Is it Illegal to Take Photos of the Police?

Posted April 5, 2012 in Criminal Law by

A journalism student at Temple University was arrested in Philadelphia last month for taking pictures of a police traffic stop, only one of many recent incidents of police nationwide taking issue with civilians and media members photographing their activities. Is it illegal to take pictures of the police in action?

  • Absolutely legal to take photos of police in public places
  • Audio recordings may not be legal in certain jurisdictions
  • Major First Circuit ruling upholds right to video police


Homework Assignment Leads to Arrest

Temple student Ian Van Kuyk was just doing his homework. According to his side of the story, he saw what appeared to be a routine police stop one March evening while sitting with his girlfriend in his South Philly neighborhood, so he pulled out his camera and started taking pictures for a photography class. When the officers asked him to stop, he reminded them that he has rights under the First Amendment to take photos in public places. Wrong answer, cops said, and hauled him and his girlfriend off to jail.

The police have taken a different tack, claiming that Van Kuyk was arrested for obstruction, resisting arrest and disorderly conduct. Though he obeyed a police order to back up, the officers still found it necessary to push him to the ground before arresting him.

Absent other evidence that hasn’t come to light, the police case looks flimsy. “The rule of thumb would be if you are out in public, and you see something in public, you are allowed to photograph and record,” says Mickey Osterreicher, general counsel for the National Press Photographers Association, who wrote a letter of support for Van Kuyk to the Philadelphia Police Department. 

“There is no excuse for your officers to intentionally disregard a citizen’s right to photograph an event occurring in a public place,” the letter stated. “At best, behavior that chills free speech, is extremely unprofessional, at worst it is criminal.”


Break Out the Tasers

In the wake of Van Kuyk’s arrest has come public outrage and reminders that yes, on-the-clock police are fair game for photography, along with anyone else on a public street. However, the Temple case is far from unique when it comes to image-related police misconduct in recent years. “I deal with this on a daily basis around the country,” Osterreicher says. “We have had our members and regular citizens taking pictures of something as innocuous as a building on a city street, told they’re not allowed to photograph something on a public street.” Some of the more high-profile incidents:

Multimedia journalist Carlos Miller keeps track of related First Amendment attacks on his blog Photography Is Not a Crime. Miller himself has been arrested three times for snapping pictures of police.


Know Your Rights

Mickey Osterreicher

To avoid conflict, the Press Photographers’ attorney suggests you take all the photos you want, but be respectful of police and don’t invite confrontation. “Don’t do it surreptitiously,” Osterreicher says. “You’re not trying to hide anything.”

“Certainly don’t interfere. Don’t get in between officers and what they’re dong. Stay back a respectful distance. There’s no reason to get real close. Just use common sense,” the lawyer says. “If someone asks you to move back five or 10 feet, that may be reasonable. When someone orders you to leave an area where something interesting is going on on a public street, that may not be reasonable.”

If the police do harass or arrest you, don’t mouth off, but ask to talk to a supervisor or public affairs officer. Above all, don’t stop recording or snapping pictures– that can be your best evidence that you were acting within your rights. “Time and time again, we have seen that the video and what transpired in the video differs greatly from what the officers claim,” says Osterreicher.


Audio May Be a Problem

Even in situations where security officers are known to hassle photographers, like at airports and major bridges that could be terrorist targets, it is still perfectly within your rights to snap away with a still camera or silent video. The only real exceptions might come at certain areas within military installations.

One caveat– Videos that record audio may violate wiretapping laws in certain states. In fact, Illinois legislators explicitly wrote a law against audio-recording police without their permission, though the ACLU is challenging the law and it may not stand up in court. “Audio may be a problem, as to whether law enforcement agents have a reasonable expectation of privacy,” says Osterreicher. “My opinion is they don’t.”

Last year, the First Circuit Court of Appeals ruled in favor of broad rights for journalists and the public to take videos of the police, wiretapping laws notwithstanding. The First Circuit ruling hasn’t been tested in other jurisdictions yet. 

“Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs,” the court ruled. “The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.”

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