When Can’t You Record the Police? A Guide to the Stop and Frisk App

| June 8, 2012 4:00 AM video

The interface of the NYCLU's new stop and frisk app. Image courtesy of the NYCLU.

On Wednesday, the New York Civil Liberties Union launched a free app that allows Android users to record and report the police. Other app users in their vicinity can listen to the recordings in real-time. In July, the NYCLU plans to release a version of the app for the iPhone. MetroFocus created this short guide to recording the police so you can better understand when you are and aren’t protected by the First Amendment, how to respond to officers who ask you to stop recording and what to do if you are arrested while recording a stop and frisk.

In 2011, the NYPD set a new record in its use of the tactic: 684,330 people were stopped and frisked, 86 percent of whom were black or Latino. Given that a Pew Research study found that 49 percent of cellphone users have smart phones, and 39 percent of 18-29 year-olds making under $30,000 annually have a smart phone, the stop and frisk app could become a powerful tool for critics of stop and frisk.  After all, in terms of reforms in policing,  it was a video recording of the Rodney King beating that lead to reforms in the LAPD.

In the past year, the U.S. Justice Department and federal courts have made it clear that the First Amendment protects citizens’ right to record the police in a public space, and prevents the police from destroying footage. However, there is some wiggle room within federal and state laws. Citizen journalists have continued to be arrested, resulting in various outcomes in court. The bottom line is that it’s within the realm of possibility that some stop and frisk app users may be arrested while recording others who are being stop and frisked. Those arrests will likely lead to significant court cases that further negotiate and define the role and limits of new technology as a tool against police misconduct.

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The NYCLU released its stop and frisk app for the Android on Wednesday. A version for the iPhone is planned for release in July. Video courtesy of the NYCLU.

What you can do

In May, the Justice Department issued a statement declaring citizens are protected under the First Amendment when recording police activity in a public space, and destruction of citizens’ recording devices is a violation of Constitutional rights.

That statement came on the heels of a U.S. Court of Appeals decision in the case of Glik vs. Cunniffe, which resulted from a Boston man’s 2007 arrest after he filmed three police officers arresting a suspect. In the ruling, which found police had violated Glik’s First Amendment rights, the judge stated, ”Is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.” In April, 2012, the City of Boston agreed to pay Glik $170,000 in damages and legal fees. The ruling in Glik vs. Cunniffe is only applicable in Massachusetts and a few other states, but in the past year it’s been cited extensively across the country, because many states have complicated wiretapping laws that require the consent of those being recorded.

Fortunately for civil liberties advocates, New York is not one of those states. More on that in a moment.

In a public space, you are always allowed to record the police in New York, and police cannot demand to see your footage, unless you are “interfering with law enforcement operations,” according to the ACLU. This where a legal grey area emerges.

What you can’t do

Interfere with police work – This is open to some debate, and police departments have attempted to use this clause to justify arrests of videographers in recent years, but in most cases those charges have been thrown out. According to the libertarian magazine, Reason, the rule of thumb is to stand back a distance — probably at least 10 feet — where accidental physical contact with police or suspects is unlikely. The NYCLU sent the following statement to MetroFocus: “We encourage anyone who has any issues with filming the police to contact us. The Department should be familiar with the First Amendment – in our society, people have a clear right to document police activity in public places. This right is especially important when it comes to documenting police interactions with innocent community members. The NYPD tells New Yorkers that if they see something, say something, and the NYCLU agrees. If people see police misconduct or an inappropriate stop and frisk, we want them to have the tools to say something about it.”

Civil rights attorney Alan Levine said he wasn’t aware of any cases in New York City in which someone had been arrested for recording a stop and frisk and not had their charges dismissed. He added, “It’s common sense, filming is legal and interference is not.”

Violate state wiretapping laws – In Boston, Simon Glik was arrested on wiretapping charges for videotaping the police from a distance of 10 feet. The federal justice system has concluded Glik’s actions didn’t constitute illegal wiretapping. However, if he would have been doing the recording without the officers’ knowledge, it could have constituted wiretapping.

In New York, recording a conversation is legal as long as one party consents to the recording. However, you’re allowed to record both parties without either party’s consent, as long as one of those parties is a police official in a public space.

    What you should and shouldn’t do

    Before the app was released, NYPD officers were commenting on it in the New York Post. One officer said, “Just what we need, somebody telling kids stopped by the police to quickly pull a handheld advice out of their pocket.”

