What to do if you're arrested while filming the police
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Last week, Baton Rouge police officers shot and killed Alton Sterling outside a convenience store, after responding to a reporrt of a man with a gun. On Monday, Abdullah Muhlafi, the owner of Triple S Mart, filed a lawsuit in Baton Rouge district court alleging that immediately after killing Sterling, Officer Blane Salamoni ordered two officers to confiscate the store’s security system, and illegally detained Muhlafi while confiscating his cellphone that included footage of the shooting.
Given the ongoing Black Lives Matter protests (and arrests of protestors) in cities like Baton Rouge, Rochester, Atlanta, and St. Paul, it’s important to know your rights when it comes to photographing or filming police activity, and what to do if you get arrested in the process.
Assert your rights
If a police officer asks you to stop filming them in a public place, they’re legally in the wrong. Via The Atlantic:
“As a basic principle, we can’t tell you to stop recording,” says Delroy Burton, chairman of D.C.’s metropolitan police union and a 21-year veteran on the force. “If you’re standing across the street videotaping, and I’m in a public place, carrying out my public functions, [then] I’m subject to recording, and there’s nothing legally the police officer can do to stop you from recording.”
In 2014, The Huffington Post spoke to Mickey Osterreicher, an attorney with the National Press Photographers Association, who clarified the rules for journalists and the public alike:
“There’s no law anywhere in the United States that prohibits people from recording the police on the street, in a park, or any other place where the public is generally allowed,” Osterreicher said.
A number of states do bar people from recording private conversations without consent. But as long as the recording is made “openly and not surreptitiously,” said Osterreicher, it’s fair game. According to Osterreicher, “assuming the position of holding up a camera or phone at arm’s length while looking at the viewing screen should be enough to put someone on notice that they are being photographed or recorded.”
Jay Stanley, a senior policy analyst at the American Civil Liberties Union, told The Atlantic that photography levels the playing field, and police officers don’t often like that, which leads to them trying to stop filming. This became such a problem that Stanley wrote a guide to photography and filming rights for the ACLU.
However, Burton continues, you don’t have the right to interfere with what the officer is doing, even if it’s illegal. “In general, a court will trust an officer’s judgment about what is “interfering” more than yours. So if an officer orders you to stand back, do so,” says the ACLU.
Public vs. private
Most times, if you’re on public property, “you have the right to capture any image that is in plain view. That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers,” the ACLU’s guide states.
However, you may be charged with disorderly conduct for blocking a thoroughfare while filming. This was likely the pretext used to arrest Black Lives Matter activist DeRay Mckesson over the weekend. According to the police, Mckesson, while in public, was illegally blocking the road.
Private property is more complicated, in that the owners set the rules and can rescind your access for whatever reason they want. The horrifying video of the protestors being advanced on shot over the weekend in Baton Rouge was taken on private property, where the owner had reportedly given access to the protestors, who were arrested anyway.
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