Yes, It Is Legal to Record the Police

A police officer is a convicted murderer in America today because a teenager recorded that police officer murdering a man in broad daylight and shared the video with the world.

Derek Chauvin, imbued with the authority of the city of Minneapolis, murdered George Floyd on May 25, 2020, a jury of his peers found on Tuesday. Charged with three counts—second-degree unintentional murder, third-degree murder, and second-degree manslaughter—Chauvin is guilty of them all. The key to his conviction: A video, nine minutes long, horrific, and true.

Had that teenager not recorded that video, the world would likely not know George Floyd’s name, Chauvin would still be a police officer, and a swath of white America would still be able to believe that police violence is not a problem. People would, instead, have relied on the lies the Minnesota Police Department told about Floyd’s murder—that he died because he “physically resisted officers” and, once in handcuffs, “appeared to be suffering medical distress.” That those officers then, simply, “called for an ambulance,” which transported him to a hospital “where he died a short time later.”

We know now—because of that video and other surveillance footage—the abhorrent disconnect between that initial statement and reality: Chauvin pinned Floyd to the ground with a knee on his neck; two other officers, J. Alexander Keung and Thomas Lane, held him down by the legs as Floyd pleaded, “Please, I can’t breathe”; a fourth officer, Tou Thao, was more focused on controlling the “hostile” crowd than on his partner killing a man. All this, even as a member of that crowd begged with the men to remember, “He is human, bro.”

The movement for Black lives, the protests against police violence, and Chauvin’s conviction renew the hope that your phone’s camera can bolster the potential for consequences when officers injure, kill, and violate the rights of people they have ostensibly sworn to protect. Of course, doing so carries its own dire risks—especially if you are Black or brown or Asian or anything but white in the eyes of the cops—and, as this country should know all too well, taking those risks often leads to more injustice.

The United States Department of Justice, six federal courts, and a wealth of First Amendment case law assert that it is your constitutional right to film police officers while they’re on the clock. And you should film the police whenever it is possible to do so, if you can take the risk.

The trick is that police have wide discretion to interpret your actions—your very presence—how they see fit. Because of this, it is important to know how to act to minimize the risk of exercising your rights. The Electronic Frontier Foundation has a concise guide for what to do and what not to do when filming the police. Importantly, this includes not “interfering” with police officers by standing “at a safe distance from the scene you are recording,” understanding that police may ask you to move for “public safety reasons” but not “because you are filming,” and that they cannot search your phone without a warrant from a judge.

Police can and do get away with violating civil rights under the auspices of doing their jobs. They will use their state-backed power to fool you into stopping the tape, or to confiscate it from you, or to put you in handcuffs, or to arrest you and ruin your life. Ramsey Orta, whom police reportedly harassed, targeted, and arrested after he filmed then-NYPD Officer Daniel Pantaleo choke Eric Garner to death, knows this because it happened to him.

Even if the police don’t target you for attempting to hold them accountable, recording the cops can lead to other pitfalls, even in the best of cases. As the teenager who recorded the video of Floyd’s final, horrible moments surely knows, capturing police officers behaving illegally means your name may be thrust into the public eye, upending your life in unfathomable ways, exposing you and your loved ones to greater threats and harassment. (It is for this reason that we are excluding their name here, despite it being known the world over.) It can lead to nightmares that you did not do more.

Most importantly, there is the tragic reality that recording police wrongdoing rarely leads to justice of any type. Eric Garner’s family knows this, as do the families of countless other Black and brown people who died at the hands of police who faced little or no consequences for their violence.

Quite simply, recording the police is dangerous and more often than not leads to either further injustices or no justice at all. But it is one of the few options Americans have to counter a deadly imbalance of power between citizens and agents of the state. Not even police body cameras—which multiple studies have shown are poor tools for holding police accountable—are a fully adequate alternative. The laws regarding the release of body camera footage differ across the country, meaning the release of footage is often at the discretion of authorities, and they can be used to instill empathy for police officers in ways that muddy the perception of right and wrong and further entrench the racism at the center of American policing. The families of Daunte Wright and Adam Toledo know this now, too.

Of course, it is easy for me to say we should all be out there, recording the police at every opportunity. I am white, male, cis, straight, well employed, and in good health. The unearned power inherent to each of those traits—whether or not I am aware of these privileges at all times—makes me unqualified to give general advice. My experience is and will be different from others’ in complex and unfair ways—the core of America’s cruel inequity.

It is precisely because of this inequity that it is my responsibility, and the responsibility of anyone who can take the risk, to turn the cameras on the police whenever possible, to give the world a perspective other than that of the police. It is a constitutional right to do so.

Chauvin’s conviction alone is not justice. It is an aberration in a system that criminalizes and subjugates and terrorizes marginalized people, and Black people most of all. And it is this system that needs greater exposure for what it is so that we may have a chance to replace it with something less horrific. Pressing record is an imperfect and fraught way to illuminate that system and the people who reinforce it.