Can I Record Police in Florida? Constitutional right to record cops threatened in Florida says Fort Lauderdale Criminal Attorney
You have a right to record the police. Photos and videos are always FULLY protected by the First Amendment (some states may have differing laws on video audio). Even if stopped by police, they cannot take or confiscate any videos, photos, or your phone or camera without a warrant.
Here’s the problem: In Florida, the right to record police is being undermined. A Boynton Beach mother was arrested outside a movie theater for filming police detain her son in 2009. In a 2-1 opinion by judges at the 4th District Court of Appeal in May 2021, her arrest was upheld.
“In short, she obstructed their investigation and processing of her son’s detention — a lawful execution of their duty,” Judges Melanie G. May and Edward L. Artau wrote.
At the time of Tasha Ford’s arrest, police officers said that they gave her repeated orders for her to stop using the camera without their permission, stating it was interfering with the investigation of her son, a teen accused of sneaking into a theater (by the way... Police don’t even have a “right” to have someone participate in an investigation. Citizens have a right to remain silent).
Lawyers for the officers argued Ford invaded their privacy, justifying the charges of intercepting oral communications and obstruction without violence.
“The appellate court judges in the majority did not comment on the issues about the video recording, aside from noting that they had watched it. They noted only that the police had “probable cause” to arrest Ford on the obstruction charge,” according to the Sun Sentinel.
Why We’re Concerned About This Unjust Appeal Court Decision
We do not believe that the claims of Ford “interfering” with police conduct have any solid legal backing. Simply recording the police does not interfere with their job. Maybe if the mother had inserted herself in the situation and literally placed the camera in an officer's face or something more dramatic of that nature, maybe then there would be a legal basis for her “interfering” by filming the police in South Florida.
As you’ll learn below, recording police is a constitutional right. The officers said they didn’t give Tasha Ford their permission to be recorded. The thing is, police do not have to give their permission to be recorded. If they are in a public space, civilians and citizens have the right to take photos and videos of them or of an incident.
This decision of the appeals court is an affront to Floridian’s First Amendment Rights. Unfortunately, only one of the three judges thought so.
In a lengthy statement, Judge Marta C. Warner wrote Tasha Ford did nothing wrong and that the police have NO reasonable expectation of privacy in public places (more on this later). We fully agree with this statement.
“Given how important cellphone videos have been for police accountability across the nation, I do not believe that society is ready to recognize that the recording of those interactions, which include audio recordings, are somehow subject to the officer’s right of privacy,” Warner explained.
Warner concluded that Ford should not have been charged with obstruction because she did not get in the way of the officers doing their job.
“She did not stand between her child and the officers so as to physically impede their duties,” the judge wrote. “She merely passionately expressed herself as any mother might do.”
Warner warned that the off-base ruling would mean “everyone who pulls out a cellphone to record an interaction with police, whether as a bystander, a witness or a suspect, is committing a crime.”
Other South Florida lawyers agree that this appeals court ruling was errant.
“Citizens filming police officers is absolutely essential to transparency and accountability,” James K. Green, a prominent civil rights lawyer from West Palm Beach said. “Without being able to record law enforcement officers engaged in interactions with citizens there’s no way really to hold them accountable. It’s just their word against the citizens.”
Across the United States, Federal Courts have found that the public has a constitutional right to record cops. The Federal appeals court, which includes Florida in its jurisdiction, has ruled people have a First Amendment right to photograph and videotape police conduct - subject to reasonable time, manner and place restrictions.
Thankfully, the State Attorney’s Office declined to prosecute Ford, but she sued the cops with a false arrest claim.
Boynton Beach Backs Police who Arrested Mom for Filming Arrest
The City of Boynton Beach announced it was “pleased” with the appeal court’s decision, according to the Palm Beach Post. A spokeswoman said “The decision confirms that Boynton Beach police officers acted in accordance with Florida law.”
It is unfortunate that the city of Boynton Beach seems more interested in protecting the view of their police officers rather than protecting the constitutional rights of all people in the United States.
Boynton Beach Police did not comment to The Palm Beach Post “on under what circumstances they will now arrest citizens who record them.”
The PB Post also noted that police can legally record citizens - whether through body cameras or standard cameras. Could not citizens under this same ruling then perhaps file suits against the police for being recorded on Body Camera “without permission” and in violation of their reasonable expectation of privacy?
Your Right to Record the Police in Florida: ACLU Florida
Case law from the U.S. Court of Appeals for the 11th Circuit, which presides over Florida, clearly holds that people have “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct;” writes the ACLU. The case also holds that people have “the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”
There is case law in Florida that protects citizens ability and constitutional right to record the police. Granted, there are some minor stipulations.
When Can you record the police in Florida?:
- Anytime you are in an open public space where other individuals can witness what is happening, you can record the police. This includes most public roads, public parks, public beaches, etc.
- This is similar to other media or news law which essentially boils down to: if you are out in public, you are effectively consenting to your photo being taken, for example. The Supreme Court has long held that people have a protected right to a reasonable expectation of privacy. If you are out in public, the idea is basically that you are trading in your ‘right to privacy’.
- As long as you are not interfering with police activity, you are allowed to record police in public spaces.
Police Recording Safety Tips from ACLU
While we wish recording police weren’t a problem, and that the right to record wasn’t so threatened, the fact of the matter is that Florida has made this complicated (especially when police are often already recording us on body camera). Here are a few tips for your safety if you want to record the police:
- Always make sure that you have the right to be in the area you are in
- Ask yourself: Can others also witness what is happening? Has the officer consented to being recorded? If the answer to either question is yes, you can proceed to record with caution. If the answer to both is no, the law is less clear. (For example, you might be on a public road, but no one else is around. You still have the right to record, but the wrong officer on the wrong day may try to make this a problem for you).
- For extra caution you can:
- Announce to the police that you are recording what is happening.
- Maintain a reasonable distance away from the activity you are recording.
- Don’t interfere with police actions while recording.
ACLU & Organizations Push to Overturn Ruling Against Filming Police Officers
Florida isn’t losing a constitutional right without a fight.
“Journalism organizations and civil rights groups are joining forces to overturn a West Palm Beach appeals court decision that they claim could block the press and the public from videotaping police,” writes The Palm Beach Post.
It’s a profoundly disturbing decision and contrary to a long line of federal court rulings,” said American Civil Liberties Union attorney Jim Green. He’s representing a number of groups, including the National Press Photographers Association, the Florida Justice Institute and the Society of Professional Journalists.
The justified fear of the ruling is that it is so broad and dangerous that it could even allow police to stop news organizations from filming police on public streets.
The main argument points from the 10+ organizations filing court documents in support of Tasha Ford and against the decision are:
- Ordinary citizens have a First Amendment right to record police officers who are doing their jobs in public places;
- Recording of law enforcement activity is a critical tool for police accountability and transparency;
- Rude speech from Ford did not interfere with the police, as they alleged.
Let’s also point out that police don’t even inherently have the “right” to have you answer questions or to submit to questioning without a lawyer present. We have Miranda Rights, which give us the right to remain silent when police ask questions. Ford’s son didn’t even have to talk to the police at all - he could have merely said something such as “I’m not talking about my day,” or “I’m asserting my right to remain silent,” or “I’m not answering any questions without an attorney present.” To claim that Tasha Ford was ‘obstructing’ a police investigation also assumes that her son had foregone his right to remain silent.
Arrested in South Florida for Filming Police?
We can help. If you’ve been arrested in South Florida for any crime or criminal allegation related to filming police officers, give us a call. We are a team of award-winning criminal defense attorneys in South Florida with more than 500 5-star reviews online.