The rise in access to smartphones has shown us that recording police encounters in plain view has several effects. The most important contribution is that reversing the role of surveillance and putting a microscope on their activity holds them more accountable for their actions – hopefully causing them to change their behavior toward civilians. Recording or photographing anything in plain view is entirely legal. It’s essential to know when and how you can use this powerful right to protect yourself and those in your community.
Reasonable Expectation of Privacy
Every individual has the right to a reasonable expectation of privacy. You can expect privacy in your home, car, office, and public restrooms. Examples of privacy for personal property include things like the data on your phone, computers, journals, phone calls, and what’s contained within backpacks, wallets, pockets, etc.
However, there are a lot of spaces where no one has a reasonable expectation of privacy. Being within a public area such as a sidewalk or public park, you, your conversations, and your belongings may not have a reasonable expectation of privacy. Anything that is shared willingly and publicly is no longer considered private. This may be obvious to some people, but having no reasonable expectation of privacy in these spaces also applies to law enforcement, who frequently assume otherwise.
Should I Record Police Activity?
You not only have the right to record the actions of law enforcement, but you should do so for your own protection and the protection of those around you. Suppose you’re worried that recording will somehow negatively impact you. In that case, it’s important to know that Texas is a one-party state, meaning you may record anyone who does not have a reasonable expectation of privacy without their knowledge or consent. For example, if you are pulled over, you may continue recording on your dashcam or use your phone to record the interaction without the knowledge of law enforcement. If you are a witness to someone being detained, as long as your recording does not physically impede law enforcement from carrying out their tasks, you may continue recording even if they ask you to stop.
Although many jurisdictions have bodycam requirements for law enforcement, there is often no requirement for police to ensure that the equipment is even functioning. For example, during the killing of Tyre Nichols, none of the offending officers were recording with a bodycam, though ironically, a police-funded surveillance camera was able to record the event. The fight to bring these officers to justice may not have even occurred without this footage.
Considerations When Recording
Every law enforcement officer will behave differently toward the idea of being recorded. In some cases, they might casually ask you to stop; in others, they might attempt to force you to stop physically. Law enforcement may not:
- Confiscate or demand to view the data on your recording device without a warrant.
- Delete or demand that you delete the data on your recording device.
- Destroy your property to prevent you from recording.
In the event that police will not drop the subject, you may ask them “am I free to go?” If they fail to answer, continue to assert yourself by asking the question. Even if they refuse to answer, that is not an indication that you are breaking the law. As a criminal defense firm, we are dedicated to educating and empowering individuals to create a more just community. If you or someone you know require legal guidance or have questions, call our office at (806) 372-5711 to schedule a free consultation.
Ryan Brown
