Is It Legal to Videotape a Police Officer?

In the aftermath of the Michael Brown shooting, questions have arisen as to whether it is legal to videotape a police officer without their consent. The answer to that question varies according to state law.

Missouri law makes it illegal to record an “in person” communication (as opposed to an electronic communication like email) if the person communicating has a “reasonable expectation of privacy.” The goal is to prevent surreptitious recording of private conversations. That expectation does not exist (or is not reasonable) in a crowd or riot setting. Therefore, a reporter or member of the public can record police officers without their consent, but needs to avoid recording any private conversation with the police (or anyone else). Obviously, if a member of the press and a camera operator approach a police officer privately, the officer will have a hard time arguing that they had a reasonable expectation of privacy. But, if a private person pulled a police officer aside for a private conversation, the result may be different. It will depend on the circumstances of the communications.

In other states, the law may be different. In some states, it is legal to record a conversation if only if both (or all) parties to the conversation consent. Under that law, it would not be legal to record a police officer without his or her permission. In other states, only one person to the communication need to consent, so you do not need the police officer's consent. Therefore, it is important to know the law before you record a police officer or anyone else without their consent.

As for police destroying cameras, that is destruction of property and constitutes a seizure if done by a police officer. Generally, a police officer needs a warrant for such activity. However, if there are exigent circumstances, an officer often does not need a warrant to seize the tools or fruit of a crime. That being said, destroying a camera is not the same as seizing it for use as evidence. Again, based on above, it does not appear that the video taping in Ferguson is illegal, so the cops should not be destroying cameras.

As for the right to protest, most states permit protesting in public areas where the protestors do not cause undue public disruption. Constructionally, a government is entitled to place reasonable restrictions on the right to protest that properly balance the rights of the protestors and the public good. A member of the press has no right to go beyond that limitation, but also cannot be prevented from being with the protestors in a designated area. In other words, the press does not have a right to go beyond where the public goes unless the law or police in that jurisdiction allow it, which they often do by making special accommodations for members of the press with credentials.

Finally, the lesson from all of this is to know the law before you record anyone without their consent; not only police officers, but anyone else. There can be severe penalties for violating these laws.