Is it Legal to Record the Police in SC?

Is it legal to record the police in SC? Officer Friendly says the man was reaching into his pocket just before Friendly opened fire and killed him…

A few decades ago, that would have been the end of the story. We suspect it may not have happened that way, but where’s the proof? Officer Friendly’s fellow officers back up Friendly’s statement – absolutely, he was reaching into his pocket and he was acting aggressively…

Friendly’s supervisors and the Chief of Police back up their colleague – it was an unfortunate incident, but Officer Friendly followed policy and procedure. Also, the deceased had a criminal record…

Except, today, many police encounters are captured on video. It may be the police officer’s dashcam or bodycam video, or, when the officer’s video was conveniently turned off or disabled, it may be a citizen video taken by a bystander.

Is it okay to record the police? Is it legal to record the police in SC? What are the risks that you take when you decide to record a police encounter, and what can you do if police retaliate against you?

When is it Legal to Record the Police in SC?

In SC, and under federal law, it is legal to record any conversation that you are a party to – including conversations with police officers.

That doesn’t mean it is a good idea, though. Most police do not like being recorded. I mean, if you’ve got nothing to hide… wait, that must only apply to people the police want to search on the roadside.

If you choose to record police, hopefully, they will leave you alone and go about their jobs ethically and competently, knowing that any missteps will likely find their way into YouTube, Facebook, and a courtroom.

On the other hand, especially if they are engaging in misconduct or heavy-handed tactics, they might attempt to take your recording device, erase your recordings, assault you, or even arrest you.

What Can I Be Charged with if I Record the Police in SC?

They could attempt to charge you under SC’s wiretap laws, but they are more likely to find another charge to stick you with.

For example, public disorderly conduct is the go-to charge for police officers who feel that they are being disrespected – we call it “contempt of cop.” Especially if you engage in an argument with the officer or use profanity, they might see an opening to put cuffs on you and punish you for challenging their authority.

Do not argue with police – if you choose to record them, do so respectfully, politely, and from a safe distance. If a police officer demands that you stop recording and you know they are wrong, politely decline without engaging the officer in an argument. The incident will be recorded, after all, and the last thing you want a jury to see is you being belligerent, yelling at the police officer, or cursing…

Interfering with police is another offense police may try to lay on you. Are you interfering with the police? If you are not harassing them, if you are following any lawful orders, and if you keep a safe distance from the police, you are probably not interfering with police, and your conduct is protected by the First Amendment.

Refusal to obey a lawful order is another potential charge in some jurisdictions. If you are in a police officer’s face as he or she is attempting to arrest someone, and they tell you to get back, that is probably a lawful order that you need to obey.

On the other hand, if you are recording police activity from a safe distance and a police officer orders you to stop recording, that may not be a lawful order. Any command from a police officer that would violate your constitutional rights is not a lawful order.

Resisting arrest or even assaulting an officer are charges that police often “tack on” after making an unlawful arrest. They might claim that you pulled away as they were attempting to arrest you, or that you injured them somehow during your arrest.

Was it a lawful arrest in the first place? You have the right to resist an unlawful arrest, even to the point of using deadly force, but don’t try it. If you are being placed under arrest, resisting is not going to make your situation better – say nothing, fight the bogus charge, and then file suit if appropriate. But do not give them any reason to charge you with a valid offense.

When is it Not Legal to Record the Police in SC?

If you are legitimately interfering with an investigation or police activity, you are breaking the law. The courts have found that you have a right to record police activity, but there are reasonable restrictions on your right to record – including maintaining a safe distance and obeying any lawful orders.

Can I Record the Police in SC if I am Not Party to the Conversation?

If you are talking to a police officer, or they are talking to you, you are not violating SC’s wiretap laws by recording them, even if they are unaware that you are recording.

If you are standing at a distance while recording police activity and audio is not being recorded, you are also not violating SC’s wiretap laws.

If you are not a party to the conversations police are having but you are still recording audio, then, technically, you are violating SC’s wiretap laws. But your conduct is protected by the First Amendment – police activity is a matter of public interest and you have the right to record and publish what you see and hear.

This should apply any time police officers are making an arrest or taking action in the community – on the other hand, if you are just hanging around, eavesdropping on police officers and recording their private conversations that may be different…

How Do I Record the Police in SC?

You can just pull out your cell phone and start recording, or you can surreptitiously record officers who are talking to you with a recording device in your pocket. There are also many apps that are now available that will help you to record police encounters surreptitiously and many will even upload the video to a server so police cannot find and delete the footage.

Does the First Amendment Protect Recording of Police?

The First Circuit Court of Appeals held in Glik v. Cunniffe, that private citizens have a First Amendment right to record police officers who are carrying out their duties in a public place, and that an arrest for violation of wiretap statutes violates the citizens First and Fourth Amendment rights.

In Smith v. City of Cumming, the Eleventh Circuit Court of Appeals held that the First Amendment protects the right of citizens to film the police.

In Fordyce v. City of Seattle, the Ninth Circuit Court of Appeals held that the First Amendment protects the right to “film matters of public interest,” and that a private citizen could film police conduct in a public place.

Similarly, the Seventh Circuit Court of Appeals has enjoined police from applying the wiretap laws to target citizens who are recording “when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events.”

When police in Massachusetts tried to “get around” previous court opinions by only arresting people who were secretly recording police, a federal court issued an injunction prohibiting police from making arrests under Massachusetts’ wiretap laws for recording police and found that the wiretap statute was unconstitutional “insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions.”

The Fourth Circuit in Szymecki v. Houck and the Fifth Circuit in Turner v Driver held that, although there is a First Amendment right to record police conduct, the officers were entitled to “qualified immunity” because the right to record police was not “clearly established.”

If it was not clearly established then, it certainly is now.

Criminal Defense and First Amendment Lawyer in Charleston, SC

If you are arrested, retaliated against, or your recording equipment is taken from you solely for exercising your First Amendment right to record police activity, get in touch with my office immediately to find out if you have a civil rights lawsuit.

If you were charged with a criminal offense, you must get the case dismissed or you must be acquitted before you can take any civil action against the officers or their department. Call now at (843) 808-2100 or send an email to schedule a free consultation.