Citizens’ Right to Record the Police (Part 1)

This is the first blog post installment in a multi-part series on citizens’ right to record the police.

In May 2020, millions of people watched viral cell phone footage depicting a former Minneapolis police officer sadistically kneeling on an unarmed, fully restrained Black man’s neck for a horrifying nine minutes and twenty-nine seconds, ultimately murdering him. The victim’s name was George Floyd, and his final words, “I can’t breathe,” became the rallying call for weeks of massive protests and an enduring social justice movement fighting against police brutality and systemic racism. Officer Derek Chauvin is currently serving a prison sentence of more than twenty-two years for murdering Mr. Floyd. Seventeen-year-old Darnella Frazier received high praise for courageously capturing Officer Derek Chauvin’s unlawful and brutally excessive use of force on video, even winning a Pulitzer Prize for her recording, and was ultimately a key prosecution witness in Chauvin’s criminal trial. Mr. Floyd’s case vividly illustrates the immense power that video recording the police can have for fomenting police reform and holding law enforcement accountable for wrongdoing.

The right to record the police is protected by the First Amendment.

The First Amendment protects the right to freedom of speech for everyone in the United States, regardless of citizenship status. Speech is not just the words one chooses to say but is also reflected in the words one chooses not to say and the symbolic actions of an individual. Generally, this includes the right to record video and audio.

In July 2022, in Irizarry v. Yehia, the Tenth Circuit Court of Appeals joined six other federal circuits in ruling that the First Amendment specifically protects the public’s right to record the police on audio and video when performing their duties in public. In that case, a YouTube blogger was filming a DUI traffic stop, along with few others. The police officers on the scene contacted another officer to report the filming. An officer showed up in full police regalia and positioned himself to obstruct the bloggers’ view of the sobriety test. After the bloggers criticized the officer and voiced their disproval, the officer shone a bright flashlight into their cameras. He continued to harass the men until another officer told him to stop. During his departure from the scene, the officer drove his cruiser towards the blogger and swerved right before hitting him. He also blew an airhorn at them. The court held that at the time the incident occurred, there was a clearly established right in the Tenth Circuit to film police performing their duties in public. The officer’s purposeful interference with that right was an obvious violation of clearly established law.

The right to record police is similarly protected under Colorado law. Under section 13-21-128 of the Colorado Revised Statutes, a person has a right of recovery against a police officer’s employing law enforcement agency if a person attempts to or lawfully records an incident involving a peace officer and the officer: (1) unlawfully destroys the recording or recording device, (2) seizes the recording device without permission, lawful court order, or other legal grounds for seizure, (3) intentionally interferes with the person’s lawful attempt to record the interaction involving a peace officer, (4) retaliates against a person for lawfully attempting to record the interaction involving a peace officer, or (5) the officer refuses to return the person’s recording device that contains recording of a peace officer-involved incident within a reasonable time and without legal justification.

If the officer engages in the above conduct, the aggrieved property owner may submit a signed affidavit to the police officer’s employing agency describing the facts of the incident, the damage done to the owner’s property, and the amount of the replacement cost for any damaged or destroyed property. If the recording, rather than the device, was destroyed, the aggrieved party has the right to claim five hundred dollars for the value of the recording itself. Once the affidavit is submitted, the employing agency has thirty days to either pay the amount requested or deny the request in writing. Should the request be denied, the aggrieved party may bring a civil action against the officer’s employing agency. The amount of recovery includes the replacement value of the device, five hundred dollars for any damaged or destroyed recording, and costs and fees associated with filing the civil action. The court can further award up to fifteen thousand dollars in punitive damages if it finds that the law enforcement agency’s denial was made in bad faith.

In future blog post installments, we will further discuss citizens’ right to record the police, including limitations on the right (it can be limited, for instance, if the recording legitimately interferes with or obstructs an officer’s ability to do their job), and the public and legal importance of recordings.

This blog exists for educational and informational purposes only. It should not be seen as legal advice on any subject matter and does not form an attorney-client relationship. Readers should consult with their own counsel regarding any legal questions they have related to a specific circumstance. Additionally, any information contained on the blog is true and accurate to the best of our knowledge, but there may be omissions, errors, or mistakes. Particularly because the law regarding an issue can change over time, this blog should not be used as a substitute for the reader’s own legal research.