Legal Corner: Does the First Amendment protect filming law enforcement?

It is easier than ever to record law enforcement interactions in public spaces. At a time when bystander recordings of federal law enforcement activity dominate the news, courts are increasingly considering claims by people asserting a First Amendment right to record police activity. A growing number of courts across the country have recognized a constitutional right to record law enforcement who are engaged in their duties in public places. This judicially recognized right is subject to reasonable time, place, and manner protections, and generally encompasses both video and audio recording. As such, it is crucial that municipalities stay up to date on the constitutionality of recording government officials.  

 

Eight of the thirteen federal circuit courts of appeal explicitly recognize a First Amendment right to record police officers while exercising their official duties in public. In fact, recording in public spaces, such as on a street or in a public park, is generally lawful. 

 

However, no court has attempted to delineate the outer limits of these rights, iterating instead that the right to record is subject to reasonable time, place, and manner restrictions. Though generally undefined, valid restrictions might limit recording activities that physically interfere with operations or tamper with evidence, or require some distance from officers for officer safety. Officers may be able to limit recording to prevent witness tampering or intimidation. To date, no federal circuit has held that individuals do not have a right to record police officers in public.  

 

In 2022, the Tenth Circuit considered and decided Irizarry v. Yehia, recognizing a First Amendment right to film police performing their duties in public.  

 

Irizarry, a YouTube journalist and blogger, regularly published stories about police brutality and conduct. On May 26, 2019, he and three other Youtuber journalist/bloggers were filming a DUI traffic stop of another person in Lakewood, Colorado to later post on their respective social media channels. Irizarry alleged that an officer arrived at the scene and intentionally positioned himself to block the camera's view of the sobriety test. When Irizarry and the others verbally protested the intentional obstruction and criticized the officer, the officer shined a bright flashlight into the cameras to saturate the footage. Irizarry alleged that the officer then got into his cruiser and intentionally drove right at the men and began blasting his airhorn to get Irizarry to move and stop recording. 

 

 Irizarry initiated a lawsuit, claiming that the officer violated his First Amendment rights. While the district court dismissed the lawsuit, the Tenth Circuit reversed, finding that such actions were clearly established as retaliation under the First Amendment based on core First Amendment principles and relevant precedent from other circuits. The Court found the injury alleged in these facts would chill Constitutionally protected activity and that the officer’s adverse actions were substantially motivated by Irizarry’s protected activity.  

 

Colorado courts have not recognized a right to record under the state constitution, but likely would follow the Tenth Circuit’s interpretation of the federal constitution. C.R.S. § 16-3-311, however, protects a citizen’s right to record any incident involving a Colorado peace officer, so long as the act of recording does not interfere with the officer’s lawful performance of duty. The statute prohibits officers from seizing records without consent, a judicial order, or an exception to the constitution’s warrant requirements. Further, C.R.S. § 13-21-128 establishes that if a police officer is found to have interfered with an individual’s right to record, seized or damaged the recording device, or retaliated against the person for recording, that individual may petition the law enforcement agency to reimburse the cost of any damaged equipment, in addition to $500 for the loss of the recording itself. If that petition is denied, they may bring a civil lawsuit against the agency for those costs.  

 

Several states, including Arizona, Mississippi, and Florida, have attempted to undermine the right to record through legislation. Such states have attempted to capitalize on the ambiguity of the cases defining the scope of the right and taken action to pass recording restrictions and publishing restrictions. These attempts generally do not pass state legislatures or have been blocked by the judiciary. An Arizona law made it a crime to record a police officer within eight feet of the activity if the recorder had been ordered to stop by an officer. The bill passed the legislature and was signed by the governor, but its implementation was blocked by the judiciary for unconstitutionally infringing the First Amendment.  

 

While the increase in video footage documenting police misconduct seems to have cemented a public expectation of the right to record, the U.S. Supreme Court has never considered the issue. Additionally, Congress has not passed any law codifying an individual’s right to record law enforcement. Historically, the Supreme Court has often favored law enforcement functions. Previous decisions have: restricted the ability to sue municipalities for injunctive relief over chokehold policies, authorized law enforcement to stop people for reasonable suspicion of a traffic violation, even if it is pretext for a drug search; and endorsed qualified immunity to shield officers from liability. On the other hand, the Supreme Court has also been highly protective of the exercise of First Amendment rights and has overturned police tactics that violate constitutional protections.  

 

If the U.S. Supreme Court ever casts doubt on the right to record under the U.S. Constitution, the impact in Colorado would be limited to recording of federal officials and to any constitutional claims. The right to record statute would still apply to Colorado law enforcement officials. 

 

Ensuring your local police are well informed and trained in their duties to abide by a private citizen’s right to record is the best way to eliminate any potential altercation or confusion. The Colorado Department of Revenue has a resource in Policy Manual 418, which establishes guidelines for handling situations involving the public recording of law enforcement activity. Consult your municipal attorney to ensure that training protocols are up to date to ensure that all parties, officers, and citizens alike, are protected from adverse action.