When you are in public, it’s a common sight for people to have their smartphones out to take selfies, photos of their surroundings, or videos. However, what if you witness or are involved in an encounter with the police? This can be an understandably confusing situation for many people.
On one hand, you may realize that taking video of public spaces - including government buildings - is your constitutional right. However, many law enforcement officers order people to stop recording, and they may even threaten to arrest you. It is important to remember the following in this situation.
In Public Places or Private Property
If you are lawfully on public property, you have the right to record everything that is in plain sight. This includes government buildings and officials, as this is a way for the public to help oversee the actions of our government actors. On private property, the owner of the property can decide when you can take photos or videos. Continuing to record after the owner orders you to stop could be trespassing.
What the Police Can and Can’t Do
Police officers often believe they are above the law, and they may try to overstep their bounds and make orders or engage in conduct that is unlawful. The following is a brief list of what an officer can and can’t do in a situation involving recording:
- The officer CAN’T demand that you stop recording in a public place or on private property if you have permission from the owner
- The officer CAN’T demand to see your recordings or confiscate your phone without a search warrant
- The officer CAN’T ever delete recordings or photos from your phone
- The officer CAN order you to stop doing something if it might legitimately interfere with lawful law enforcement operations
There is a possible exception when it comes to video recordings with audio. While you can always record an interaction between yourself and an officer (in Texas, one party must consent to audio recordings - in this case, you are consenting), you might not be allowed to record an interaction between an officer and a third person IF the officer has a reasonable expectation of privacy in the situation. This is a rare situation, as officers usually do not have such an expectation of privacy in the course of their jobs.
What to Do if the Police Detain You for Recording Them
Even though you might be lawfully recording the police, there is always the chance an officer will wrongfully detain you for doing so. You should always stay calm in this situation - if you overreact, you could face additional problems. Be polite and do not engage in any type of physical resistance. Instead, calmly ask whether you are free to go. If the officer says no, this constitutes a detention, which is illegal unless the officer has reasonable suspicion of criminal activity.
You can politely remind the officer that you have the First Amendment right to take recordings and ask what crime the officer suspects. If you still end up arrested or the officer does anything unlawful with your phone, you should contact an Austin criminal defense lawyer immediately.
Speak with Our Austin Criminal Defense Lawyers
Granger and Mueller PC represents clients in criminal cases in Travis County, Texas. Call 512-474-9999 or contact us online to learn how we can help.