By Matt Simonsen*
We recently learned about this video, filmed by an individual claiming his rights were violated. Despite being a DUI checkpoint, the officer apparently did not ask the individual if he had been drinking, or any related questions. Upon finding the camera, the officer turned the camera around so he could not be seen. In another video, an officer attempts to charge an individual with obstruction of justice for filming the interaction.
Legally, can you film a police officer? It depends. Certain states, such as Illinois, have adopted laws which prohibit the recording of a police officer in a public place without consent. Texas, however, is a one party consent state, which requires only one party to record a communication (see Tex. Penal Code § 16.02 & Tex. Code Crim. Pro. § 18.20). Although Texas does not require the officer’s consent, an officer may attempt to charge you with obstruction of justice or interference with public duties, even though the charges may not hold up in court.
In recent years, some courts have approved filming police. In Smith v. City of Cumming, the 11th Circuit Court of Appeals held that an individual has the right to film police conduct, under the First Amendment. In Bowens v. Superintendent, the 11th Circuit Court of Appeals, in dicta, referenced the right to film police conduct and referenced Smith v. City of Cumming.In Glik v. City of Boston, the First Circuit Court of Appeals held that an individual cannot be arrested for filming police, under the Fourth Amendment.
While you may have the constitutional right to film, there are situations where you do not. Your filming should not interfere with an investigation, and remember that you and your camera may be subpoenaed if the courts believe it contains evidence necessary to a trial. Under Texas law, you do not have the right to record if you are doing so to commit a criminal or tortious act (i.e. stalking). If you are going to film a police encounter, our office advises doing so respectfully at all times.
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