Recording a police officer who is working in public is legal in Florida. The state wiretap statute, Fla. Stat. s. 934.03, reaches only communications the speaker could justifiably expect to be private, and an officer on duty in front of onlookers cannot. The Eleventh Circuit has separately recognized a First Amendment right to record police conduct in public, subject to reasonable time, manner and place limits. What you cannot do is physically get in the way.
Keep reading if you want to ensure accountability within law enforcement while safely and legally preserving your constitutional rights.
Recent Events And Controversies Surrounding Recording Police
The controlling Florida case on recording police came out of Boynton Beach, took twelve years to resolve, and was decided the wrong way once before it was decided the right way. Here is what actually happened.
2009 Boynton Beach Incident
In 2009, Sharron Tasha Ford was arrested in Boynton Beach, Florida, after she recorded officers who were detaining her teenage son outside a movie theater. Officers told her to stop recording and, when she refused, arrested her for intercepting oral communications and obstruction without violence.
Ford sued the city for false arrest. The trial court granted summary judgment to the city, and a Fourth District Court of Appeal panel first affirmed that ruling. Ford moved for rehearing. The court granted the motion, withdrew its opinion, and issued a substituted opinion on August 4, 2021 reversing.
That substituted decision is Ford v. City of Boynton Beach, 323 So. 3d 215 (Fla. 4th DCA 2021). It holds that officers carrying out their duties in public view have no reasonable expectation of privacy in what they say, so Ford's recording was not an interception of an oral communication, and that she had never physically blocked anyone. The withdrawn panel opinion is not law and cannot be cited for the opposite result.
ACLU's Stance on Recording Police
The ACLU of Florida publishes a know-your-rights page on recording police in this state. Its position is that you may record anything in plain view from a place you have a right to be, that officers may not demand to see your footage or delete it without a warrant, and that an officer may impose only genuine time, manner and place limits.
So, Is It Legal To Record Police Officers In Florida?
Recent events have sparked debates about the legal aspects of recording police encounters. It’s important that individuals involved in such recordings know their rights under Florida law while promoting transparency within law enforcement.
Understanding The Florida Wiretapping Law
Yes, with limits. Florida is an all-party consent state, not a one-party consent state. Fla. Stat. s. 934.03 makes it a crime to intercept an "oral communication" without the consent of everyone taking part, and a violation is normally a third-degree felony under s. 934.03(4)(a).
The limit sits in the definition. Fla. Stat. s. 934.02(2) defines "oral communication" as words spoken by a person "exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." An officer working in public, in front of onlookers, has no expectation the circumstances would justify, so recording that exchange is not an interception at all. No justified expectation of privacy, no protected communication, no consent problem. What you still cannot do is physically interfere with the officer's work.
The federal authority in this circuit is Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), which recognized a First Amendment right to photograph or videotape police conduct, subject to reasonable time, manner and place restrictions. The Florida authority is Ford v. City of Boynton Beach, 323 So. 3d 215 (Fla. 4th DCA 2021), described above.
There are some restrictions on recording police officers. For example, you cannot interfere with police operations while recording, and you cannot record in areas with a reasonable expectation of privacy, such as bathrooms or locker rooms.
Recording Police During A Traffic Stop
In Florida, citizens can film police officers on duty, including during traffic stops. The law is supported by the First Amendment of the U.S. Constitution, which grants individuals the freedom to document public activities for accountability and transparency.
Florida has no statute making it a crime for a passenger to refuse to identify himself during a traffic stop. The driver is a different matter: Fla. Stat. s. 322.15(1) requires a licensee to carry the driver license and present it on an officer's demand. Recording is lawful either way, but a person who physically interferes with the stop can still be charged with resisting an officer without violence under Fla. Stat. s. 843.02, a first-degree misdemeanor. Standing back a reasonable distance is what keeps the recording lawful and that charge off the table.
Civil Rights Law In Florida
If you are arrested for recording, the claim against the officer is usually a federal civil rights claim under 42 U.S.C. s. 1983, for false arrest and for retaliation against protected First Amendment activity. A state law false arrest claim against the city or county is also possible, but Fla. Stat. s. 768.28(6)(a) requires written notice to the agency, generally within 3 years of the incident, before that suit can be filed. Ford v. City of Boynton Beach was exactly this kind of case, and it ran for twelve years.
Best Practices For Recording Police Encounters
Recording police encounters can be a helpful way to protect your rights and document any potential misconduct. However, it's important to follow best practices to ensure that your recording is legal and effective.
Announce The Recording
Citizens who choose to record police encounters in South Florida should be aware of the importance of giving notice of their recordings. This best practice helps protect both parties and promotes transparency in law enforcement.
By announcing the recording, citizens demonstrate that they are not attempting to film an officer's actions secretly but are exercising their right to document a public interaction.
Additionally, announcing the recording can help avoid misunderstandings or conflicts during the encounter. It is important for citizens to remember that while they have the right to record, they should always do so respectfully and from a reasonable distance so as not to interfere with police work.
Maintaining A Reasonable Distance
When recording police encounters, it’s important to maintain an appropriate distance from the activity being recorded. This is for your safety and helps avoid interference with police duties.
Being at an appropriate distance will allow you to record the interaction without interfering or distracting officers. It’s recommended that you find a vantage point from which you can easily see and record the encounter while maintaining a safe distance.
Interfering may result in legal consequences and affect your recordings' effectiveness as evidence. The primary focus should be on providing an accurate account of the encounter while maintaining the line between documentation and obstruction of law enforcement.
Documenting The Date, Time, And Location
By including this information in your record or noting it separately, you provide important context for possible future court proceedings or complaints. Documenting the date, time, and location will help strengthen the credibility and reliability of your recorded encounter.
With this information, there’s a clear timeline of events that can ensure no ambiguity about when and where the encounter occurred. This information will also allow you to corroborate your testimony if needed.
The Pros And Cons Of Recording A Police Encounter
Recording police encounters has become a controversial issue in recent years. Some see it as a necessary tool to hold law enforcement accountable, while others see it as a potential threat to officer safety.
Advantages Of Recording Police Encounters
Recording a police encounter can provide valuable evidence in court. If a person is charged with a crime, video evidence of the encounter can be used to support their defense. This evidence can prove that law enforcement acted unreasonably or that the person did not break the law.
It can help ensure that law enforcement is held accountable for their actions. When the encounter is captured on video, it’s more difficult for law enforcement to deny or distort the facts. This can be especially important in cases where excessive force or other civil rights violations may have occurred.
Recording can also increase the transparency of law enforcement. Making these encounters public can increase trust between law enforcement and the public and promote transparency in policing.
Disadvantages Of Recording Police Encounters
Despite its benefits, recording police encounters can put the person doing the recording at risk, especially if the encounter is heated or confrontational. Law enforcement officers might view the recording as a threat and respond with aggression or intimidation.
Recording encounters with police in Florida can have legal consequences, significantly if the recording interferes with police operations or is made in areas where reasonable privacy is expected.
This recording can also be distracting and potentially disruptive to police operations. This can create a dangerous situation for the person making the recordings and law enforcement.
Speak To A Florida Criminal Defense Attorney Today
If you feel you've been wrongfully arrested for recording the police, don't hesitate to contact Weinstein Legal Team today. Our lawyers can provide the legal guidance and support you need to navigate this difficult situation.
Call us today to schedule a free consultation with one of our experienced attorneys. We'll review your case, answer your questions, and provide you with the representation you need to protect your rights and seek justice.