    The NYCLU shot back that the app is for people observing stop and frisks, not those being stopped. Nevertheless, it’s not a reasonable criticism. From the shootings of Amadou Diallo and Sean Bell to the killing of teenager Ramarley Graham this February, the NYPD has a history of pulling the trigger on unarmed people, particularly minorities, who pull things out of their pockets during heated situations. Technology activist and filmmaker Justin Holmes told Reason that people should maintain eye contact with police and avoid acting in an aggressive manner when pulling objects from their pockets during a tense encounter.

    According to the ACLU, when police officers ask people to stop recording them, in many cases people will agree. In the case that the person recording doesn’t submit the the request, advocates advise to respond politely and insist on the right to record, but as Reason Magazine noted, they should be prepared to be arrested.

    What to do if you’re arrested

    Police officers are human beings, and in high pressure, have illegally arrested citizens who were documenting them at work. In 2011, it happened on Long Island and the charges were thrown out, and the arrested videographer sued the police.

    While there are no major reports of NYPD officers arresting people for recording stop and frisks, in recent years videographers and photographers have been arrested on charges of disorderly conduct and obstruction of governmental administration (that’s the interfering with police work charge). There have been multiple allegations that officers targeted videographers and photographers during the Occupy protests and credentialed journalists have been arrested while on the job. In 2011, activist Jazz Hayden alleged that he was frisked and arrested on weapons charges for possession of a penknife as retaliation for recording stop and frisks in Harlem.

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    In 2011, photojournalist Phil Datz was arrested and charged with charged with obstruction of governmental administration when he attempted to film Suffolk County police arresting a suspect after a vehicle chase. Charges against Datz were dropped, and the journalist later sued the police department for false arrest. Youtube/stringertv.

    The extent of civil liberties in the realm of new technology generally plays out in court, and the NYCLU recommends anyone arrested while recording the police contact them immediately. It would also be prudent not to say anything hostile or incriminating while recording.

    Other concerns

    The use of handheld recording devices has had a powerful impact in recent years, including the firing of an NYPD officer who tackled a moving cyclist during a 2008 Critical Mass ride, and the dropping of charges against Jateik Reed, the teenager whose assault by police officers in the Bronx was documented and put on Youtube.

    Just as the NYPD’s massive proliferation of surveillance cameras since 9/11 and surveillance operations on Muslim communities has deeply alarmed civil liberties advocates, should they also be concerned that recording people being frisked could violate the civil liberties of those being arrested?

    Before the stop and frisk app came out, NYPD spokesman Paul J. Browne told the Post, ““Surprising that the NYCLU wants to create a database of police stops, including arrests, without privacy guarantees.”

    Given the NYPD’s recent decision to subpoena Occupy protesters’ Tweets, that is a serious concern.

    The app’s developer told Gothamist that anonymously submitted data from the app will not be able to be tracked. But anonymity is an option for app users, and the agreement that users sign when downloading the app warns that the NYCLU may be legally required to disclose personal information to the police, but that the NYCLU will do everything in its power to prevent disclosure of such information.

    • http://www.facebook.com/people/James-Allen/100000883155956 James Allen

      And here I was under the impression that  First Amendment was only a prohibition on Congress making laws that made certain publication or speech of govt affairs a libel.

      • http://www.facebook.com/profile.php?id=617112335 Jonathan Jeffer

        You were under a wrong impression.  The Bill of Rights extends to all governments, state and local as well.   ”protections of the Bill of Rights eventually would be extended to state infringements as well federal infringements though the “doctrine of incorporation” beginning in the early to mid-1900s.  The doctrine rests on interpreting the Due Process Clause of the Fourteenth Amendment as prohibiting states from infringing on the most fundamental liberties of its citizens”

        • General_Jackson

           If that was the case there was no purpose in trying to amend the constitution to make the Establishment Clause a limitation on the states starting in 1871.

