Right to Record Government Officials Engaged in the Exercise of their Official Duties

Right to record government officials in public

A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording.

The U.S. Court of Appeals for the Ninth Circuit, which includes California, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). 

Right to record government officials in public

The First Amendment generally protects filming and audio recording of government officials engaged in their duties in a public place, subject to reasonable time, place, and manner restrictions. For example, members of the press and public may record a police officer during a protest or traffic stop, so long as the person does not interfere with the officer’s ability to perform his duties.

Although the Supreme Court has not addressed the issue, six federal appellate courts have explicitly recognized this constitutional right to record under the First Amendment, reflecting a growing consensus on the matter. See Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017); Am. C. L. Union of Ill. v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

Most states’ recording laws only restrict recording in public places when participants have a reasonable expectation of privacy, and therefore state recording laws generally do not conflict with this First Amendment right. Laws that do not have such a limitation, however, may violate the First Amendment.

See, e.g., Project Veritas Action Fund v. Rollins, 982 F.3d 813, 817, 836 (1st Cir. 2020) (finding that the Massachusetts recording law violates the First Amendment as to its prohibition of “secret, nonconsensual audio recording of police officers discharging their official duties in public spaces”).

Implied consent

It is generally legal to record or film a face-to-face interview when your recording device or camera is in plain view, or to record any type of conversation when the parties are warned of the recording and continue with the conversation. The consent of all parties is presumed in these instances. See, e.g., Alexander v. Pathfinder, Inc., 189 F.3d 735, 743 (8th Cir. 1999). It is a best practice, however, to record the subject’s verbal consent

Expectation of privacy

Recording laws generally only require consent to an in-person conversation if the individuals being recorded have a reasonable expectation of privacy. Not every state’s laws make this distinction, however.

To determine whether there is a reasonable expectation of privacy in a specific situation, courts often look at the totality of the circumstances, including where the conversation occurred (was it in public? in plain view of others?), what was being discussed (was it private in nature?), and how loudly the individuals were talking (could bystanders hear?). It is not always easy to predict what a court will do, given the fact-dependent nature of the analysis. In general, though, a person’s home has special significance and in-person conversations there have the greatest expectation of privacy. Additionally, if the in-person conversation occurs in a public place, and especially if the parties are talking loudly, there is no reasonable expectation of privacy.

Recordings made as part of the newsgathering process would not fall into this category. See, e.g., Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn. Ct. App. 1995).

Possessing and publishing illegally obtained recordings

As explained above, federal law and almost every state make it illegal to make, possess or disclose the contents of an illegally recorded conversation.

If a journalist receives a recording that was made illegally by someone else, whether the journalist can lawfully publish or broadcast it may first turn on whether she knows it was illegally obtained. Some state laws only prohibit disclosure if the person disclosing the recording has the knowledge that it was recorded illegally.

Even when the journalist knows the recording was made by another person illegally (for example, without the requisite consent), the First Amendment protects the journalist’s disclosure of that recording to the extent it contains truthful information of public concern, and the journalist was not engaged in the illegal conduct. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that several news media defendants could not be held liable under the federal wiretapping statute or Pennsylvania recording law for broadcasting information obtained through an illegal recording of a private conversation. The case arose when an unknown person illegally recorded a phone conversation between two local union officials in Pennsylvania and passed the recording to a third party, who then gave it to the news media. In deciding that the First Amendment protected the news media’s disclosure, the court stressed that the news media had clean hands — they did not engage in or encourage the illegal recording — and the recorded conversation was of significant public concern.

Courts have cited Bartnicki to find other situations in which the First Amendment outweighs any privacy interests in the disclosure of an illegal recording. For example, the U.S. Court of Appeals for the First Circuit held that the First Amendment prevented Massachusetts law enforcement officials from interfering with an individual’s online posting of an audio and video recording of an arrest and warrantless search of the arrestee’s home, even when the poster had reason to know it was recorded illegally. Jean v. Mass. State Police, 492 F.3d 24 (1st Cir. 2007).

Bartnicki and subsequent cases suggest a broad protection of the press against laws that prohibit publishing the contents of an illegal recording, at least when the journalist has “clean hands” and the conversation is of significant public concern. However, the case law is continuing to develop, and it is important to know the precedent in your particular state.

FIRST AMENDMENT IMPLICATIONS

The First Amendment of the U.S. Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This further complicates how to handle these “auditors” because they may not actually break a law.

Many of the U.S. Circuit Courts of Appeal have ruled, and the U.S. Department of Justice has taken the position, that citizens have a First Amendment right to film police performing their duties in public.

The case of Glik v. Cunniffe is one of the more influential, and oft-cited cases in this line of jurisprudence. In this case, Boston police officers arrested the defendant Simon Glik when he recorded an incident with his smartphone where officers were taking another individual into custody on the Boston Common. Glik was charged with violating the wiretap statute, disturbing the peace, and aiding in the escape of a prison-er. All the charges were subsequently dismissed for lack of probable cause. Glik then filed suit under 42 U.S.C. § 1983 alleging a violation of his First Amendment rights.

