The Right to Record Police in Connecticut

Abstract

There is a nationwide culture-clash between police and citizen-recorders: citizens who desire police accountability on the one hand, and police who must maintain order on the other. More and more Americans, using now ubiquitous cell phone cameras, can document police conduct. Even though these encounters are on the rise, the law governing our right to record police in their everyday duties is not clear. Those many officers who intend to act with dignity and decorum, to serve and to protect, need to know the rules. Yet police administrators have not provided rank-and-file officers with clear street-level procedures and training for these situations. When can police lawfully stop a citizen from recording? Does recording police even fall within the criminal statutes statutes used? What are the constitutional contours of a right to record police? What state interests are at stake?

This note begins an inquiry into these questions, focusing on the state of Connecticut. (Every state in America faces analoguous issues and has simliar statutes, however.)

I start by examining the interests at stake. Why would police want to stop someone from recording them? Why would someone want to record police? What are the policy considerations? Next, I explore the criminal statutes invoked in Connecticut to prevent and deter citizen-recordings, in particular interfering with an officer and disorderly conduct, and whether the act of recording police falls within these statutes. I conclude that these catch-all criminal statutes may apply under specific facts. I then set forth the constitutional rules surrounding recording police, including free speech and press rights, due process rights, and other constitutional issues. Lastly, I consider the appropriate scope of a right to record police and suggest key points for a model policy on police interactions with citizen-recorders.

The scope of my inquiry is limited. I assume the recorder has a license to be present when the encounter occurs in a store, at a traffic stop, in a parking lot, at the recorder‘s own home, at a friend‘s home, or the like. Second, this note examines only citizen recorders who specifically intend to record police officers, as opposed to those who record by accident. Third, this note does not consider recording police incidentally or with stationary surveillance devices. However, I presume no prior relationship between the recorder and an accused — they could be strangers or friends. Additionally, the medium might include video, still images, audio, or a combination of these.

In the final analysis, despite legitimate reasons for limiting a citizen‘s right to record police, I conclude that the use of catch-all statutes in Connecticut to prevent or deter these recordings is both unconstitutional and unwise. I propose clear, workable rules for police officers. I principally hold prosecutors, lawmakers, and police administrators accountable. Rank-and-file officers will be the targets of lawsuits and complaints, but those most at fault sit above street-level.

Keywords: police, cameras, right to record, right to record police, first amendment, right to gather information, expressive conduct, police policy, privacy