In this post, I’m going to go over a situation that I’m sure we’ve all seen. I’m not sure how often it occurs in reality, but when it does occur, it always seems to go viral.
Can you take a photograph or video of law enforcement when they’re making an arrest or detaining someone for an investigation?
A lot of the videos I’ve seen before where, for example, someone tries to record law enforcement officers making an arrest involve one or more of the officers threatening or informing the person to put their camera away because making a recording “interferes” or “obstructs” the officers in some way. Three thoughts come to my mind in response to a statement like that:
- There are enough cameras nowadays everywhere that we’re all being videotaped and photographed in some way every day. This doesn’t even consider the stuff that people voluntarily share on social media.
- It’s implausible for anyone to expect that anything they do out in the open on a public street is private or confidential in anyway. If you want privacy, confidentiality, etc, you’re not going to find it on a public street.
- Government is supposed to be transparent as well which means that any government employee (e.g. law enforcement officers) should expect that the public would be interested in what they do.
For all of these reasons, I personally don’t buy in to the argument that merely recording or photographing law enforcement officers detaining someone, arresting someone, etc is obstruction, interference, or is in some way improper. If you feel similarly and you’re in California, you’re in luck because California law agrees with you. In late 2015, then-Governor Jerry Brown signed California State Senate Bill 411 (SB411) in to law. SB411 modified section 69 and section 148 of the California Penal Code effective January 1, 2016 to add a 69(b) and 148(g) subsection.
California Penal Code section 69
Prior to SB411, California Penal Code section 69 had no subsections and simply read:
“Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
Link to the old version of Section 69 here.
“(a) Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.(b) The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).”
- You can’t be doing anything else illegal while taking photographs or making the recording. If you are doing some other illegal thing, that can be an independent basis for the officer(s) to detain you, cite you, arrest you, etc.
- When the recording is made or photograph(s) taken, either the officer has to be in a public place or the person making the recording or taking the photograph has to have a right to be where they are.
Even if these conditions/caveats are met, a subtle point is that section 69(b) only says that taking a photograph or making a recording of an officer is, by itself, not a violation of section 69(a). Section 69(b) technically does not say that members of the public have a right to record or photograph law enforcement officers. Thus, I would say it is theoretically possible that you could be charged with some other criminal offense besides violation of section 69(a), even if you were doing nothing else illegal and there was no violation of section 69(a) in terms of where you were or where the officer was. My gut feel is that such a charge would be unlikely as it would seem to contradict section 69(b), but the law is sometimes funny that way.
Also, hopefully these conditions/caveats aren’t a surprise. If you want to make a recording or take photographs of law enforcement officers, common sense should tell you that, for instance, you should stand far enough away as to not cause the officers to be concerned that you’re going to harm them. Similarly, common sense should tell you that if the situation is dangerous in some way (e.g. suspect is armed, car that’s on fire could explode, etc), you should stand far enough away so as to not endanger yourself.
California Penal Code section 148
Section 148 and section 69 read very similarly. Section 69 deals with deterring or preventing an officer from fulfilling his or her duties with threats or violence. Section 148 deals with willfully resisting, obstructing, or delaying an officer. I’ve not had a case involving the practical difference(s) between these two statutes (e.g. when a prosecutor would charge one versus the other, etc).
“Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
I’m not going to go over the other subsections of section 148 — at least in this post — but they deal with specific details of obstruction such as disarming a police officer and interfering with police radio transmissions.
The pre-SB411 and post-SB411 version of 148(a)(1) are the same. The only thing SB411 did do to section 148 is add a subsection 148(g). Prior to SB411, section 148 stopped at subsection 148(f). Post-SB411, section 148(g) of the California Penal Code says:
“The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.”
Link to old section 148 here.
The point of section 148(g) is similar to section 69(b) from above — namely, merely making a recording or taking a photograph of a law enforcement officer is not a criminal violation. However, do note that section 148(g) is worded differently from 69(b) which, again, says:
“The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).”
Section 148(g) contains the clause “not does it constitute reasonable suspicion to detain the person or probable cause to arrest the person” while section 69(b) doesn’t. As always, the presumption is that this difference was deliberate and intentional by the California Legislature. The significance of this difference, however, will depend on the case you’re dealing with.
As always, I hope this post was helpful. I haven’t gone over every possible nuance and detail pertaining to photographing or recording the police. If you’re reading this post and intend to rely on it some way, please do your own research because the authority I cite to above may have changed in the time between when I wrote the post and when you’re reading it. The law is a living and breathing organism and it changes with time, cultural views, technology, etc. If you do have a case involving a recording or photograph of law enforcement, please do find a lawyer in your area with whom you can discuss your situation in person.
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