Is It Illegal to Record Police Officers in Texas?
Nowadays, almost everyone can use their smartphone to record encounters with police officers. But many Texans do not know their constitutional rights, and some think it is illegal to record police officers in Texas.
But can you actually take photographs or videotape law enforcement officers who are performing their duties? The short answer is, “In most cases, yes, you can.” However, under very limited circumstances, it is illegal to record police officers.
If you have been arrested for filming the police or exercising your other constitutional rights, contact a Waco criminal defense lawyer as soon as possible.
Your Right to Record Police Officers is Protected by the First Amendment
The First Amendment to the U.S. Constitution protects your right to take photos and record videos of law enforcement in public places when officers are performing their official duties.
Even though the First Amendment protects your right to film the police, it does not mean that you have unlimited rights. There are certain instances when it is illegal to record police officers.
You cannot film law enforcement officers if any of the following is true:
You are interfering with the officer;
The recording violates the wiretapping laws;
You are otherwise breaking the law while recording your interaction with the police (or someone else’s interaction with law enforcement officers).
In some cases, citizens can also be arrested for recording police officers secretly.
1. You cannot interfere with the police officer
You can be arrested for a violation of Texas Penal Code § 38.15 (interference with public duties) if, by recording the police officer, you impede, interrupt, disrupt, or otherwise interfere with the officer who is performing their official duties.
You can be charged with a Class B misdemeanor for filming a police officer if you are obstructing the officer by videotaping the encounter. For example, you might be interfering with the police officer if you are standing too close to the officer who is arresting a suspect or if you are obstructing an investigation.
However, the police officer must order you to stand back or otherwise stop interfering with the law enforcement investigation before arresting you for interference with public duties.
2. You cannot violate the wiretapping laws
If you are recording audio along with the footage, you might be violating the wiretapping or eavesdropping laws. Depending on state laws, it may be illegal to record police officers without their consent or knowledge. This is known as the wiretapping law, which protects the privacy of citizens and peace officers performing their duties.
However, Texas allows audio recordings with the consent of at last one party to the conversation (Texas Penal Code § 16.02). In other words, you can record your own encounter with the police without violating Texas’s wiretapping laws because you are one of the parties to the conversation.
Note: When you are a witness or bystander – but not a party to the conversation – it may still be legal to record video and audio of someone else’s interaction with the police if such encounters occur in public where there is no reasonable expectation of privacy.
3. You cannot break any other laws while recording the police
Just because it is not illegal to record police officers in Texas, it does not mean that you have a right to break other laws while filming the police. If you are recording a police officer, you could still be arrested if you are committing other crimes, including:
Your First Amendment rights may be violated if your arrest was meant to stop you from recording or retaliate against you for filming the police. Otherwise, if you are committing a crime or breaking any other law while recording the police, you can be lawfully arrested.
In most cases, it is best to consult with a Waco criminal defense lawyer to evaluate your particular situation and determine whether you were actually arrested for recording the police or violating any laws.
Can the Police Officer Take My Phone to View or Delete the Recording?
Police officers need a warrant to take and search your cellphone, even if you are being arrested. The First Amendment to the U.S. Constitution protects citizens from unlawful searches and seizures of their property, including their phones and cameras.
Similarly, a police officer cannot demand to view the recording or photograph without a warrant. The officer cannot request to delete your recordings or pictures – or take your phone to do it himself/herself – under any circumstances.
The only exception to the warrant requirement in such situations is the presence of “exigent circumstances” (for example, someone is in imminent danger of severe bodily injury or death).
What to Do if I’m Detained or Arrested for Recording the Police?
If you are stopped, detained, or arrested for recording police officers or taking photographs, follow these steps:
Remain polite and keep calm.
Do not attempt to physically resist an arrest (this will only make things worse).
Ask the officer, “Am I free to go?” This question will help you understand whether you are being detained or are actually free to go. Until you ask the question, you are voluntarily complying with the officer’s request. If the officer tells you that you cannot go, it means that you are being detained.
If detained by the police while recording them, ask, “What crime am I suspected of committing?” If the officer tells you that you are detained or arrested for recording or taking photos, tell them that you are exercising your First Amendment rights.
If you have been arrested for recording police officers, exercise your right to remain silent and do not answer any questions. Tell the police that you want to speak to your attorney first. At this point, it is in your best interests to call an attorney to protect your rights.
Call Us Today to Speak with a Criminal Defense Attorney in Waco
Do not hesitate to contact a Waco criminal defense lawyer if you have been detained or arrested for videotaping police in Texas. At The Law Office of Brett H. Pritchard, we are committed to fighting for your constitutional rights and advocating for your best interests. Call 254-501-4040 or fill out our contact form to schedule a free, no-obligation consultation.