Know What You Can Record Legally and What is Illegal to Record
Police misconduct and violence toward civilians have come into the spotlight in the past few years, and more people are aware of this problem. Much of this awareness is due to cell phones, and a majority of the population has the means to record police encounters and behavior, while social media ensures it will be spread quickly.
However, can you legally record police, or is using your phone during a traffic stop (such as a DWI checkpoint) or other interaction illegal? Can law enforcement officers stop you from recording encounters? Our criminal defense lawyers in Raleigh are sharing what you need to know to protect your rights and hold police accountable for their conduct.
What is Allowed When Filming Activity
In North Carolina, you are legally allowed to film anything in a public space in which there is no expectation of privacy. As a general rule, filming in public areas where there is no reasonable expectation of privacy is usually legal.
Public Spaces
Public spaces would include filming on sidewalks, in parks, and even at police stations or municipal buildings, as well as retail and commercial properties. The only exceptions are changing rooms, restrooms, and similar private areas where people may be changing or in a state of undress. There are specific rules regarding recording police officers and certain types of events.
Private Property
Filming on private property, such as in a store, restaurant, or someone’s home, generally requires the owner’s or occupant’s permission. Businesses can set their policies regarding filming on their premises, and unauthorized filming can be prohibited.
Is it a Crime to Record Police Interactions in North Carolina?
NO: it is not a statutory crime to record the actions of the police. This means that simply because one is recording the police, it is not an offense for which they may be arrested.
There are rules for recording spoken communication under the North Carolina Electronic Surveillance Act, specifically found in General Statutes 15A-286 et seq. This statute regulates the interception and disclosure of wire, oral, and electronic communications. The law allows for recording conversations if at least one party involved in the communication consents to the recording (called one-party consent). Consent is the key to avoiding legal issues.
What is a Violation of First and Fourth Amendment Rights?
There have been numerous cases across the United States of police officers attempting to detain or arrest someone recording or confiscating their phones. However, this is a violation of the First Amendment as a condition of free speech, as seen in 2011 in the case of Glik v. Cunniffe. The First Circuit Court of Appeals ruled that recording police interactions in public spaces is a “clearly established right” for citizens and is protected by the First Amendment. Several similar cases have gone before the Seventh, Ninth, and Eleventh Circuit Courts, which all rule that recording police is a First Amendment right.
Additionally, when a law enforcement officer attempts to detain someone or take their phone or camera, this is a violation of the Fourth Amendment, as this is a violation of an individual’s freedom from unlawful seizure.
What to Do When Recording Police Officers
If you are pulled over or stopped by police officers, or you see someone else is stopped and choose to record the encounter, follow these guidelines to protect your rights and stay within the law:
- Ask for the name of the officer or their badge number.
- Do not interfere with an investigation or interaction.
- Move back or step back when told to do so.
- Be polite, calm, and respectful at all times.
- Do not physically resist an officer.
- You do not have to stop recording.
The Fourth Amendment protects you against unreasonable search and seizure. Therefore, the police need a warrant to take or search your phone. If you are detained solely for filming another encounter, ask why you are detained and what crime you are suspected of committing.
Eavesdropping Laws and One-Party Consent
In North Carolina, eavesdropping is the act of secretly listening to or recording someone’s private conversations without their knowledge or consent. Eavesdropping can apply to a situation where you see an interaction occurring, and you begin to record it. For this to be done legally, it generally requires “one-party consent” for recording conversations. This means that, if you are a party to a conversation, you can legally record it without the consent of the other party(ies). However, secret recordings where the person doing the recording is not a party to the conversation and has not gained consent from one other person in the recording are generally illegal.
For example, if you are stopped by the police and you press record on your phone, whether the police officer is aware or not, you are within your rights to record and share this video. On the other hand, if you record a police officer stopping someone else, you need to make it clear you are recording or ask the other person if you may record.
If you are unsure about the legality of recording a conversation, it’s best to consult with an attorney.
If You’ve Been Charged, Schedule a Free Consulation with Our Attorneys
While police officers put their lives on the line to serve and protect our cities and neighborhoods, misconduct and violence are not acceptable. If you choose to film a police encounter, this is your legal right to do so, and if you’ve been detained or arrested, we can help. Reach out to our criminal defense lawyers in Raleigh today for a free consultation at (919) 845-6688 or fill out our contact form to get started.