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Smartphones and Civil Rights: Recording Video of Police Officers

Earlier this month, a California police officer was placed on leave after a video appeared on YouTube showing the officer pulling a gun on a man who was recording him on his cellphone. According to Don McComas, the man who took the video, the officer had been driving around his neighborhood when the officer stopped by Mr. McComas’ home and began pointing at him. Mr. McComas became concerned and began filming the officer. The video shows the officer drawing his weapon as Mr. McComas backs away and explains that he is filming the encounter to protect himself from the police. The officer did not detain or arrest Mr. McComas.

Filming Police Officers

With the increase of attention on police misconduct and violence against the communities they serve, there has been increased attention on holding police accountable. Some cities and states, such as Washington, D.C., have implemented programs for police officers to wear body cameras while on duty in order to monitor their behavior and hold them accountable for any violations of protocol.

In addition to the increase in the use of body cameras, in many places citizens have taken up the charge of holding police accountable by filming them during interactions. There are even a number of applications for smartphones that are aimed at facilitating the filming of police officers and protecting those who take the videos.

Citizens’ Rights

Along with the increase in citizens filming police officers, particularly with the increased availability of video cameras as a function of smartphones, there has been an increase in police officers trying to stop citizens from filming. Some officers even go so far as to arrest those who film the police. On St. Patrick’s Day in 2014, a Miami-Dade police officer was making an arrest when Lazaro Estrada noticed the arrest from inside a nearby building and began filming on his smartphone. The officer motioned for Mr. Estrada to back away, which he did – further into the building. In response to those interactions, and to Mr. Estrada’s filming of the arrest, the officer charged Mr. Estrada for obstruction of justice and resisting arrest without violence.

According to Florida law, all parties to a private wire, electronic, or oral recording are required to give consent for the recording to be legal. However, there is an exception for in person recordings when the participants have no reasonable expectation of privacy, such as when the participants are in public. Therefore, when police are in public, the public generally has a right to record their actions. An article by the Washington Post noted that every court to consider the issue of a citizen’s right to film police officers has found that police officers that are on-duty and in public spaces have no expectation of privacy, and that filming police officers in those situations is protected under the First Amendment.

It’s also important to be aware that, as with Mr. Estrada, police officers who charge those who film the police may claim that the filming interfered with an arrest or investigation and was an obstruction of justice under Florida law. Citizens should be mindful if they decide to record police, and do their best to make it clear – on video – that they could not be construed as interfering with the officer.

If you or a loved one is concerned that your rights may have been violated, it’s important to have an experienced attorney that can help you understand your protections under the law. Contact our Miami attorneys at The Baez Law Firm for a consultation today.

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