Video Vigilantes

January 3, 2012

There is a growing trend of video vigilantes exposing illegal activities by police officers.  Some of these videographers go out and look for cops doing something illegal - such as parking or driving violations  - and document them.  Others tempt police officer to break the law and video the results.  Still others simply turn the video cameras on when they are stopped or approached by the police.  I want to differentiate here between actively videotaping police in public, and using police videos to defend yourself against criminal charges.   Police often videotape themselves in performance of their duty.  That is not the type of video we are talking about here.  We are discussing citizens videotaping officers in the performance of their duties.  


The videotaped beating of Rodney King by police created an awareness in citizens across the nation that video cameras are a powerful tool for combating wrongs done by authorities with badges.  With smaller and less costly cameras coming on the market nearly every day, almost anyone can afford to become a video vigilante.  Heck, anyone with a cellphone can at least audio record at any given time.  


As expected, authorities are pushing back against being videotaped both officially and unofficially.  At least two states have criminalized videotaping police officers in the performance of their duties.  In other cases, police officers have apparently retaliated by writing tickets , harassing, and arresting videographers for other offenses .  


Occasionally, these incidents show professionalism and the human side of law enforcement.  In this video from New Jersey a patrol officer approached a citizen he had earlier yelled at and seemingly genuinely apologized for his behavior and explained why he was so frustrated.  I finished that video with more respect for the officer than I have for most of the other videos I’ve seen.  After all, cops are humans and are entitled to a mistake or two - especially when they acknowledge and apologize for it.  


Still other videos create public conversation on the proper lines to be drawn with police encounters.  This video has spurred a debate over when it is appropriate to use a Taser.   Still others show apparent excessive use of force.   And, this one shows a need for more, or perhaps, better training when it comes to the constitutional limits of their power - not to mention better screening of police applicants (WARNING:  SEVERE LANGUAGE)    


Regardless of your purpose for filming the police, there are some things that you should be aware of before becoming a video vigilante.  First, under U.S. Supreme Court precedent, anyone can record anything that happens in public.  There are some laws that seemingly limit this Constitutional right in at least two states, but those laws have not been challenged to the country’s highest court at the time of this writing.  Still, if you are secretly filming you face the possibility of being arrested and charged with a felony.  It’s important that you know the law in your state.  Texas allows filming police in public.  


Secondly, you should make sure you know your rights before taking an officer to task over whether you will produce your identification.  The law is very fact dependent, and if you’re wrong then your ignorance will not excuse your violation of the law.  


Third, don’t provoke police just to film their reaction.  This is not only stupid, it’s dangerous.  Be respectful and keep in control of your words, emotions, voice and body language.  It doesn’t take much for police to say they felt threatened by you, and anything that they perceive as a threat will be justification in their mind to take action against you physically.  If you get permanently injured, or facing a ton of criminal charges, it doesn’t matter how technically right you were under the law - you’re still out time and money.  


Fourth, remember that the police do not have the right to search through your phone or recording equipment without either a warrant or your consent.  If an officer says, “Let me see that,” and motions to your video camera he may be asking for your consent, or may be giving you a command.  If you don’t know, ask him.  “Is that a request or a command?” is a question that should be answered by the officer before you give him anything.  You are generally required to follow police orders, but not required to comply with their requests.  


Fifth, and finally, make sure that you save any footage you take both on the original device that recorded it, and a backup copy.  Only provide a backup copy to anyone who you give a copy to until you have clear instructions from an attorney as to how to proceed.  There are some legal requirements as to the validity of original footage, and if that original is accidentally lost, you may lose legal defenses and claims.