Recording police making an arrest – Is it Legal?

Video recording the police making an arrest has resulted in many citizens being arrested for obstruction. In most cases, individuals were charged with misdemeanors that were eventually dismissed. In the state of Illinois it was a felony if the microphone was turned on while recording. The U.S. Supreme Court recently refused to review a federal appeals court decision finding that videotaping the police making an arrest was unconstitutional. The federal court held it violated 1st amendment free speech and free press guarantees.

The U.S. Supreme Court has refused to review a federal appeals court decision finding it unconstitutional to enforce an Illinois state law that makes it a felony to videotape police officers working in public if a microphone is turned on.
The law had been challenged by the American Civil Liberties Union, and a divided panel of the Chicago-based 7th U.S. Circuit Court of Appeals agreed earlier this year that it “restricts far more speech than necessary to protect legitimate privacy interests” and, “as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees,” as Judge Diane Sykes explained in the majority opinion (PDF).
On Monday, the nation’s top court declined to hear the state’s appeal, leaving the 7th Circuit ruling in force, the Chicago Tribune reports.
Meanwhile, a number of citizens throughout the country say they have been charged with a crime (often obstruction) while recording police on the job. A Massachusetts man is facing a wiretapping case after allegedly posting a video on YouTube that shows him instructing a female passenger how to use an electronic device to record a traffic stop by Shrewsbury police.
Irving Espinosa-Rodrigue, 26, is scheduled for a pretrial hearing in January, reports the Shrewsbury Daily Voice.
Among other accounts of such incidents recently posted on the Photography Is Not a Crime site, Daniel J. Saulmon tells PINAC that he spent several days in jail earlier this month after being arrested in Hawthorne, Calif., while filming police on a public street. He faced an obstruction case, but says the charges against him have been dropped.
A spokesman for the police department wasn’t immediately available to respond to a Monday afternoon request for comment from the ABA Journal.
For those who want to know more about the legal issues involved in such cases, the American Bar Association Government and Public Sector Lawyers Division is hosting a Dec. 4 teleconference calledVideotaping Police, Wiretapping Laws and the First Amendment. A press release gives the details.

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