The case settled, but it was determined that if the police are aware that they are being recorded, it is not unlawful for a citizen to film law enforcement officers in the discharge of their duties in a public space. The First Circuit Court of Appeals ruled that “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.”

The Court further advised that “such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.” As a result, the Court concluded “we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was ‘secret’ merely because the officer did not have actual knowledge of whether audio was being recorded.” Notably, the Court determined that this state of the law was well established at the time of the arrest, and there-fore, denied the officers’ claim for qualified immunity from Glik’s First Amendment claim.

Other courts across the country have determined that citizens have a First Amendment right to record law enforcement personnel performing their duties in in public.

Some courts have even taken this one step further, ruling that secret audio recording of law enforcement officials performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions.

FILMING

Our next case to review in terms of the right to film is Gericke v. Begin. On March 24, 2010, at approximately 11:30 p.m. in Weare, NH, the defendant, Carla Gericke, was following Tyler Hanslin in her car. Sergeant Kelley of the Weare Police Department pulled his cruiser behind Gericke’s vehicle and activated his emergency lights. Both Gericke and Hanslin pulled over and Sergeant Kelley parked his cruiser between the two. Kelley advised Gericke that she was not the one being detained and told her to move her car. Gericke moved her car to the adjacent Weare Middle School parking lot to wait for Hanslin.

Kelley approached Hanslin’s vehicle and Hanslin advised Kelley that he was carrying a firearm and was properly licensed. After parking her car in the lot, Gericke got out and approached the fence that separated the lot from the road. From there, she attempted to audio and video record the scene from approximately 30 feet away and announced that she was doing this. (It was later determined that despite her best efforts, Gericke was not actually able to record, but still pointed the camera as though she were doing so.) Gericke thereafter put the camera away and sat in her vehicle.

Officer Montplaisir arrived on scene and demanded to see where the camera was. Gericke refused to tell him. The officer requested her li-cense and registration. Again, Gericke refused. Gericke was subsequently arrested, her camera seized, and she was charged with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications, the New Hampshire equivalent of a wire-tap charge under Massachusetts law. All charges were dismissed. Gericke filed suit under 42 U.S.C. § 1983 alleging a violation of her First Amendment rights.

Like Glik, the First Circuit ruled that Gericke, and any citizen for that matter, has a clearly established presumptive right to videotape police activity in public. Most notably, the First Circuit provided that “reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.” The Court explained that “such a restriction could take the form of a reasonable, contemporaneous order from a police officer, or a preexisting statute, ordinance, regulation, or other published restriction with a legitimate governmental purpose.” This language from the ruling is particularly important and should provide guidance to officers as to the appropriateness of such restrictions:

The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure—for example, a command that bystanders disperse—that would incidentally impact an individual’s exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with their duties.

Likewise, other courts across the country have determined that there may be restrictions placed upon a citizen’s right to record under certain circumstances, such as in situations during traffic stops, sobriety checkpoints, and at times on public properties.

TAKEAWAYS

The major points from this article are the following:

1. A First Amendment audit is a form of activism where an individual seeks to exercise their First Amendment rights. The audits can take place in public spaces such as streets, libraries, post offices, beaches, town halls, police and sheriffs’ stations, and others. Law enforcement should be prepared to deal with First Amendment auditors and they constitutionally have a right to film law enforcement at certain times.

2. Many of the U.S. Circuit Courts of Appeal as well as the U.S. Department of Justice have ruled that citizens have the First Amendment right to film police performing their duties in public (such as in Glik).

3. There are restrictions that outweigh a citizen’s right to film such as public safety and when statutes and other laws outweigh First Amendment Rights (such as in Gericke).

Other RELEVANT CASES

Lozman v. City of Riviera Beach Supreme Court considers free speech vs. retaliatory arrests

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)

Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)

ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012)

Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)

Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)

Turner v. Driver, No. 16-10312 (5th Cir. 2017)

Fields v. City of Philadelphia, 862 F.3d 353 (2017)

Sharp v. Baltimore City Police Department, No. 1:11-cv-02888-BEL

Kelly v. Borough of Carlisle

McCormick v. City of Lawrence, 130 Fed.Appx. 987, 988-89 (10th Cir. 2005)

Szymecki v. Houck, 353 Fed.Appx. 852, 853 (4th Cir. 2009)

Bartnicki v. Vopper, 532 U.S. 514 (2001)

source  1  2   3 

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

 Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

Penal Code 148.5 PC –  Making a False Police Report in California

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process? 

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

 SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request 

Electronic Audio Recording Request of OC Court Hearings

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Download Here this Recommended Citation

“Come to me, all you who labor and are burdened,
and I will give you rest.
Take my yoke upon you and learn from me,
for I am meek and humble of heart;
and you will find rest for yourselves.
For my yoke is easy, and my burden light.”