Yes, You Can Record Police Officers During The Course of Their Official Duty

One of the most common questions that seems to arise in the realm of constitutional rights involves whether an individual has the right to record encounters with police officers.  The short answer is: Yes.

Pennsylvania’s Wiretap Act makes it a third degree felony to “intentionally intercept[] . . . any . . . oral communication.”  18 Pa.C.S.A. s. 5703(1).  However, an “oral communication” is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”  18 Pa.C.SA. s. 5702.  Thus, if an individual has no expectation that his statements will not be “subject to interception,” then the statement is not an “oral communication” for purposes of the Wiretap Act.

Two federal courts governing Pennsylvania have concluded that police officers do not have an expectation that their statements will not be intercepted.  First, in Robinson v. Fetterman, the Eastern District of Pennsylvania found that the First Amendment guarantees the rights of individuals to record police officers in the course of their public duties.  378 F.Supp.2d 534, 541 (E.D.Pa. 2005).  In so holding, the Court noted that the “activities of the police, like those of other public officials, are subject to public scrutiny.”  Id.  While some courts have held that the First Amendment right exists for expressive purposes, the Eastern District found that the plaintiff “need not assert any particular reason for videotaping the troopers.”  Id.

Five years later, in Kelly v. Borough of Carlisle, the federal Third Circuit (the appeals court that governs Pennsylvania), found that there was, indeed, a First Amendment right to record the police during their official duties.  622 F.3d 248 (3d Cir. 2010).  The Third Circuit opinion revolved primarily around the issue of qualified immunity (which would immunize the police officers from liability if the law was not clearly established at the time of the violation).  Thus, the holding is not quite as explicit as the Eastern District’s in Robinson, but is present nonetheless.

In short, you may record the activities of the police, so long as your recording does not interfere with their official duties.  For example, you can’t cross into a marked crime scene, or resist arrest for the purpose of continuing the recording, but you can record from a distance that is not going to interfere.

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3 Comments

Filed under Constitutional Law

3 responses to “Yes, You Can Record Police Officers During The Course of Their Official Duty

  1. As in, from inside your car during traffic stop?

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  2. Pingback: Police Recordings and the Right to Know Law | Prince Law Offices, P.C.

  3. Centre County Public Enemy #1

    What’s the difference between the roadside, the public square of the seat of the county, and the public lobby of their offices? They are performing their official and public duties in all of those places. The courts have already ruled that what can be heard through walls of a duplex are recordable. If members of the public and employees all have cellphones at the ready, or are using Hey Siri functionality, or are talking on their phones, how can ANYONE maintain a reasonable expectation of non-interception? Therefore, in the case of these officials, it really comes down only to where law provides the reasonable expectation, such as in the courtroom where a Court of Common Pleas judge presides over a hearing, assuming that such a rule is constitutional. I’ve never heard so many people so ardently protest being recorded as law enforcement officers and public officials. The Act isn’t really there to protect them in their open and notorious activities, but they sure act as if it is god’s gift to them. And then there’s the courts that are saying publishing is protected but they’re not so sure about a right to collection… but if it is simultaneously collected and published, e.g. livestreamed, it may well be protected as being instantaneously published. Well, LEOs don’t like being livestreamed either, and they will retaliate.
    I’ve encountered a police officer who said he didn’t consent to be recorded… all while he (and I) was being recorded by ‘a member of the media’ just yards away and that was no problem even though our conversation was being recorded. I said, ‘you’re harassing me about it, are you going to go over there and harass him?’ ‘No, he’s a member of the /press/’. In Pa. there isn’t such a thing. Any man may think, speak and print on any subject, being liable for the abuse of the liberty.

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