The First Amendment gives the public the right to record the police carrying out their official duties in a public place.

Every federal court of appeals has upheld this right, despite numerous violations that have spiraled into lawsuits. As of 2023, the U.S. Court of Appeals for the Fourth Circuit is the most recent court to protect this right, backed up by the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits.

The First Amendment

Generally speaking, the First Amendment to the U.S. Constitution protects religious liberty and rights related to freedom of speech.

However, some confusion exists over what that exactly means. Free speech is only protected up until the point it crosses the line into violence and destruction, at which point the government is free to intervene and punish people involved.

The First Amendment also does not prevent individuals, companies, and employers from restricting free speech–it applies only to the government.

The Right to Record

To date, the U.S. Supreme Court has not presided over a case that establishes a right to film government officials carrying out their duties.

However, the Supreme Court does recognize that public interest is best served by allowing a “free flow of information to the people concerning public officials.” This isn’t the first time the federal government has recognized the need for transparency.

The Freedom of Information Act allows private individuals to access public records and gives them access to documents relating to lawsuits, civil records, and criminal records.

Because filming can be seen as a method of speech or a precursor to speech, the First Amendment gives people the right to record police interactions. As more and more videos of law enforcement officials go viral, people are increasingly likely to reach for their cameras and start recording in an effort to protect their rights.

Qualified Immunity

In the case of Sharpe v. Winterville Police Department, Dijon Sharpe recorded and livestreamed a police encounter from the passenger seat. Although the police agreed that Sharpe had the right to record them, they did not believe that the First Amendment extended that same protection to livestreaming, and attempted to seize his device and threatened him with arrest.

The Fourth Circuit determined that the First Amendment protects Sharpe’s right to livestream a police traffic stop. However, Sharpe’s case ran into the issue of qualified immunity, which protects state and local officials from individual liability unless they violate a clearly established constitutional right.

The History of Qualified Immunity

In 1871, Congress made government employees and officials liable for money damages if they were found to have violated an individual’s federal constitutional rights. This also potentially allowed people to sue state and local police officers, though ultimately few lawsuits were successfully brought.

By 1967, the Supreme Court accepted qualified immunity as a defense against these claims. For qualified immunity to apply, the law or right that a government official violates cannot be “clearly established.”

How Qualified Immunity Works

Qualified immunity tends to favor state and local governments. In order for an incident to meet the definition of “clearly established,” the law must have been clear enough that everyone involved understood that they were doing something unconstitutional.

In the case of Sharpe v. Winterville Police Department, the police informed Sharpe that he was free to record the traffic stop but not broadcast it.

Although the Fourth Circuit ruled that the First Amendment gave Sharpe the right to livestream the police encounter, it also argued that the police officers may not have been aware that preventing him from broadcasting violated his rights. Therefore, the officers were protected by qualified immunity and could not be held personally liable.

The Advantages and Disadvantages of Qualified Immunity

Qualified immunity has both supporters and critics.

Supporters maintain that qualified immunity:

• Protects officers and public officials to carry out their duties without hesitation
• Prevents government officials from being opened up to unwarranted lawsuits
• Does not require officers to become legal scholars or carry out legal arguments
• Recognizes that officers make errors in judgment and protects them from financial repercussion

Critics, however, have argued that qualified immunity:

• Prevents officers from being held liable for usage of excessive force or violating other Constitutional rights of citizens
• Is not necessary, since many municipalities indemnify their officers and protect them financially
• Relies on a needlessly specific definition of “clearly established” for plaintiffs to establish
• Is applied inconsistently and at the discretion of the judges involved

Currently, the debate around qualified immunity has not yet been resolved. Congress has pushed forward legislation intended to end qualified immunity, while the Supreme Court justices have endorsed revising it.

Colorado State Law

Colorado has limited the use of qualified immunity as a defense, making them the first state to impose restrictions. This law also limits what the Colorado Governmental Immunity Act can apply to.

In Colorado, successful plaintiffs are now entitled to attorney fees. The state also requires the jurisdiction of the officer to indemnify them, protecting public officials from the financial burden of a lawsuit.

However, if the court determines that the law enforcement official did not act in good faith and knew they were violating someone’s rights, the officer becomes personally responsible for 5 percent of the judgment or $25,000, whichever is less.

Know Your Rights

People generally seek to record police encounters in order to protect themselves. Being stopped by the police is always a stressful event, and knowing your rights can help you remain safe.

You have the right to remain silent. Remember to state this verbally. While some states allow the police to require you to give them your name, they cannot ask about: Immigration status, your destination, your trip origins, or the purpose of your activity.

Ask if you’re free to go. Regardless of their answer, stay calm.

Although the First Amendment gives you the right to record the police, officers in the past have insisted that people delete recordings. If this happens to you, it may be in your interest to comply and include this in a police misconduct claim.

If you feel that your rights have been violated, remain non-confrontational and do not escalate the situation. You can ask them their badge numbers and names, and write down the details as soon as possible in order to file a police misconduct claim later.