. But years ago, before the internet and before smartphones, filming police during rough arrests was up to civilians with camcorders and film crews from the long-running television show Cops. It was more than three decades ago, though, that perhaps the most famous video ever recorded of police brutality was released to the public. That video, of course, showed the brutal beating of Rodney King by a gaggle of baton-wielding Los Angeles police officers in March 1991.
King was the suspect in a robbery and led the LAPD on a chase through the streets of the city for several miles before stopping at a park. He was ordered out of the car with two others and told to lie flat on the ground. While his passengers complied, an intoxicated King went to his knees instead, leading officers to shoot him with a Taser before unleashing a brutal barrage of strikes with their police batons. Unknown to the police officers at the time, a man was across the street filming the encounter from his balcony with a newly bought camcorder.
The video, less than two minutes in length, was grainy and shaky but showed officers repeatedly striking King before he was finally restrained and put in handcuffs. King was taken to the hospital after the arrests and treated for multiple injuries. Being beaten by batons and struck more than 50 times, King suffered a broken leg and facial fractures, though the police officers involved tried to claim the injuries were minor and that the arrest was above-board and not a case of excessive force. They accused King of charging at an officer and resisting commands but little did they know, video of the now-infamous encounter was about to send shockwaves around the world. The man who filmed it sold the footage to a local television news outfit, and the video eventually made it into the hands of CNN.
Released without being charged
For King, he was released without being charged, but national outrage over the video spread quickly and the officers involved were eventually indicted for assault and police brutality. However, their acquittal on the charges set off the Los Angeles riots in April 1992, which lasted three days and caused nearly $1 billion in property damage and led to more than 50 deaths along with thousands of injuries. Though they were acquitted on state charges, two of the officers involved were convicted on federal charges for violating King’s constitutional rights. He was eventually awarded nearly $4 million in a civil lawsuit against the City of Los Angeles and died in June 2012.
Nearly 30 years after the Rodney King affair, history repeated itself but this time with deadly consequences when George Floyd, an unarmed black man, was murdered by a Minneapolis police officer who was filmed by bystanders kneeling on Floyd’s neck for nearly 10 minutes. Floyd was being arrested on suspicion of using a counterfeit 20-dollar bill. Bystander videos from the encounter quickly went viral and sparked international outrage and public debate over police use of force, especially against black people and other minority groups.
The City of Minneapolis eventually settled with the Floyd family for $27 million, but by then the man was dead, the damage was done, and like the case of Rodney King, set off massive protests against racial injustice and police brutality following the incident in May 2020.
Videotaping encounters with police
With these events in mind, it’s hard to understate the impact that videotaping encounters with police can have on the public’s perception of not only law enforcement, but the entire justice system itself. Had those videos not been made or suppressed in a way that shielded them from public view, it’s safe to say that the current societal paradigm shift against traditional policing and the state-sponsored violence it entails may have never gained any significant traction.
Smartphones like camcorders before them, for better or worse, have empowered average citizens to essentially take on a role traditionally played by members of the news media. The rise of so-called citizen journalism has seen an uptick in the phenomenon of regular, everyday citizens stepping up and documenting important historical events, happenings that would likely otherwise be downplayed or denied by police forces who too often close ranks around officers accused of misconduct.
With this in mind, civil liberties groups such as the American Civil Liberties Union and the Canadian Civil Liberties Association urge people to know their rights when it comes to filming police actions. In Canada, the country’s Charter of Rights and Freedoms guarantees the rights of citizens to freedom of expression and against wrongful or arbitrary arrests and detention by police. The CCLA published a paper in November 2021 outlining peoples’ rights related to filming and documenting police actions in public places.
The CCLA points out that while the Charter protects certain individual rights, they are subject to limitations. Filming police who are on duty and in plain view in public are generally not illegal and cops aren’t allowed to order you to stop filming unless they believe it’s a safety issue. For example, they could tell you to move farther away from an active arrest in progress or move away from a fire if they think you’re standing too close. If they are in the middle of an investigation, they can also order you to move if they think you’re putting the investigation or potential evidence in jeopardy.
Significant abuse of police authority
But, according to the CCLA, the “simple act” of recording on-duty police officers in public is not against the law, a fact that has been codified and recognized by courts and police disciplinary authorities. Decisions in cases involving police who wrongfully ordered people to stop filming have characterized the misconduct as a “significant abuse” of police authority. In turn, police do have the power to tell you to stand further away if they legitimately believe you’re in danger or interfering, but the CCLA points out that “there are very few circumstances” in which a police officer can lawfully order you to stop filming or photographing the actions of on-duty law enforcement personnel.
While the CCLA urges people to follow “lawful police orders,” the association also reminds citizens that they don’t have to answer questions or help police during investigations. But it warns against certain actions, such as filming or taking pictures of an undercover police officers to publicly out their identities, which could land you in legal hot water and see you charged with a crime.
In addition, civil liberties groups say that it does not necessarily matter whether you’re recording police from a public space or a private premises, though being on private property requires the consent of the owner. In general, filming in public places like parks or sidewalks shouldn’t be an issue, though private places where members of the public have access might cause issues, such as shopping malls or hospitals or courthouses. In the latter example, courthouses restrict the use of recording equipment in registries and courtrooms, while hospitals have restrictions in order to protect the privacy of patients. Private property owners have the right to ask you to stop filming from their property if they believe you’re trespassing, but police can’t order you to stop filming from your own property even if you are just a renter.
When police demand that you hand over your phone
Moreover, in cases where police demand that you hand over your phone, you can refuse consent if they want to search it without a warrant or without “reasonable grounds” to suspect you’ve been involved in committing a crime. If you’re being arrested, police can take your phone but you’re under no legal obligation to reveal your password. As well, even if you consent to a search of your phone, the police are not allowed to delete videos or pictures during that search.
Now that nearly everyone has a cell phone in their pocket equipped with high-quality cameras, filming acts of police brutality and abuses of authority has become easier than ever. As with the case of George Floyd, like Rodney King before him, the power of images of police brutality and excessive force has led to both riots and significant reforms as the movement to defund police departments gains steam in many major North American cities. At its heart, the right to film and take photographs in public might seem easy to take for granted, but it’s more important than ever to preserve in order to ensure accountability for police who abuse their authority.
Alistair Vigier runs clearwaylaw.com, a website that wants to encourage more people to hire a lawyer but to do research first using the website’s lawyer directory