It seems so easy: you see police officers putting someone through Cincinnati DUI psychomotor testson the side of the road or breaking up a fight at the local bar. So you whip out your iPod or Smart phone and start taking a video of the action with plans to post it on YouTube that night. You are not a part of the police officers’ focus and you are standing a good distance away. Do you have a First Amendment right to do this or can you be arrested for it?

The answer depends on a number of things – where you live, how the police view your actions, and more importantly, how the law on videotaping develops in the courts. What is important in these cases is whether or not the photographer truly stays on the sidelines without interfering with the actions of the police. If the photographer injects himself into the situation taking place, whether by standing too close or by heckling or harassing the police, he risks being arrested on charges such as obstructing justice or disorderly conduct.

In many states, police have charged citizen photographers with felony wiretapping, or as one state calls it, “eavesdropping.” These laws typically require that the photographer get consent from the police before filming any of their actions while on duty. In others states, police have charged citizens with the failure to obey a police officer’s order if the citizen refuses to either stop filming or to hand over the cell phone or camera. Not all prosecutions are successful, but many people have been arrested, jailed, and as a result, forced to defend themselves in court.

In a much-publicized case from Maryland, Anthony Graber faced 16 years in jail after posting a video on YouTube that showed a plain clothes police officer approaching him with a gun drawn and pointed at him. Graber had been stopped for speeding on his motorcycle. He was wearing a helmet fitted with a camera that filmed his ride as he swept in and out of traffic on a busy interstate highway. Ten days after receiving the speeding ticket, he posted the video on YouTube.  The police immediately obtained a search warrant for his home and confiscated, among other things,four computers and the camera. He was charged with four counts of felony wiretapping, an internet crime. Ultimately, a judge dismissed the charges and ruled that Graber had the right to record the officer because there  was no expectation of privacy during a traffic stop. See video at http://www.youtube.com/watch?v=UK3u-C__4T8&feature=related and court’s dismissal of criminal charges at http://www.aclu-md.org/aPress/Press2010/Court_Opinion_092710.pdf

In a case from Boston, Mass., Simon Glik saw three officers arresting a young man. He became concerned that the police were using excessive force and began filming the encounter on his cell phone from about ten feel away. When he refused to follow an officer’s order to stop filming, he was arrested for wiretapping, disturbing the peace and aiding in the escape of a prisoner. All charges were later dismissed, and in a civil case against the officers, a federal courtruled that there is a constitutionally protected First Amendment right to videotape the police when carrying out their duties in public. http://www.youtube.com/watch?v=lhd5_6DHV5s

Officers complain that they do not feel safe if they are engaged in an arrest, which often involve suspects with guns, and a citizen stands behind them, out of their sight. This was the reasoning behind the arrest of a 28-year old Rochester, N.Y. woman who stood in her front yard and filmed the pat down and arrest of a drug suspect that took place in the street. The officer told her that he did not feel safe with her engaging in activities behind his back, and asked her to go inside her house. She refused and was handcuffed and arrested for obstructing justice. One month later, the case was dismissed.  http://www.youtube.com/watch?v=OtJpL2ZdWVI

But here’s a caveat: These cases differ significantly from that of a Cincinnati client I recently defended on similar charges. My client saw several police officers arresting a group of young men.  This was taking place outside of a bar in Clifton–near the University of Cincinnati.  My client had no idea what the men were being arrested for.  He neither knew the severity of the situation, nor whether he was inserting himself into dangerous circumstances.  As it turns out, the suspect was being arrested for possession of a firearm. 

My client used his cell phone to videotape the confrontation and shouted at the police while he did so. He repeatedly called out for an officer who months earlier had fatally shot a man that allegedly tried to stab another police officer. In a video my client posted on YouTube, he appears to be standing a short distance from the officers, who were wrestling with and attempting to gain control over the armed suspects. When my client refused to stop filming, he was arrested on misdemeanor charges of obstructing justice and disorderly conduct at an emergency scene.

Recently, the judge on his case threw out the more serious obstructing justice charge but found him guilty of disorderly conduct. The judge reasoned that my client had injected himself into the situation, which was occurring in close quarters, while he continually heckled the officers. The judge said that my client created a risk of harm to himself in a volatile situation, and that he knew that his actions would incite the police.   My client was placed on probation and ordered to pay a fine.   

The bottom line?

You may have a First Amendment right to videotape the police when they are on duty in a public place, but you need to stay removed from the action far enough away to ensure your safety and theirs. If you draw the attention of the police, you’re too close.

Scott Rubenstein
Cincinnati Criminal Attorney