HomeMy WebLinkAboutConstitutional Policing Update- Right to RecorFirst Amendment and the Right to Record
A citizen has a First Amendment right to video record police performing their duty in a public place, provided they are
not otherwise interfering with the police officer’s performance of their duties or committing some clear violation of law
unrelated to the videotaping.
When someone is exercising constitutionally protected First Amendment activity- to assemble, to record, express
viewpoints, etc.- it can be an emotionally charged situation for those involved. They also may try to incite a deputy or
professional staff employee in an attempt to establish or prove a point. Do not allow that to happen to you! Their words
may be insulting or biting, but they are meant for the sole purpose of obtaining and documenting a reaction from you.
On its face, this may sound unfair; citizens can say hurtful and rude comments while you are expected just to sit back
and listen? To an extent, it is a double standard. As a department member, you are part of a government entity, you are
a professional, and you cannot interfere with someone who is lawfully exercising their constitutional rights. However, if
the person’s actions are not lawful, then you should take action. Your decision to act must be based only on the
lawfulness of their conduct and not the viewpoints that the individuals are expressing.
If you are a deputy assigned to a call for service involving an individual recording in public, ensure they do not need
assistance, that they are safe- i.e., not at risk of running into traffic, and ensure that they are not blocking others from
entering county property to conduct their business. Once you have assessed the situation, respectfully remove yourself.
Remember, deputies must enforce the laws regardless of the viewpoint expressed. Speech cannot be restricted based
solely on the message of the speaker. The attached chart will assist you in determining whether the conduct you
observe is constitutionally protected First Amendment activity.
Scenarios
A person decides to come to the area between HQ and CJX and video record the people outside the
buildings and surrounding outside areas. A deputy walks by, and the person begins to be rude and
insulting. Can the deputy stop the person from recording or speaking their mind? No. The person is
outside in a “public forum” that is a place open for a free exchange of ideas. There have been
protests held in these areas, and it is not restricted or prohibited by any law or ordinance.
Now, what if they were blocking the entry into the jail and not allowing members of the public to
have access to the government building? That interference is not allowed under the law. You can
attempt to obtain voluntary compliance, and if they do not respond, your subsequent action will
not interfere with their First Amendment rights.
If the person is standing outside a sub-station and recording the people coming and going, that is
protected activity under the First Amendment. But if they record inside the station lobby (either
while standing outside the building or from inside the building) that is not constitutionally
protected because the lobby of a police station is not a “public forum.” It is open to members of
the public for purposes of those persons conducting business at the police station. It is not a place
open for a free exchange of ideas. By contrast, the inside of a public library would be a public
forum. Recording inside a library would be legally allowed.
Issue: 19-1
Is the person
standing outside a
county building?
i.e., HQ, SSA,
Probation, CJX,
Theo Lacy)
Yes
No
Yes
Is the person
recording areas that
are open to public
view, including the
entrance, but not
into the building or
restricted areas?
This is
constitutionally
protected
1st Amendment
Activity
Recording is legal)
Check if there is a
specific PC 602 section
that applies, direct
person to trespass
signage & provide
opportunity for
voluntary compliance.
Then cite/arrest as
applicable.
Is the person
recording the
inside of a
building from the
outside of the
door?
No
Confirm the person
in charge of the
property wants
them to leave.
Direct the person
to trespass signage
provide
opportunity for
voluntary
compliance. Then
cite/arrest as
applicable.
Yes
Yes
The person may be
asked to leave
BUT FIRST
Is the inside of the
building a public
forum?
i.e., a library, or a
place intended for a
free exchange
of ideas)
Yes
Is the inside of the
building a non-
public forum?
i.e., Jail, Station
Lobby, Courthouse)
This is
constitutionally
protected
1st Amendment
Activity
Recording is legal)