The Public Has a First Amendment Right to Film Police
The 10th Circuit Court of Appeals has ruled that the public has a First Amendment right to film police. This comes amid increasing pushback from law enforcement departments across the U.S., and some state legislatures considering bills to curtail that right.
Here’s what you need to know about your right to film and record the police in Colorado.
Do You Need a Criminal Defense Attorney?
If you or someone you care about is facing charges after a recent interaction with police, then it’s important to talk to a criminal defense attorney about your rights. Our Criminal Defense Team is ready to hear you out, review the facts of your case, and discuss possible legal options. Call 303-688-0944 for your case assessment.
First, Some Background on Recording Police
The past couple of decades have seen rising friction between police officers who want more space and discretion to do their jobs and a wary public armed with the technology to record their actions and hold them accountable when they go too far.
Viral videos of undeniable police brutality, such as the 2020 arrest and murder of George Floyd by a Minneapolis law enforcement officer, have increased the friction.
Police Push Back
Police departments have been pushing back. They use qualified immunity and other “catchall” offenses to discourage citizens from trying to film them.
It is important to note there are times when police must consider the safety of bystanders during a law enforcement emergency, even those trying to film the interaction. Nevertheless, law enforcement’s aversion to being filmed during volatile situations has led to legal challenges and subsequent appeals heard by six of the nation’s 12 circuit courts. All six have ruled decisively that the public has a First Amendment right to film law enforcement.
The Colorado-based 10th Circuit joined those six appellate courts in July 2022.
You Have a Right to Film Police in Public
The First Amendment of the United States Constitution protects your right to take video and photographs of things that are plainly visible in public spaces. Naturally, this includes law enforcement activities.
Police officers serve and protect, but they can have no expectation of privacy when they are in a public space and acting in their official capacity. Police cannot order you to stop recording them to protect their privacy because they have none as public peace officers.
The Right to Receive Information
Seven of the nation’s 12 circuit appeals courts have recognized the importance of being able to film police officers and other government officials when they are in public. It’s a cornerstone of our public trust in a democratic system. The public has a right under the First Amendment to receive information.
As recent events have shown, videotaping police interactions yields incredibly important information to the public.
The Private Property Exception
The only time police officers cannot be filmed is when they are on another person’s private property and the person or organization who owns the property has not given anyone consent to film the police in the area they own. In fact, the police can arrest you for trespassing if you are filming them on someone else’s private property without the consent of the owner.
If the police are on your property, you can film them, however, other members of the public cannot record them from your property without your permission.
Irizarry v. Yehia: The Case That Moved the 10th Circuit
As of this writing, seven circuit courts have ruled separately on the public’s right to film police because the U.S. Supreme Court has never stepped forward with a sweeping ruling of its own.
Before Irizarry v. Yehia in July of 2022, the United States Court of Appeals for the 10th Circuit also hadn’t spoken clearly on the matter. That’s a big deal because while the 10th Circuit is based in Denver, it covers six states:
- Colorado
- Wyoming
- Utah
- Kansas
- New Mexico
- Oklahoma
Without a definitive ruling by the 10th Circuit, law enforcement officers and police departments in those six states had a lot of gray areas in which to operate. If they didn’t want someone filming them, they could find a way to make them stop.
Case Background
On a spring morning in 2019, a YouTube journalist named Abade Irizarry arrived on the scene of Lakewood, Colorado police officers working a DUI traffic stop. Irizarry was known for publishing stories about police brutality on his YouTube channel, and he was one of four journalists filming the encounter.
One of the officers on the scene radioed Officer Ahmed Yehia that four men were filming the DUI sobriety test. Yehia soon arrived with all of his cruiser lights flashing. He continuously harassed the journalists by shining his flashlight into their cameras and then drove toward them in a threatening manner, repeatedly sounding his air horn.
Irizarry sued Yehia in federal court over the incident.
