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

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.