Civilians Can Record Police Encounters, But When Is It Interference?

Civilians Can Record Police Encounters, But When Is It Interference?

2:50pm Apr 10, 2015
Cellphones were used to record a 2012 confrontation between protesters and police in Springfield, Ill.
Cellphones were used to record a 2012 confrontation between protesters and police in Springfield, Ill.
Seth Perlman/AP

The arrest of South Carolina police Officer Michael Slager, who shot and killed Walter Scott in North Charleston this week, came shortly after the release of a cellphone video recorded by an eyewitness.

The filming of police by civilians has also sparked controversy, and it often causes confusion about what is legal.

For eyewitnesses of police activity, the law is crystal clear, according to Mark Graber, who teaches constitutional law at the University of Maryland: "You can film police on duty as long as you're not interfering with their activities."

"Interfering" is the key word when discussing the legality of recording encounters with the police.

"Precisely what constitutes 'interfering with police duties' is not entirely clear," Graber says. "This strikes me as an issue that within five years is likely to be a Supreme Court decision."

In the meantime, he says, the gray area includes determining how far away eyewitnesses should stand with their cameras so as to not get in the way of police.

"It gets murky when, in fact, people recording are so close to the police officer that they're distracting the police officer, or the police officer can't tell is that a camera or a weapon," says Graber. "Those are where things matter."

Police officers also face many fast-changing scenarios that can be hard for lawmakers to anticipate, says Chuck Canterbury, a retired police offer and the national president of the Fraternal Order of Police.

"You got to understand, most of the time the people that are videoing don't understand what's going on," he says. "They just happen upon it, and they just start videoing. And that's their constitutional right, but they cannot interfere."

Canterbury adds that laws that clearly define what is interference would be helpful to police.

There are five states — California, Colorado, Connecticut, New York and Texas — that are considering bills that might offer some clarity, according to Rich Williams, who tracks criminal justice policy for the National Conference of State Legislatures.

"The question that the bills are trying to answer is, 'What is the line between peacefully recording law enforcement activity and interfering with the police officer's ability to do his job effectively?' " Williams says.

Still, video of questionable police activity doesn't always lead to criminal charges, as it has in the South Carolina case, says Jay Stanley, a privacy expert with the American Civil Liberties Union.

"Video's not going to solve every problem with our criminal justice system," he says, "but I think it's opening a lot of people's eyes to just how much abuse takes place out there."

People have tended to put a premium on the testimony of police officers, he says, but eyewitness videos are now calling that credibility into question.

Copyright 2015 NPR. To see more, visit http://www.npr.org/.

Transcript

MELISSA BLOCK, HOST:

The arrest of the North Charleston police officer came shortly after the release of a cell phone video recorded by an eyewitness. Filming police by civilians has often caused confusion about what is legal and sparked controversy. NPR's Hansi Lo Wang has more.

HANSI LO WANG, BYLINE: For eyewitnesses of police activity, the law is crystal-clear according to constitutional law professor Mark Graber of the University of Maryland.

MARK GRABER: Yeah, I mean it might be one thing - you can't film, you know, the police shower, but you can film police on duty as long as you're not interfering with their activities.

WANG: Interfering - that's the key word here.

GRABER: Precisely what constitutes interfering with police duties is not entirely clear. This strikes me as an issue that within five years there's likely to be a Supreme Court decision.

WANG: In the meantime, Graber says the gray area includes determining how far eyewitnesses should stand with their cameras so they don't interrupt police.

GRABER: It gets murky when, in fact, people recording are so close to the police officer that they're distracting the police officer or the police officer can't tell - is that a camera or a weapon? Those are where things matter.

CHUCK CANTERBURY: You got to understand, most of the time, the people that are video don't understand what's going on. They just happened upon it, and they start videoing, and that's their constitutional right, but they cannot interfere.

WANG: Chuck Canterbury is a retired police officer and the national president of the Fraternal Order of Police.

CANTERBURY: The media is really good about not exposing juvenile or rape victims' identities, but YouTube doesn't have any standards, so there can be scenarios where taping could be dangerous.

WANG: Canterbury says police officers also face many fast-changing scenarios that can be hard for lawmakers to anticipate. Still, he says, laws that clearly define what is interference would be helpful to police. There are five states, including California, Colorado, Connecticut, New York and Texas, that are currently considering bills that might offer some clarity. That's according to Rich Williams of the National Conference of State Legislatures.

RICH WILLIAMS: The question that the bills are trying to answer is what is the line between peacefully recording law enforcement activity and interfering with the police officer's ability to do his job effectively.

WANG: Feidin Santana was on his way to work when he recorded the South Carolina video. He was standing behind a fence when he taped patrolman Michael Slager shooting Walter Scott as he described to NBC's "Today Show."

(SOUNDBITE OF TV SHOW, "TODAY SHOW")

FEIDIN SANTANA: It was an empty spot. There were just the three of us in that moment. I couldn't tell what was going to happen.

WANG: Video of questionable police activity doesn't always lead to criminal charges like they did in South Carolina says Jay Stanley, a privacy expert with the American Civil Liberties Union.

JAY STANLEY: Video is not going to solve every problem with our criminal justice system, but I think it's opening a lot of people's eyes to just how much abuse takes place out there.

WANG: He adds, people have tended to put a premium on the testimony of police officers. Now eyewitness videos are putting that credibility into question. Hansi Lo Wang, NPR News, New York. Transcript provided by NPR, Copyright NPR.

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