Ask An Attorney: Is It Illegal To Record A Cop With Your Smartphone?

12 August 2015
 Categories: Law, Articles


The American media commonly highlights incidents of alleged police brutality or misconduct using footage from a smartphone. These devices have made it easy to capture footage of almost any event, but some police officers may not take kindly to this type of activity. Find out if it's illegal to film a cop, and learn more about the steps you may need to take if a police officer wants to confiscate your recording equipment.

What the law says

It is perfectly legal to film a police officer provided that he or she is in a public place and you don't interfere with the cop's ability to do his or her job. Indeed, most lawyers argue that Americans have a constitutional right to film the police, but that doesn't mean that all state laws necessarily line up.

According to the Reason Foundation (a non-profit educational organization), state laws across the United States are not entirely consistent.

  • 38 state laws clearly allow citizens to film police officers
  • 12 state laws require the consent of both parties to record or film a conversation – including police officers

That aside, 10 states have a legal 'expectation of privacy provision' that courts have ruled does not apply to on-duty police. Technically, this only leaves two states with laws that could stop you filming a police officer, although these laws are often subject to legal challenge.

So why do so many people get into trouble for recording the police?

The scale of the issue

Camera footage plays an increasingly important role in criminal cases. Whether the footage comes from a dash-mounted camera, a smartphone or a regular digital recorder, the footage that people obtain this way can often exonerate or condemn somebody.

Pressure groups across America continue to share details of incidents that involve police brutality or misconduct. Research in 2014 showed that police officers killed 1,149 people in the United States in that year alone. As such, it's unsurprising that many people now capture footage of questionable police conduct on camera.

Using your smartphone legally

Whatever the law says in your state, police officers won't always respond well if you film them, so it's important that you use a recording device correctly. For example, the law only allows filming in a public place, so you cannot try to film a cop in his or her home, or (technically) on somebody else's property.

What's more, your conduct cannot interfere with what the police officer is trying to do. This rule isn't always easy to interpret. For example, if a police officer is attempting to arrest a suspect, he or she could argue that just knowing that you are filming from the other side of the street is an unwanted distraction. As such, it's important to stay out of the officer's way, so he or she can deal with any suspect. Don't heckle or shout at the officer or become involved in the incident in any way. 

Responding to the police while filming

If a police officer asks you to stop filming you should:

  • Remain polite and co-operative
  • Not physically resist the officer
  • Remind the officer that it is your right under the First Amendment to record footage in this way

You can ask if you are free to leave at any time. An officer cannot legally detain you if he does not have reason to believe you are committing a crime. If the officer detains you, ask why the officer is detaining you, further reminding him or her about your First Amendment rights.

Crucially, it is important to carefully consider each situation on its merits. A belligerent police officer may not respond well to any resistance, and you should never take risks. For example, if an officer tries to confiscate your equipment, it's generally unwise to resist. Instead, you should immediately contact an attorney for help. Above all, you should never take chances and provoke a police officer who is often dealing with a high-pressure situation.

American citizens have a constitutional right to film police officers in public places, but on-duty cops don't always agree. If a police officer stops you filming and/or confiscates your equipment, contact a criminal defense attorney for help.