From the mailbag: Is it legal to videotape the police?

We got an email from a friend-of-the-blog yesterday asking about the legality of videotaping police officers, probably based on the case in Maryland where this video came from:

If you’ve got 3:37 to spare, watch the whole video – it’s a thrilling opportunity to get a first-person view of what great fun it must be to endanger the lives of countless motorists by driving 130mph on a wheelie-popped motorcycle, and the ending, where an un-uniformed police officer in an unmarked car forces him off the road and then pulls a gun on him, before he spends 26 hours in jail, offers a stellar climax. That’s why the video’s so big. It’s like Imax.

To be certain, it’s really difficult to have any sympathy for the motorcyclist in the video. Guy was driving like a crazy person with no regard for the safety of anyone else on the road, and if he gets a scare and a day in jail out of it, you know, I’m more or less on Team Cop here.

Except that’s not what he spent 26 hours in jail for. He spent 26 hours in jail for videotaping the incident, under a weird interpretation of privacy laws that insist that he was illegally recording without the officer’s permission.

Maryland isn’t the only state where privacy laws are currently interpreted to include “public places with no expectation of privacy” when it comes to videotaping. (Or, at least, videotaping the police.) Massachusetts and Illinois share that interpretation, and there are 12 states with an “all-party consent” law regarding videotape, although that doesn’t include public places for the nine sane ones. (Bear in mind that, according to my layman’s interpretation*, that’d also outlaw surveillance cameras.) Gizmodo has a more complete run-down here.

Texas isn’t on that list, so to answer the question – should be in the clear here, I think. But what’s more interesting to me than if you can film a police officer is whether it’ll make a difference.

Via Scott Greenfield, we get the update on this video:

The officer in this video, seen shoving a cyclist off his bike during a New York City Critical Mass ride, was prosecuted, but not for assault or excessive force or anything – it’s more or less explicitly legal for a police officer to smack around a cyclist at his own discretion, especially if it’s part of a controversial (though totally legal) event like CM. If you start telling cops that they can’t beat up annoying cyclists without provocation or justification, then they’ll presumably stop feeling like they can attack other people who bother them, the logic goes, and then it’s just a short ride (not on a bike, though!) to anarchy.

No, the cop in the video was prosecuted for filing a false instrument. After laying into the cyclist, he proceeded to arrest him and write a report that explained that the kid on the bike had attacked him. Assaulting an officer! Bam! And the kid stared down a serious charge, of which he would have almost certainly been convicted (who you gonna believe, anarchist cyclist or brave policeman?), until the video surfaced. Now it was the cop’s turn to be prosecuted, since the charging instrument was proven to be the product of the officer’s fertile imagination.

And then, lo, this week – he was convicted! The system works, right? Officer attacks a cyclist, files a report claiming that it was the kid who attacked him. Kid is arrested. Video surfaces, truth comes out. Cop is arrested and prosecuted. Jury reviews the evidence, votes to convict. We can all breathe easy in our knowledge that our justice system corrects itself when these things get out of hand (provided someone has a cell phone camera around and turns in the recording, in a state where he’s not violating the officer’s privacy rights by doing so).


A former police officer convicted of lying about an encounter he had in Times Square that sent a bicyclist tumbling to the pavement will not receive any further punishment for his crime, a judge in Manhattan ruled on Wednesday.

The officer was given what’s called a conditional discharge, meaning he will receive no jail time, probation, or community service. He won’t have to take “how not to shove a cyclist off his bike when you’re in a bad mood” classes. He won’t be required to apologize for knocking the kid off his bike and then lying and saying that the kid attacked him. He was convicted, but will suffer no consequences.

So, yeah – in the states that aren’t Illinois, Massachusetts, or Maryland, you can videotape a police officer abusing his authority or attacking citizens without worrying that you’ll go to jail.

But the odds are the cop won’t, either.

*This post authored by Dan, a non-attorney who works in the office.

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