1. Copyright © 2015 Meredith Wharton 1
The Ethical Issue Revolving Around the Debate Over Filming Police
Meredith Wharton
High Point University

2. Copyright © 2015 Meredith Wharton 2
Introduction
As police involved deaths have become an issue of large concern in our country,
the debate on whether or not to film the police is a hot topic on the rise. News coverage
and public scrutiny are at an all time-high due to a barrage of officer- involved shootings
and killings around the country, several states are scrambling to define the legality of
filming police officers in public places (Cahill, 2015). Colorado and California are two
states that have just introduced bills protecting citizens who film police officers in public
from harassment or confiscation of their devices without a warrant. In fact, many high-
profile police officers have been filmed and in some cases journalists and individuals
were arrested or had their cell phones confiscated by the police officers they were filming
(Cahill, 2015). Senate Bill 411, introduced in February, would amend the states’ penal
code. Supporters say it protects the First Amendment and clarifies that filming alone does
not give police officers probable cause to search or confiscate the individual’s property
(Cahill, 2015). California Sate Senator Ricardo Lara, D-Bell Gardens said, “Recent
events throughout the country and here in California have raised questions about when an
individual can-and can’t record. SB 411 will help erase ambiguity, enhance transparency,
and ensure that freedom of speech if protected for both civilians and police officers”
(Cahill, 2015, p.1 ).
The debate over filming police is a significant issue. This issue is important
because of two competing sides; one being against filming, the other, in favor of filming.
The police say filming them interferes with their work. Protestors say filming is
necessary to keep a check on the police. The rights of the civilians and the rights of the
police officers are equally important. The ethical issue here is making sure every citizen

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of the United States has equal protection under the First Amendment. The First
Amendment dimension to this issue is protecting people’s rights. The First Amendment
protects the right to record audio and video regardless of whether the police gives
consent. This constitutional right would override the state or federal laws that would
otherwise prohibit such recording (“As discussed in other areas of this guide,” n.d.).
The purpose of this paper will be to explore the ethical and legal aspects of the
debate over filming police. The first section will examine what legal scholars have said
about this issue. The next section will describe the various arguments for and against
filming police. The paper will conclude with observations and recommendations about
how this issue should be resolved in the future.
Literature Review
In the media today, the issue over filming police has become a matter of public
interest. Legal scholars have been known to scrutinize and analyze the states’ decisions
and the ways in which the choices are made. In any large public interest issue, criticisms
and opinions are formed.
Some scholars have the mind set that the courts should evolve with the times and
conform to what the majority of society feels is right. Steven A. Lautt has written a case
for a First Amendment right to record the police. In his paper, Lautt backs up his
position that “instances of abuse and corruption will be minimized if those in power are
required to operate transparently, in the light of day” (Lautt ,2012, p.350). Lautt backs up
this claim by stating, “ to receive second hand information, even from a trusted, reliable
source, may still raise doubts about the authenticity of what has been reported. But to
actually see something with our own eyes not only removes those lingering doubts, but

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also provides us with the joy, sadness, amazement, or outrage that can only come from
seeing it for ourselves. Thanks to the marvels of modern technology, people can now see
with their own eyes the events that our shaping the world”(Lautt,2012, p.349). He speaks
the plain truth, without seeing there is no believing. In depth, Lautt discusses the
importance of using “video footage as a powerful tool for exposing abuse of authority to
a wider audience and holding those in power accountable for their actions” (Lautt,2012,
p.350). Lautts gives in detail evidence proving that a “citizen- recording of police
activity is a protected right under the First Amendment of the U.S Constitution and that it
is vital to implement policies preserving that right” (Lautt ,2012, p.351).
Lautts showcases the fact that “although many facets of government in the
United States have adapted to comply with public expectations of openness and
transparency, law enforcement institutions have traditionally lacked this cleansing form
of public scrutiny. However, the wide use of camera phones and the Internet has
dramatically increased public visibility of the police in recent years. And in many cases
the public has not liked what it has seen. The phenomenon of citizen-conducted video
surveillance of police officers has revealed a startling pattern of behavior by some of
those sworn to serve and protect, ranging from troubling to downright criminal. The wide
publication of these videos has sparked public outrage and renewed calls for police
reform. Without the potent impact of citizen conducted surveillance, it is unlikely that
theses injustices would have ever been brought to light” (Lautt ,2012, p.351). By bringing
up the issue of how some branches of government shy away from the public eye, he
supports his information by giving evidence of the police trying to suppress video
monitoring. Lautts discusses the First Amendment Issue aspect of this and cites a case.

