The do's and don'ts of recording law enforcement in action
"We operate under the assumption that no matter what we do or where we go, people are going to be recording us."
Lt. Cameron Wassman of the Central Michigan University Police Department expects to be recorded every time he’s out on patrol.
“We operate under the assumption, and have for a long time, that no matter what we do or where we go, people are going to be recording us,” Wassman said.
Over the past few weeks, several high profile incidents involving the shooting of black men by white police officers were brought to public attention because a witness recorded the incident with their cell phone.
The ubiquity of cell phone cameras has made it easier than ever for citizens to record police while they interact with the public. Being recorded while working can be distracting, Wassman said, but added that his department's officers have nothing to hide. He said there aren’t many limits on what the public can record as long as they don’t impede officers.
“(It’s fine) as long as it’s not impeding any kind of investigation — as long as it’s not creating a safety hazard,” Wassman said. “If you have to get out in the middle of Mission Street to film me on my traffic stop, that’s a problem. As long as you’re not being disruptive, there’s really not a whole lot of restriction.”
An article authored by attorney Joseph Richotte of Butzel Long cites Glik v. Cunniffe, a U.S. Court of Appeals for the First District in which the judge ruled the public and the press have a right to record police in public spaces. The rule is non-binding in Michigan, which is part of the sixth district, but Richotte says other courts have ruled in favor of recording police in similar cases.
There might be exceptions, Richotte said.
"Generally, you can record police officers performing their duties in public places," Richotte said in an email to CM-Life. "On occasion, an officer may tell someone to stop recording police activity. Whether this is appropriate usually depends on the circumstances. For example, police officers are permitted to control the scene of an arrest or a traffic stop. If you are too close and may interfere or otherwise jeopardize the security or integrity of the scene, they can order you to move away to a reasonable distance."
Witnesses should be mindful of keeping distance if an incident involves a weapon. Wassman said anyone recording investigations should consider the privacy of those involved in an incident.
“Just be respectful. Give us space,” Wassman said. “Keep (the victim’s) interests in mind too. If somebody is beat up and bloodied, as that victim, think about what they would think of being posted all over the internet.”
Officer Jeff Browne of the Mount Pleasant Police Department remembered an experience from last year’s Welcome Week in which he was being recorded while issuing a citation. Afterwards, Browne said the man recording him said, “You know, I was hoping you would do something stupid so I could put it on CNN.”
Police may also request phones and cameras if they believe the recorder captured evidence, Browne said. If a crime occurred during an interaction between police and the public, the video could be relevant in determining what happened and who the suspect is.
CMU Faculty Member Timothy Boudreau said a citizen can request to see a warrant before handing over the phone.
"They shouldn't be able to seize your phone (without a warrant)," he said.
Police also cannot demand recordings be deleted.
"If they tell you to destroy your recordings, I'd say 'no,'" Boudreau said.
An officer can arrest a citizen who refuses to comply with an order, Richotte said, even if the officer is wrong. If members of the press, or citizens, feel they have been unfairly asked to put away their camera it may be best to raise the issue later.
"The better course of action is to get the officer’s name and badge number and make a record of everything that was said," he said.
Both Wassman and Browne said officers do not receive formal training on how to deal with being recorded by the public, but that the issue is discussed frequently within the department.
“I really don’t believe that our actions and how we operate change whether there’s a camera present or not,” Wassman said. “We want to hold ourselves to a high standard. We want to act appropriately. From our perspective, it really doesn’t matter if we’re being recorded or not.”
Richotte provided CM LIFE with the following document for additional background on recording police in Michigan:
