By Jason R.L. Major – Concord New Hampshire Lawyer

Over the last several years it was commonplace to see news reports concerning citizens being arrested for videotaping police officers while doing acts in the line of duty, like making a motor vehicle stop or a sidewalk arrest. These video-taping citizens were often charged with crimes such as “obstructing government operations” or violations of wiretapping laws intended to protect private conversations. While it may seem obvious to most that a job which requires officers to “protect and serve” the public should be subject to the scrutiny by members of the public being “protected and served,” many law enforcement officials apparently objected to having their public duties recorded.

Thankfully, this dispute over whether the public has a right to record police officers has been decided in favor of an open and accountable government. The New Hampshire Attorney General released a memorandum to all law enforcement agencies in the State making it clear that citizens have a right to record police officers conducting official duties, so long as the recording does not actually interfere with the performance of those duties. Embarrassment at being on film does not constitute interference – it would have to be something like the cameraman getting in the way of an officer making an arrest.

The Attorney General’s memorandum was issued in the wake of an Order issued by the U.S. Court of Appeals for the 1st Circuit in the case of Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). The Court of Appeals held that citizens have rights under the First and Fourth Amendments to the U.S. Constitution to record government officials during the performance of their official duties.
Such recording does not violate New Hampshire’s wiretapping statute. Prior to the Attorney General’s memorandum, police departments were relying on the “two party consent” rules of the wire-tapping statute to arrest people who recorded officers’ voices without their consent. The wiretapping statute was not intended to protect people, and especially not public officials doing their jobs, who are out in public speaking where they do not have a reasonable expectation of privacy. It was intended to protect truly private conversations, held out of easy earshot of others.
While the Glik case and the Attorney General’s memorandum are welcome, if overdue, vindications of the right to hold government officials accountable for their actions – good or bad – some officers have begun to come up with creative ways to circumvent citizens’ constitutional rights. For instance, a San Diego police officer recently ordered a person to stop recording an encounter, claiming that his cell phone could be a “weapon.” http://fox40.com/2013/04/10/cop-calls-phone-a-weapon-tells-man-to-stop-recording/.
Officers doing their jobs in an accountable, above-board manner have nothing to fear from being recorded. Most officers actually welcome it, because it keeps the person they are interacting with as honest as they are. It is the officers who do not want to be recorded that most need to be. As the conduct of the San Diego officer shows, we will all need to remain vigilant to avoid efforts to violate our fundamental rights to hold our government officials accountable.
If you believe your rights have been violated, you should consult an experienced lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form for a case evaluation.