          • ANONYMOUS

            YOU WOULD NOT HAVE TO WORRY ABOUT YOUR BILL OF RIGHTS BEING VIOLATED IF THE STUPID AMERICAN PEOPLE SIMPLY VOTED TO GET RID OF ALL POLICE AND COPS IN USA INCLUDING FORCE ALL COUNTRIES TO GET RID OF THEIR COPS & POLICE TO MAKE SURE THEIR RIGHTS WERE ALSO PROTECTED AS OUR RIGHTS WOULD BE PROTECTED IF THERE WERE NO COPS AND POLICE ARE WORSE THAN CRIMINALS AND MORE DANGEROUS THAN CRIMINALS: FOR THE AVERAGE PERSON WOULD HAVE BETTER CHANCES OF SURVIVING A CONFRONTATION WITH CRIMINAL THAN WITH A COP/POLICE HAVE TOO MUCH POWER IS WHY THEY ALMOST ALL OF THEM ALMOST ALL COPS & POLICE IN USA INCLUDING IN EACH & EVERY COUNTRY POLICE/COPS ACT LIKE PSYCHOPATHS !!!!! LIKE IN THE SCI-FI MOVIE SAW: COPS/POLICE ARE MORE [ !!! ] DANGEROUS THAN ANY CRIMINALS, ARE LESS OF A THREAT THAN ANY COP/POLICE, R THE REAL THREAT TO SOCIETY & THREAT TO ALL SOCIETIES, INCLUDING MILITARY IS NO GOOD SINCE THEY DO NOT UPHOLD COMMON SENSE CONTRADICT ALMOST ALL LAWS MADE BY GOVERNMENTS CONTRADICT COMMON SENSE CONTRADICT ALMOST ALL LAWS ARE IMMORAL !!!!! BECAUSE ALMOST ALL LAWS & RELIGIONS ARE BASED ON FEMINISM, IS DEVIL’S WORK: YOU R NOT WORSHIPPING GOD BUT THE DEVIL, WHEN YOU OBEY GOVERNMENTS IS BASED ON FAKE LAWS BASED ON FEMINISM, IS AGAINST GOD’S LAWS, IS WHY NEVER OBEY ANY ESTABLISHED RELIGION NOR OBEY ANY ESTABLISHED LAWS: ALL OF WHICH IS BASED ON FEMINISM, IS FAKE LAWS BY FAKE PROPHETS, JUST AS ALMOST ALL COPS & POLICE ARE NOT REAL COPS & POLICE, BUT THUGS IN FAKE GOVERNMENT UNIFORM THAT WORK FOR MAFIA CALLED ILLUMINATI ALSO CONTROL ALL BRANCHES OF GOVERNMENT OF USA AND ALSO CONTROL ALL BRANCHES OF GOVERNMENT IN EACH & EVERY COUNTRY IS HOW CUNNING ZIONISTS ARE AND IT WAS THE ZIONISTS THAT KILLED OFF THE JEWS ARE NOT ZIONISTS R THE EVIL TWIN OF JEWS R GOOD WHILE THE ZIONISTS R THE EVIL TWIN OF JEWS: IS THE DIFFERENCE & MOST PEOPLE DO NOT KNOW THE DIFFERENCE BETWEEN THE TWO: TO UNDERSTAND THAT IS TO FIRST UNDERSTAND HOW BI-POLAR PERSONALITIES WORK IN BI-POLAR PEOPLE HAVE 2 PERSONALITIES WITHIN THEM GOOD AND EVIL: IS THE SAME WITH JEWS AND ZIONISTS, LATTER, ZIONISTS R EVIL JEWS, WHILE JEWS ARE GOOD JEWS: THE DIFFERENCE AND THE ZIONISTS THE EVIL JEWS R CUNNING SO CUNNING THAT BY THE TIME PERSON FIGURE OUT THEIR PLANS IT IS TOO LATE, THAT THE DESTRUCTION HAS ALREADY TAKEN PLACE: ONE SIMPLE EXAMPLE IS THE SUN-ROOF FORCED UPTON VW BEETLE AND ON HONDA CROSS-TOUR CARS THAT ALMOST NONE WANT EXCEPT FOR FEW IDIOTS THAT DO NOT UNDERSTAND THAT IT IS A DANGER TO THEM TO HAVE SUCH A THING ALSO MAL-FUNCTIONS AND BREAKS & PURPOSE BEHIND IS IT RUIN PARTS OF THE AMERICAN CAR INDUSTRY IS JUST ONE WAY ZIONISTS DO IT: THERE ARE DOZEN OTHER WAYS ZIONISTS TRY TO RUIN THE AMERICAN CAR INDUSTRY & IT IS NOT JUST THE AMERICAN CARS AND AMERICAN CAR INDUSTRY BUT DOZENS TO HUNDREDS OF OTHER FACETS OF THE AMERICAN ECONOMY & ONLY ONLY FOR & WITHIN USA, BUT IN EACH & EVERY COUNTRY: THE EVIL ZIONISTS R LIKE THE EVIL GREMLINS: MOST ZIONISTS R EVIL WHILE FEW R GOOD INCLUDING THEY LOOK INNOCENT BUT R EVIL: MOVIES PORTRAY