Updated on April 22, 2023
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.
The First Amendment affords us all the following protections:
Freedom of speech
Freedom of the press
However, as comprehensive as these rights are, they are not without certain limitations. As such, there are times when filming the police in the course of their work is against the law.
ACLU Weighs In
ACLU of Texas weighs in on our legal right to film the police at work and begins by saying, “Taking photographs of things that are plainly visible from public spaces is a constitutional right.” They go on to report that this includes taking photos in federal buildings, in transportation facilities, and when government officials like the police are going about their official jobs.
While the police tend to shut down citizens who take photographs or videos of them in public spaces, our right to do so is generally well protected, and knowing the ins and outs of this right can help you better protect it.
Your Right to Take Photos
When you are lawfully in a public place, your right to take pictures of anything in plain view is protected. Such photos amount to a form of public oversight over the government, which is an important pillar of our overall freedoms.
When you are on private property, however, you are required to follow the property owner’s rules regarding photography and videography. If you fail to do so, you can be ordered off the private property and may be arrested for trespassing.
Exceptions to First Amendment Protections
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 in any of the following situations:
You are interfering with the officer.
The recording violates 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. If you find yourself in this situation, contact a Waco criminal defense lawyer right away.
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.
If you recognize that you may have overstepped your legal boundaries, it is time to oblige. However, if you believe you are well within your rights, it is time to assess the risk associated with being arrested in the heat of the moment, which can be considerable.
2. You Cannot Violate Wiretapping Laws
If you are recording audio along with the footage, you might be violating 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 least 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.
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, such as the following:
Harassment
Trespassing
Stalking
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 situation and determine whether you were arrested for recording the police or violating any laws.
If You Witness Police Brutality
In recent years, there has been a range of cases involving police brutality. Often, photos and videos taken by the public have played a critical role in bringing examples of this brutality to light. If you witness something that you believe is an abuse of authority, you should keep several key points in mind.
Proceed with Caution, but Proceed
If you witness something involving the police that you believe should be recorded, remember these points to safeguard yourself in the process:
Remain a safe distance away from the police and use your phone to record what you see – without interfering with the proceedings. As long as you do not thwart the officers’ efforts, you have the right to observe and record them – as long as the activity is plainly visible in a public place.
If you do photograph the goings-on, it is important that you do not hide the fact. While the police have no reasonable expectation of privacy while doing their jobs in public spaces, the private individuals they are questioning or arresting do.
According to the Reporters Committee for Freedom of the Press (RCFP), in Texas, “the law . . . does not criminalize the use of recording devices . . . in areas to which the public has access or there is no reasonable expectation of privacy.”
Remember that if an officer orders you to hand over your phone or camera, you have the right to refuse and remind them of your First Amendment rights. It is also important to calculate the risk involved if you are arrested for your refusal – even if it ends up being an unlawful arrest.
Even if you cannot record everything or do not have a clear view of exactly what is happening with the police, you should make it your business to memorialize everything you hear and see in writing, including badge and patrol car numbers, officer names, involved agencies, number of total officers, weapons used, and injuries sustained.
Giving your contact number to the other person involved – if they are not ultimately arrested – can go a long way toward bolstering any complaint they may file in the future.
Understanding your rights as they relate to recording police officers – and their limitations – will serve you well.
Can the Police Officer Take My Phone to View or Delete the Recording?
Police officers need a warrant to take and search your cell phone, 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.
Without a warrant, the police are barred from doing any of the following:
Taking your smartphone from you without your consent
Searching your smartphone without your consent
Requiring that you delete a recording from your smartphone
Deleting a recording from your smartphone
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).
If consent is required, do not provide it. Even if the officer does not request consent, it is in your best interest to let them know that no consent is given. The police have a long and storied history of overstepping the legal boundaries that are put in place to contain them, which makes taking a proactive stance paramount.
What Should I 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 do anything that has the potential to escalate the situation.
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) 781-4222 or fill out our contact form to schedule a FREE, no-obligation consultation.