In California, Public Recording of Conversations is Legal If There Was No Reasonable Expectation of Privacy
By Michael P. Ehline, Esq. – First, let me start off by saying that I love the police and that many of my Marine Corps. brothers are now Deputy Sheriffs, or CHP. I am pretty sure at least one Redondo Beach K-9 cop is also an inactive Marine. So the bad things I am about to say about bad cops, is about BAD Cops, not the good ones. In the Corps, we called them “sh+*birds”.
Now that is out of the way, let’s delve into the law. First, we will discuss the recording of non police, so we can get a baseline and basic understanding of California privacy laws and then we will go into the police. So, in California, if you record a private person, and they don’t know, even if in a public, or even a semi-public place such as a out on the sidewalk, bike path, or eating establishment, the individual you are taping, may not have “an objectively reasonable expectation that no one is listening in or overhearing the conversation.” This is determined on a case by case basis, based upon the reasonableness of the circumstances. This means you cannot simply assume that you are not breaking the law, when you make a recording of a person, under such circumstances.
Failsafe When Recording Private Citizens – Get Consent First
The statute applies to “confidential communications” — i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989).
In California, always try and get the consent of all parties before recording them, especially if it is reasonable to assume their communications might be “private” or “confidential.” In addition to subjecting you to criminal prosecution, a violation could also trigger the California wiretapping law in a civil lawsuit for damages by the victim(s). (See also Cal. Penal Code § 637.2.) California’s wiretapping law requires “two-party consent”. In California, in is a criminal act, to record or eavesdrop on confidential communications, like private phone calls, private chats, without the consent of all parties to the conversation. (See Cal. Penal Code § 632.) See also http://www.citmedialaw.org/legal-guide/california-recording-law
Recording of Public Meetings:
In California, all public meeting are legally allowed to be recorded. This means you can video-tape them, unless the state or local body holding the meeting determines that the recording disrupts the proceedings by noise, illumination, or obstruction of view. (Cal. Gov’t Code § 11124.1(a); Cal Gov’t Code §§ 54953.5(a),-.6.) *To learn more, see the “The Reporters Committee for Freedom of the Press’s Open Government Guide: California.” (Click Here.)
Ok So Can I Record Cops?
In California, it is well settled law that yes, you can record cops, but only while they are on duty, and you can’t interfere with their official duties. Otherwise, they are private citizens, subject to the same protections above, as anyone else. Other jurisdictions agree. The First Court of Appeals stated that is ok for the general public to video-tape public servant, eg, police officers, while they are working. This decision took place after cops were piecemeal arresting citizens who were recording them and the stories were run on television news channels. http://technorati.com/technology/article/federal-courts-rule-it-is-not/
In California Can I Record The Police With Video?
The internet, especially Youtube, has shown both the good, and the bad side of police, especially the TSA goons at the airports. Many agencies, although having received multiple citizen complaints against certain rogue officers, simply chose to act as though there was not a problem with their personnel ignoring their sacred oath(s). These are other ones that do not make it to the internet, because no one is there to exercise their First Amendment Rights, or the recorder gets stomped, or confiscated and erased.
Here is An Example of Bad Cops
Here is an Example of a Good Cop
In the examples above, in video one, you see a man filming an arrest, and the police arresting him for filming the arrest of someone else. Conversely, in the second video, you also see an Oceanside cop who is an inactive U.S. Marine, who understands the law of “open carry”, and who also does not object to the future Youtube video.
So this may freak you out. Two cops doing the reverse of one another. The question is, how legal is it to film the police in public, really? There have been some individuals, who have been prosecuted for filming the police. The reason this was able to be done, is because they were charged using outdated wiretapping laws, or with Penal Code Section 148, (resisting, obstructing, delaying…).
When All Else Fails Penal Code Sec. 148
PC Sec. 148 is the favored section bad cops use to charge people who the police had just violated, such as civil rights violations and excessive use of force. It is a common practice by bad cops to charge someone they just beat, or violated, with a crime, so they can get leverage in a future civil case if they are sued, and to give the police union some firepower when they are trying not to get terminated for being a bad cop. If an arrested criminal defendant pleas out to the false charge (no contest, not guilty, etc) out of fear, or for lack of money to pay a lawyer, or are “strong armed” by the public defender, etc, the officer can later argue reasonable force or methods were used, and that it is res judicata, etc. in any future civil rights lawsuit. This is the favored method they historically have used, and it is very effective at restricting the unalienable rights of the sovereign (you).
Seal Your Coffin With Outdated Wiretap Laws – Really?
Now, these old wiretap laws were enacted in the past to prevent the recording of private conversations. District attorneys faced with prosecuting anyone arrested by police for filming, have only been able to find wiretapping laws to nail the citizen, or try and use obstruction charges above, but as a pre-text and punishment. Obviously unjust and Orwellian right? Well Courts agree!
This attitude by over zealous prosecutors was forcibly changed recently, with actions of the U.S. Supreme Court, when they chose not to hear the pleas of the ACLU v. Alvarez. The court left in place a ruling by a U.S. Federal Appeals Court ruling, which declared the Illinois wiretapping laws used for filming of police was a violation of the individuals First Amendment Rights. Amen!
This was a decision that makes sense, and is right, but UCLA Law Professor Eugene Volkh said there will still be problems. Professor Volkh said in a recent television interview, that police officers are not even sure what the law is, and this can lead to your arrest when you disobey the officer ordering the filming be stopped. He said the worst thing that can happen is being taken to the station, where you would be released a few hours later.
Filming our Public Servants Helps Keep them Honest
The good news is law enforcement officials are protecting citizens Constitutional rights. One example of this occurred during Thanksgiving weekend at an airport in Albany. A grassroots movement was there informing travelers about the dangers of TSA bodyscanners and filmed the encroaching pat-downs at the Albany International Airport. One airport official demanded the activists stop filming, show their identification and be arrested for breaking the law. Local law enforcement were called to the scene, where the sheriff told the airport official that the activists were not breaking the law, and he could not arrest them or order them to show their identification. This is no surprise, since the Sheriffs almost universally understand that many federal enforcement officials trample on individual rights as a matter of course.
The sad part about this is not all members of law enforcement will behave in this manner as did the Shire of the Reef above. In most cases, threats of arrest and intimidation by law enforcement is usually enough to make the activist or individual stop filming. The one thing to remember, it is legal to film the police.
How Not To Get Charged With Obstructing or Delaying
Do stand far enough away from the officer to allow him or her to feel safe. Do not run, at or stand close to an officer who is performing their duties, if in any way, you provide a physical barrier to them. Do be respectful. They are not your enemy. Let them know that you are exercising your First Amendment Right to film, and that if they feel you are a threat, to tell you right away, so you can alter any perceived behavior, to make them feel safe in the performance of their duties, short of you not exercising your right to record them.