PLANS & PERSONALITY OF THE ZIONISTS BUT THE STUPID AMERICAN PUBLIC DO NOT UNDERSTAND THAT MOVIES ARE FOR THAT PURPOSE IS THAT THEY WARN YOU OF THE COMING DANGER IS THEIR CODE TO WARN THEIR ENEMY OR THEY PREY BEFORE THEY ATTACK THEIR PREY IS THEIR CODE WHICH EVEN ALSO THE PRESIDENTIAL CANDIDATES DO SUCH AS ROMNEY DID THE SAME THING WARN OF OF HIS INTENTIONS AND THE SAME ALSO OBAMA DID WARN BY A LOT MORE SUBTLE METHODS THAT BY DOING NOTHING FOR THE COMMON MAN AND TO ROB THE TREASURY & GIVE ALL THE $ TO RICH BANKERS & THE RICH BANKERS ARE ALL ZIONISTS & ZIONISTS ALSO OWN & CONTROL ALMOST ALL COLLEGES & UNIVERSITIES IS WHY STUDENT LOANS CAN NOT BE DECLARED BANKRUPT BECAUSE ZIONISTS ARE IN CHARGE OF COLLEGES & ALSO UNIVERSITIES ALMOST ALL ARE OWNED & CONTROLLED BY ZIONISTS: PEOPLE NEED TO WAKE UP THAT EVIL KNOWN AS ZIONISTS IS IN CHARGE THAT THEIR GOVERNMENT IS FAKE & THE CONSTITUTION IS FAKE: THEIR BILL OF RIGHTS WERE ORIGINALLY 2 TO 3 DOZEN, REDUCED TO ONE DOZEN SAYS A LOT, THAT THEIR INTENTION WAS TO GIVE NO RIGHTS & LUCKILY SOME RIGHTS MANAGED TO PASS THROUGH AND THEY THE ZIONISTS BEEN TRYING TO GET RID OF LAST 12 OR DOZEN RIGHTS IN THE BILL OF RIGHTS FOR PAST 2 TO 3 CENTURIES: FIRST RIGHT TO DISAPPEAR WAS PROPERTY RIGHTS REPLACED BY PROPERTY TAX: PEOPLE WAKE UP ! IF THE SOLDIERS & POLICE HAD ANY COMMON SENSE THEY WOULD PROBABLY HAVE THEIR BOSS KILLED OFF BUT THE POLICE & SOLDIERS ARE ONLY SLIGHTLY SMARTER THAN THE AVERAGE ANIMAL WITH ALMOST NO COMMON SENSE ! SAME PROBLEM EXIST IN EACH & EVERY COUNTRY: IS WHY NOTHING IS BEING DONE: PEOPLE NEED TO WAK UP AND TO VOTE TO GET RID OF ALL INCOMPETENT POLICE INCLUDING TO GET RID OF ALL INCOMPETENT SOLDIER FROM MILITARY & TO GET RID OF ALL INCOMPETENT GOVERNMENT ZIONIST OFFICIALS & TO BAN & OUTLAW ALL ZIONISTS FROM ANY GOVERNMENT POSITIONS FOR ALL OF ETERNITY: SINCE DNA RARELY EVER CHANGES FROM GENERATION TO THE NEXT IS NOT TO SAY NEVER BUT RARELY IS TOO MUCH OF A RISK !!!

    • http://www.facebook.com/profile.php?id=617112335 Jonathan Jeffer

      Could not the NYCLU charge a nominal fee along with the app in order to invoke arry client privilege, and protect the identity and personal information of the submitters of video?

    • Yes

      Warning: using the Police Tape  app allows ALCU to upload footage of your pPolice interaction to their advantage. The goal of ACLU is not to protect your personal individual liberty; however, it’s to make individuals serve the will and demands of the state. 

      • gidtanner

        WACKO

    • Brian

      Politicians are at the root of all these kinds of issues. They allow the local “executive branch” like the Mayor or Police Commissioner to invent rules an practices that by their very nature conflict with people’s basic rights.

      No one has given local police departments the power to become military organizations using surplus tanks and such but politicians sit by while it all happens. Throw them out and replace them with civil libertarians.

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