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The issue of a First Amendment right to record, pertaining specifically to public-police
recording was addressed in the Eleventh Circuit case of Smith v. City of Cumming.
Smith suspected that local police officers were harassing members of the public by
making improper vehicle stops, so he began following officers and filming these stops.
Smith claimed that officers warned that they would arrest him if he did not stop his
recording activities, but the city disputed that claim. Although Smith was never arrested,
he commenced a 1983 action against the City, claiming that the officers prevented him
from recording the police in violation of his First Amendment rights. The eleventh circuit
agreed that Smith has a ‘First Amendment right, subject to reasonable time manner and
place restrictions, to photograph, or videotape police conduct’ the court stated further that
‘The First Amendment protects the right to gather information about what public officials
do on public property, and specifically, a right to record matters of public interest’
“(Lautt ,2012, p.368).
Arguments Against Filming
There are always two sides to a debate. I will showcase what the arguments are
against filming in this section. As a “leading reason for their opposition to citizen-
surveillance police advocates have cited the concern that officers will hesitate in life
threatening situations for fear of their actions being caught on video” (Lautt ,2012, p..
355). In the article Americans have First Amendment right to film police, US court Rules
it discusses a case where, Carla Gericke was arrested for video taping members of the
Weare Police Department who pulled over her friend during a traffic stop. Gericke was
arrested for disobeying a police officer, obstructing a government official and ‘unlawful
interception of oral communications. Although she was never brought to trial, Gericke

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sued the Town of Weare, its police department and the officers who arrested and charger
her. The police officers argued that they should be immune from the lawsuit. The case
was sent to trail and lawsuit was to proceed. This decision came from “a flurry of court
cases involving citizens attempting to express their First Amendment rights by filming
their encounters with law enforcement officers, many of whom say the recordings
interfere with their work, to say nothing of the possibility that a camera may be mistaken
for a weapon” (A federal appeals court has ruled, 2014, p.1). Another argument against
recording, not only do they feel it interferes with their work, but they also feel it can put
them in life threatening situation and be put into a situation where they might mistake a
gun for a video camera or vice versa.
While researching arguments I found a Case Western Reserve University Case
Western Reserve Law Review. The law review discusses “What is and what should never
be: Examining the artificial circuit “split” on citizens recording official police action”
(Frohman, 2014, p.1). The review cites an argument regarding today’s modern
technology, smart phones, and wiretapping laws. The review states that “the propagation
of smartphones with ever-greater audiovisual capabilities represents simply the latest
phase in the evolution of electronic media, but some wary police and overzealous
prosecutors have attempted to suppress citizens recording of public police activity using
wiretapping laws” (Frohman, 2014, p 2). Wiretapping statutes ensure the officers privacy
by requiring consent of one or from all the people involved in the conversation.
Wiretapping also came up in the article Posner Ridicules Rights of Citizens To Film
Police in Seventh Circuit Oral Argument. Simon Glik, a lawyer who was arrested for
filming officers in what he thought was an excessive use of force was charged with “with

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violation of the wiretap statute, Mass. Gen. Laws ch. 272, § 99(C)(1), disturbing the
peace, id. ch. 272, § 53(b), and aiding in the escape of a prisoner”(Turley, 2011, p.1)
The police have used other laws to match a long side their arguments to not be
filmed. They sate that is violates laws such as “broad crimes like obstruction of justice,
disorderly conduct, harassment, loitering, and trespassing will become the new preferred
tool for police who wish to shield themselves from being filmed” (Frohman, 2014, p 6).
The law review gives arguments based from the law and proved by the law.
The final argument is one of the most “prevalent concern[s] for police officers is
the risk video monitoring poses to the substantial deference courts giver officers in their
official recounting of facts. Police reports and testimony are typically key components in
the prosecution of suspected criminals, and officers are often under institutional pressure
to furnish evidence sufficient to ensure a conviction” (Lautt ,2012, p. 355). The pressure
to make convictions puts this argument in a whole other light.
Arguments in Favor of Filming
With every argument there are two sides. After explaining arguments in favor of
being against filming the police I will now discuss arguments in favor of filming the
police. The main argument in favor of filming the police is that if you are punished for
doing so that is a violation of your First Amendment rights.
Starting off I will show an example of two cases in which they use the 1st
Amendment as the basis for their argument. In the law review, Before You Press Record:
Unanswered Questions Surrounding the First Amendment Right To Film Public Police
activity, it discusses the First Amendment. “After a wave of high profile arrests of
smartphone-toting citizens whose only crime was recording the police officers in the

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exercise of their public duties, constitutional challenges to state wiretapping laws that
prohibit such activity has reached two circuits of appeals. In 2011 the U.S Court of
Appeals for the First Circuit issued its opinion in Glik v. Cunniffe, holding that not only
did the First Amendment right to record police exist, but, despite a paucity of case law,
this right was so ‘self evident’ to be considered of longstanding vintage. In 2012, the U.S
Court of Appeals for the Seventh Circuit followed suit in Alvarez v. ACLU. Like for the
First Circuit, the Seventh Circuit, located to the right to record police within the compass
of the First Amendment protection of the inextricably related constellation of rights to
gather, disseminate, and receive information of public important” (Alderman, 2013,p.
487). Alderman believes that it is our human right to be able to receive information of
public importance and not be kept in the dark.
Another argument stating that it is a violation of our First Amendment right
comes from the article Supreme Court upholds right to film police, even in Illinois. The
state of Illinois has some of the strictest “eavesdropping” laws, and the statutes that are
often abused to prosecute those for filming the police and it has been recorded in
numerous cases. Recently “a fresh supreme court decision has declared this to be a
violation of the First Amendment, refusing to hear an appeal from the Cook County
officials to allow prosecution of those recording cops” (Dykes, 2012,p.1).
In the last month, Colorado and California lawmakers have introduced bills
defending their citizens who film police officers in public from annoyance or confiscation
of their devices by police without a warrant. They have introduced Senate Bill 311 which
protected their First Amendment rights. Legislative Representative, Larry Boyle, says
“Recordings of law enforcement activity benefit victims and innocent police officers by

