Can I Record the Police in SC?

by | Nov 16, 2018 | Criminal Defense, First Amendment |

In recent years, we have seen over and over how a citizen recording of a police encounter can change the outcome. Can I record the police in SC, though?

Before the proliferation of cellphones and other easy-to-use recording devices, a claim of police misconduct almost always ended in the suspect’s word against the police officer’s word. And maybe a few other corroborating police officer witnesses… who do you think the courts believed?

When a “suspect” or even a bystander records an incident on their cellphone or another device, however, there is no question about what happened, what was said, and who was in the wrong.

In today’s world, people understand the importance of recording police encounters. But people also need to understand the risks that they are taking when angry police officers don’t want to be recorded.

Below, I’ll discuss how you can record the police if you choose to do so, when it is legal to record the police in SC, and the very real danger that you may be exposing yourself to if a police officer sees you recording them.

How Can I Record the Police in SC?

There are many different devices, apps, and options for recording a police encounter. Whatever method you use, the best practices include:

  • Make it simple and easy to begin recording – if you are involved in or witnessing a tense police encounter, the stress that you are feeling might make it difficult to manipulate a complicated recording device;
  • Protect your phone or recording device with a passcode if possible (not a fingerprint or retinal scan);
  • Include a simple way to notify a friend or other third party of what’s happening; and
  • Send the recording to a third party or a cloud server as it is happening so that officers cannot delete the recording at the scene.

What type of devices do people use to record the police in SC?

Smartphones

The simplest, and least secure, method of recording the police in SC is to hit record on your cellphone’s video app.

Most of the videos of police brutality that have surfaced nationwide in recent years came from bystanders who pulled out their cellphone and hit record. There are drawbacks to this recording method, including:

  • Officers who do not want the video to surface can seize your phone and either destroy it or delete its contents;
  • Holding a cellphone and “pointing it” at a police officer can be intimidating for the officer and can lead to claims that the officer thought it was a gun after they shoot you;
  • If you are not using an app designed for recording police, you will probably not have an easily accessible method of immediately transmitting the recording to a third-party site or another person; and
  • You may lose your cellphone if officers decide to seize the recording as evidence.

What are some other methods of recording police in SC?

Recording Devices

There are any number of recording devices available online or at electronics stores that can be easily concealed in your pocket or in your vehicle.

These devices can be configured to record continuously, or some can be voice-activated. One drawback to this method is that most easily-concealable devices are audio only – if you are not recording video, you may be missing the most critical pieces of evidence during the encounter.

Another drawback is that most recording devices do not have the capability of immediately and automatically sending the recording to a third party or cloud server.

ACLU Mobile Justice App

The ACLU’s “mobile justice app” looks like it has solved many of these issues, allowing you to record audio and video which is then automatically sent to your state’s ACLU. Its features include:

  • Recording – audio and video files are automatically sent to the ACLU;
  • Witnesses – the app will send an alert to other persons who have downloaded the app who are near your location, so they can come to where you are and help document the incident;
  • A report – there is an option for you to complete a detailed report after the encounter which is then sent to the ACLU; and
  • Know your rights – the app provides an overview of what your rights are in your state.

The drawbacks?

It is not available yet in South Carolina, although the ACLU’s website says more states will be added soon. It is available in North Carolina.

Police Shortcut App

If you have an iPhone, you may already know about a new app called “Shortcuts,” that allows you to “stitch together several apps and create a script that can be activated by pressing a button or using Siri.”

One “shortcut” that has already been developed is called “Police” – once it is installed on your phone, it can be voice activated (“Hey Siri, I’m getting pulled over…”) and it will:

  • Pause any music that is playing;
  • Turn down the brightness on your iPhone;
  • Turn on “do not disturb” mode;
  • Text a predetermined contact to let them know what is happening; and
  • When the recording is complete, it will automatically send the recording to a predetermined contact and save it to Dropbox.

Other Apps to Record the Police in SC

There are plenty of other apps that have been developed specifically to allow you to record police encounters or report police misconduct, including:

  • Hands Up 4 Justice;
  • I’m Getting Arrested;
  • The Swat App;
  • Five-O; and
  • Stop and Frisk Watch.

Is it Legal to Record the Police in SC?

Now that we’ve looked at some of the technology that allows you to record police encounters, the next question is whether it is legal to record the police in SC.

What does the law say about your right to record police officers, when is it not okay to record a police officer, and, even if it is legal, are you exposing yourself to danger from angry police officers who may arrest you or worse?

Is There a First Amendment Right to Record the Police?

The First Amendment protects our freedom of speech, which includes expressive conduct, which includes the making of photographs or videos that will be used to communicate a message to an audience, which includes filming police officers during the course of their duties (especially when they are abusing their authority).

