When can a US police officer stop me from recording our encounter?

Question

During any encounter with a US police officer, under what circumstances would the officer have the right to force me to stop recording our encounter with my smart phone, and can he prevent me from retrieving my phone if I don't have it out already when the encounter begins?

I know that it's legal to record my encounter with an officer in the US, I'm just curious about what excuse the officer could use if he wanted to force me to turn off the phone, and what situations he would legally be able to force me to stop recording.

If I believe the officer may wish to violate my rights, do I have any legal ground to refuse to stop recording? Is there any particular way I can record in order to make it safe for the officer and still effective, so that I cannot be forced to stop recording?

Perhaps a wearable camera would allow citizens worried about protecting their rights during police encounters to ensure their recording can't be legally stopped by an officer, even if the officer knows of that particular wearable device and doesn't want to be recorded?

Answer 1

According to the ACLU, in the U.S.:

Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes police and other government officials carrying out their duties.

I.e., a law enforcement officer can never lawfully demand that you turn off a recording device.

However the ACLU itself acknowledges that this right continues to be broadly infringed by government agencies and agents. The ACLU and other watchdog groups try to document and fight infringements of this right.

Infringement is still so widespread that, in practice, there are many areas and circumstances in which you could expect to be detained, harassed, arrested, and even charged with various crimes for recording police, or for refusing police demands to stop recording. (The charges will not be for recording police, since that is not a crime, but will typically be "contempt of cop" type charges like obstruction, failure to obey, assault, resisting arrest, etc.)

Answer 2

The “filming or videotaping of government officials engaged in their duties in a public place, including police officers performing their responsibilities, is protected by First Amendment.” Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) See also, Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (“The First Amendment protects the right to gather information about what public officials do on public property,” including right “to photograph or videotape police conduct”); Robinson v. Fetterman, 378 F.Supp.2d 534, 542 (E.D.Pa.2005) (finding First Amendment right to videotape state troopers on public highway performing truck inspections).

One good demonstration of the right to video police is seen here where an out of state cop brought a gun into a San Diego court room. The Nevada cop, Leesa Fazal, Las Vegas, was told to not exit the San Diego Court.

Answer 3

The obvious case when a police officer can ask you to stop doing something is for his own protection.

We had the recent case where a police office arrested a women after she refused to put out a cigarette during a stop (where the office was going to give a warning and the woman died in custody). The cigarette could be used as a weapon.

If you were holding a cell phone in such a manner that you could hit the officer with it, it would be reasonable for him to ask you to stop.

In general, he could not ask you to stop filming just to stop filming. However, he can do much in regard self protection.

Answer 4

In practice, anytime they want to.

They may have to claim that your recording was interfering with something they or other emergency responders were doing, that you disobeyed a direct order to stop, that they interpreted your recording as being aggressive against them in some way, that they thought your recording device might be a gun, or that you were watching something illegal, etc.; especially the latter few would give them grounds to shoot you dead.

If the action the officer took to stop you from recording were ever tested in court, the court would very likely believe whatever the police say. They’d probably do their best to portray you in the worst light possible, even if that means making you a criminal suspect and/or ensuring that you have an arrest record by the time that hearing comes up. If it’s an encounter between you and the officer, they’ll make allegations about why they engaged you in that encounter, and they will likely be believed.

However, if a police officer stops you from recording, that is by itself unlikely to reach a court unless they also prosecute you for the recording alone, which is very unlikely to happen. If they prosecute you for anything, they’d likely prosecute on some other basis (e.g. disobeying an order, resisting arrest, etc.). It’s not like you can get a court to resolve the question in the moment of any recording, and if you try to take action through the legal system after the fact, (a) it’s clearly interfering with the police work and (b) it’s not going to help you be able to continue recording whatever it is you wanted to record in the first place.

In some states, the mere presence of a camera with a field of view covering a nonpublic area where a person might legally be physically present, can be considered an Assault against that person, and you could be prosecuted for that (& even if you win, it could be quite expensive to defend such a claim).

See https://www.youtube.com/watch?v=tLnhSl1ajyc for an example of how the law works in practice. (That video is no longer avaialble due to a copyright claim.)