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creating clear and evidentiary accounts of what took place”(Cahill, 2015,p.1). In the
article Filming the Watchmen: Why the First Amendment Protects Your Right to Film the
Police in Public Places Even Bernick and Paul Larkin discuss their arguments in favor of
filming. The “Police are relying on state write tapping statutes to arrest citizens who film
police in public. The federal circuit courts recognize a First Amendment right to film
police and in public places where the citizen-recorder has a right to be present are in line
with Supreme Court precedent. While the exercise to film the police is subject to
reasonable time, place and manner restrictions, police cannot be allowed to suppress
speech at the fore of the First Amendment’s protections. Sate wiretapping statutes that
prevent citizens from filming police officers in such places without any further
justification violate citizens First Amendment rights”( Bernick, Larkin,2014,p.1).
Another argument in favor of filming the police comes from the Law Journal,
Sunlight is Still the Best Disenfectant: The Case for a First Amendment Right to Record
the Police, by Steven A. Lautt. He discusses the negative implications of police
corruption, such as arresting citizens for filming, and how they are destroying their
relationship with the community by making themselves seem an enemy rather than an
ally “Instances of police corruption and misconduct shatter public trust and confidence in
law enforcement institutions. As a community’s trust of the police diminishes, so too
does the communities willingness to engage and cooperate with law enforcement. The
mistrust engenders a culture of skepticism and cynicism towards the exercise of police
authority. The continued legitimacy and effectiveness of a police force therefore depends
heavily on its ability to project a positive image throughout the community it
serves”(Lautt,2012,p.352). Lautt’s argument focuses on the positive image that the police

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need to uphold in the community and that by arresting the citizens for recording them is
tarnishing that respect and positive image and turning it negative.
Conclusion
Throughout this research paper I have discussed different arguments
coming from a variety of different sources but all focusing on the ethical issue of
filming police. I will now discuss my personal arguments and opinions on this topic.
I believe that people have the First Amendment right to record and film the
police. I think there are some police officers that want to limit the amount of their
actions that is recorded. This could be because of his or her own personal
incompetence or they might be trying to be corrupt or just simply pull a quick one
on an innocent civilian. What ever their excuse may be, as American citizens I
believe we have the right of to perform our own “checks and balances” on the
government officials paid with our tax dollar. Allowing a full openness when it
comes to public arrest or situations, especially if they are criminal, can help bring a
more honest, fair, and just judicial system to the people of this great nation. I stand
by the argument that we as the people have the right to record and film the police
and believe that if we are denied this right I believe that we deserve to fight and
receive justice on our behalf. I also believe that if we are awarded this right, as we
should be, that society and police officials will begin to build a healthy relationship.
If mutual respect is given to both the civilians and to the public officials then the
world can try to peacefully coexist.

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References
Americans have First Amendment right to film police, US appeals court rules. (n.d.).
Retrieved April 16, 2015, from http://rt.com/usa/162272-police-film-appeals-court/
Before You Press Record: Unanswered Questions Surrounding the First Amendment
Right to Film Public Police Activity. (n.d.). Retrieved April 16, 2015, from
http://www.niu.edu/law/organizations/law_review/pdfs/full_issues/33_3/Alderman 1.pdf
Bernick, E., & Larkin, P. (2014). Filming the Watchmen: Why the First Amendment
Protects Your Right to Film the Police in Public Places. 1-10.
Gregory, F. (2014). Copyright (c) 2014 Case Western Reserve University Case Western
Reserve Law Review. 1-60.
Lautt, S. (2012). Sunlight is Still the Best Disinfectant: The Case for a First Amendment
Right to Record the Police. 51, 349-381.
Posner Ridicules Right of Citizens To Film Police in Seventh Circuit Oral Argument.
(2011, September 19). Retrieved April 16, 2015, from
http://jonathanturley.org/2011/09/19/posner-ridicules-right-of-citizens-to-film-police-in-
seventh-circuit-oral-argument/
Recording Police Officers and Public Officials. (n.d.). Retrieved April 16, 2015, from
http://www.dmlp.org/legal-guide/recording-police-officers-and-public-officials
Supreme Court Upholds Right to Film Police, Even in Illinois. (n.d.). Retrieved April 16,
2015, from http://www.infowars.com/supreme-court-upholds-right-to-film-police-even-
in-illinois/