Federal Court Case Dismissed
Irizarry alleged that Yehia had violated his First Amendment rights based on prior restraint and retaliation. Prior restraint is when a government entity restricts speech before it is published. Retaliation is to punish or ‘get back at’ somebody for something they have done or are doing.
The magistrate dismissed Irizarry’s complaint in large part because a right to record police officers had not been specifically endorsed by the 10th Circuit at the time, and, as a police officer, Yehia was entitled to qualified immunity. This meant Yehia could not be found liable unless he had violated a clearly established legal right.
Irizarry Appeals to the 10th Circuit
Though the 10th Circuit had never made a precedent-setting ruling about the public’s right to film and record police, it had six other circuit courts’ decisions to refer to, such as:
Glik v. Cunniffe, 655 F.3d 78 (1st Circuit. 2011): “Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.”
Fields v. City of Phila., 862 F.3d 353 (3d Cir. 2017): “The First Amendment protects actual photos, videos, and recordings … and for this protection to have meaning the Amendment must also protect the act of creating that material.”
In Irizarry v. Yehia, the 10th Circuit agreed with the six courts that had ruled on the matter before. It decided that Officer Yehia had violated clearly established law, saying “Recording video is speech creation, not just conduct, which warrants protection under the First Amendment.”
You Can Sue the Police for Taking Your Camera
If law enforcement gets too aggressive while trying to stop you from filming, you can come back with a lawsuit.
Colorado passed a law in 2015 (C.R.S 13-21-128) that allows you to sue a police department if one of their officers interferes with your right to record them by:
- unlawfully breaking or taking your camera,
- unlawfully deleting your photos and video footage,
- intentionally obstructing your lawful attempt to record an incident involving another police officer,
- retaliating against you for recording, or trying to record, another police officer, or
- refusing to return your camera or recording without a reason.
If one of the above incidents happens to you, first file a notice with the police department responsible. They can either deny the claim or cover the costs of the damage plus give you an additional $500 for the recording.
If the police department denies your claim, you can file a civil action against them. With a lawsuit, you could recover:
- the cost of repairing or replacing the camera
- court costs
- attorney’s fees
- $500 for the recording
- up to $15,000 in punitive damages against that police department
When the Right to Film Police Interferes with Their Work
Just because you can pull a smartphone from your pocket and activate the video record doesn’t mean you can ignore all boundaries.
Many law enforcement officers don’t care if you film them. However, they must still ensure the rights and safety of the people they’re supposed to protect. To that end, they can prevent you from entering an area that is dangerous or sensitive for police work.
They can also order you to stop recording if you are interfering with them. But who determines the definition of interfering? This is where your rights to record police enter a dimension of uncertainty.
The Thin Blue Conundrum
The bottom line is that police have a difficult and dangerous job to do. Even routine encounters can escalate to sudden violence.
On one hand, police know they cannot interfere with your First Amendment rights, nor can they attempt to hide their activities from the public eye. On the other hand, they cannot allow smartphone-wielding bystanders to disrupt police activity. For instance, officers need to ensure crime scenes are secure so evidence is preserved. And they need to make sure active scenes are safe. They would not want negotiations with a shooter to fall through due to a bystander’s filming.
This is a real conundrum, and unfortunately, it’s one police officers can abuse. Citing safety concerns, police can restrict your video recording so much that you end up with very little usable footage.
Catchalls
If you disobey a police officer’s legitimate commands, you will likely be arrested. You could then be charged with obstruction of justice, disorderly conduct, or obstructing a police officer.
This is sometimes referred to as “catchalls.” The threat of arrest for “interfering” can intimidate people from trying to legitimately film police activity.
Talk to an Attorney if You Have Been Harassed While Filming Police
Your right to take photos and record videos of public law enforcement encounters is protected by the First Amendment. Seven of the nation’s high circuit courts have affirmed that right. If police have limited this right, Robinson & Henry has a strong team of criminal defense and litigation attorneys who are eager to hear your side of the story and hold the police accountable. Call 303-688-0944 to begin your case assessment.