Although the appellate courts have been slow in deciding these cases, filming the police is protected by the First Amendment. The question that often comes up in litigation is not whether filming the police is protected by the First Amendment, but whether it is an established right that police departments and officers are on notice of.

The question arises in the context of lawsuits for violation of your First Amendment rights when police seize the recording device or arrest the person who is recording. If it’s not an established right, officers may be given “qualified immunity” by the courts and your case could be dismissed.

Reasonable Restrictions

Although you have the right to film police under the First Amendment, that right is subject to reasonable “time, place, and manner restrictions.”

Time, place, and manner restrictions must be narrowly tailored to meet the government’s needs while infringing on your First Amendment rights as little as possible. For example, you cannot interfere with a police officer’s duties while you are recording, and you cannot just walk into a crime scene with your camera rolling…

Any law that restricts your First Amendment rights must also provide ample alternative means for you to exercise your First Amendment rights.

For example, although you cannot interfere with a police officer or investigation, there is usually no legitimate reason for the government to prevent you from recording what is happening at a safe distance…

Wiretap Laws in SC

When a police officer sees that you are recording them, they might tell you that it is illegal because it violates SC or federal wiretap laws. Is that true?

Maybe…

South Carolina is a “one-party” state, which means that you can record any conversation that you are a party to without getting consent from the other person. That includes police officers.

If you are recording other people without their knowledge and you are not a party to the conversation, that does violate SC and federal wiretap laws, at least as to the audio.

While the First Amendment may provide protection against a wiretap charge when you are recording police activity, there’s just not a lot of case law to rely on. That’s probably because it is rare for someone to be charged with a wiretap violation after recording police and therefore there are no appellate court opinions on it…

Two things are certain:

  1. You cannot be convicted for a wiretap violation in SC if you are a party to the conversation you are recording; and
  2. You cannot be charged for a wiretap violation if you are recording only video of third parties and not audio.

Will I Be Arrested if I Record the Police in SC?

You might be.

If you are not, police might confiscate your cell phone or other recording equipment, especially if you have recorded misconduct that they do not want the public to see…

There is no foolproof way to ensure that you are not arrested or worse if you are recording an incident of police abuse or misconduct, but there are some guidelines that may help you to minimize the risks of recording police:

Know the Law Before Recording the Police in SC

Know what the First Amendment does and does not protect, know SC’s wiretap statutes, and be familiar with the types of SC crimes that police officers may charge you with:

  • Interfering with a police officer;
  • Disorderly conduct;
  • Breach of peace;
  • SC and federal wiretap laws; and
  • Other criminal eavesdropping statutes.

Don’t Secretly Record the Police

You can secretly record a police officer in SC if you are a party to the conversation, but that doesn’t mean you should.

If you are talking to the police officer, let them know that you are recording – for your safety and for theirs. Don’t dwell on it, don’t threaten the officer, and be polite about it. They should not care or interfere – after all, they are most likely also recording the incident.

If you are standing at a distance, it may not be possible to tell the officer that you are recording, and that is okay. If you are far enough away that you are not capturing audio, there shouldn’t be any question that you within the law.

Is it illegal to film police, including audio, if you are not speaking with the officers?

There is no case law on this issue in SC that I am aware of (which means that no one has been arrested, tried, convicted, and appealed), In other areas of the country, the law is often unclear. Some states require police consent to record, but others have struck down anti-recording laws as unconstitutional – including secret recordings. Other state courts have held that it is okay to openly record the police but not to secretly record the police.

Be Respectful

The police officer you are recording may be respectful about it. Or, they might not.

Either way, you need to be respectful. Keep calm, keep a polite tone of voice, don’t use sarcasm, and don’t give them any reason to arrest you or ammunition to impeach your credibility later.

If a police officer asks you to move away from an incident or a crime scene, do it immediately. If an argument can be made that you were interfering with an officer’s duties or not obeying a lawful order, you are more likely to be arrested, and you may not have a First Amendment defense.

Don’t threaten a police officer or tell them how you are going to sue them… you are only making yourself look bad and – if you do sue them – you will hear the recording again.

If they ask you to stop recording, you will have to decide what to do based on the situation that you find yourself in. If you are confident that you are exercising your First Amendment rights, you are not committing any crimes, and there is a compelling reason for you to continue filming, then do what you must do… respectfully.

SC Criminal Defense and First Amendment Lawyers in Myrtle Beach

If you have been arrested for exercising your First Amendment right to film police, you need a Myrtle Beach criminal defense attorney who understands First Amendment law, who can investigate your case, get your charges dismissed or take them to trial, and advise you as to whether you have a civil rights lawsuit against the police department.

Contact Coastal Law for a free case evaluation by calling now at (843) 488-5000 or by getting in touch online.

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