There are specific state laws that prohibit the recording of a private conversation unless all parties consent to the recording. These laws are discussed in greater detail in one of our a recent blog articles.
However, if you want to record a police officer, the United States Constitution comes into play and trumps state laws. Specifically, the First Amendment provides additional rights when recording a government official in the execution of their duties. Or at least that is how some circuits have interpreted it. Others have not been so clear. The United States Supreme Court has not yet definitively established whether recording a police officer is a constitutional right, but the weight of authority says that it is.
The Ninth Circuit, which is the federal court of appeals that has Nevada within its jurisdiction, has not made express rulings regarding the right to record an officer, but it has presumed the right without expounding further. See Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). The United States Supreme Court, though not specifically talking about filming police, has made it clear that the First Amendment is interpreted broadly when it comes to rights of expression directed at police officers. City of Houston, Tex. v. Hill, 405 U.S. 451, 461, 107 S. Ct. 2502, 2509 (1987).
Other Circuit Courts have been much more explicit:
[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.
Glik v. Cunniffe, 655 F. 3d 78 (1st Cir. 2011).
The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.
Smith v. City of Cumming, 212 F. 3d 1332, 1333 (11th Cir. 2000). This right is not unlimited, however. The court made it clear that the right to record a police officer it is “subject to reasonable time, manner and place restrictions.” Thus, filming that is done in a way to interfere with an officer’s duties would be stripped of its constitutional protections.
Other courts have not been so quick to embrace recording police officers as a First Amendment right: “we hold that the right to videotape police officers during traffic stops was not clearly established ….” Kelly v. Borough of Carlisle, 622 F. 3d 248, 263 (3d. Cir. 2010). But, to date, no court has taken the position that recording a police officer is not protected under the First Amendment.
Even the Department of Justice has weighed in:
The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.
Sharp v. Baltimore City Police Dep’t, Civil No. 1: 11-cv-02888-BEL.
Thus, although the law has not been uniformly established, there is little resistance to the idea that a private citizen has a right, protected by the U.S. Constitution, to film an on-duty police officer.
Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or firstname.lastname@example.org.