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Court Rulings Undermining Right to Record Police

  • Birdsall Obear

The George Floyd case stunned the country, led to nationwide protests and resulted in the rare conviction of a police officer. Had the fatal arrest not been recorded, there is a small chance that the case outcome would have been the same. The video evidence allowed the country to view the situation with their own eyes, as an alternative to listening to a police officer’s account. In cases where video evidence is not present, police officers are typically not convicted. 

The First Amendment guarantees us the right to record police activity, as long as it is in a public place. A majority of judges have supported this right. However, two recent outlier decisions may indicate that this right is being undermined.

What are the Recent Cases?

There are two recent relevant cases:

  1. In March, the Tenth Circuit ruled that qualified immunity protects police officers who searched an individual’s tablet for video evidence of them carrying out an arrest. They searched his tablet without a warrant. Police need a warrant to search your tablet, phone, or camera, even if you are under arrest.
  2. In May, Florida's Fourth District Court of Appeal ruled that Boynton Beach police were justified arresting a mother for recording her son's arrest. The court ruled that the mother “obstructed their investigation.”

One or both of these cases may end up before the Supreme Court. 

While the cases don't completely eradicate the right to record police, they introduce confusion on both sides. People may be unsure if they can record the police. This could lead to an unwillingness to do so. Additionally, police may feel they have a better chance of getting away with violating individual’s rights. The Supreme Court has yet to explicitly rule on this.

As of right now, the standing case law is that you do have the right to record the police. If you have been arrested or retaliated against for recording the police, we can help. Contact Birdsall Obear & Associates LLC. We are proud to be known as the best criminal defense firm in Wisconsin

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