Florida's Laws May Have Changed
Some of the laws regarding recording police encounters may have changed since this article was written. You can click the button below to read the new article, or continue reading the article below.
You have probably seen the videos. Someone films a police officer, the officer tells them to put the camera away, and the encounter goes sideways fast. The question underneath all of them is easy to ask and harder to answer: can you record the police in Florida?
Like many things, there is conflicting information on this, and no definitive answer to every situation. However, as a general rule, in public, you do have a right to photograph and film the police.
Florida is an all-party consent state for audio. Section 934.03 makes it a crime to intercept an "oral communication" without the consent of everyone taking part. The catch sits in the definition. Section 934.02(2) limits "oral communication" to words spoken by a person "exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." No justified expectation of privacy, no protected communication, and no consent problem.
Florida is one of a small group of states with an all-party rule. Florida courts have held that the privacy requirement is not met by officers doing police work in view of the public, so openly recording them is not a wiretap violation. The Eleventh Circuit has separately recognized a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. See Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
If you have been wrongfully charged or arrested for obstruction or interfering with police officers in Florida, such as video recording them, protect your rights with the help of a criminal lawyer near me immediately.
What Is the Florida Wiretapping Law?
Section 934.03 is Florida's wiretapping law. It covers intercepting a "wire, oral, or electronic communication" without the consent of every party, and a violation is normally a third-degree felony under Section 934.03(4)(a). What it does not do is make every recording a crime, because "oral communication" is a defined term and that definition carries the privacy requirement with it.
Section 934.02(2) is the definition that does the work. It reaches only words spoken with an expectation of privacy that the circumstances justify, which leaves public events outside the statute. Federal and Florida courts have applied that reasoning to on-duty officers working in public view.
The line is narrower than either extreme people usually hear. Recording an officer working openly in public is not a wiretap violation, because the officer has no justified expectation that the exchange is private. Recording a private conversation you are not part of, or one held somewhere people do expect privacy, still falls squarely under Section 934.03. And nothing in the wiretap analysis excuses physically getting in an officer's way.
Is It Legal to Record Police during a Traffic Stop?
The right to record on-duty police officers is protected under the First Amendment in situations where the officers have no expectation of privacy and you are not interfering with their work in any way.
As mentioned above, it is legal to record on-duty police officers engaged in police work in Florida, so you can legally record them during a traffic stop. However, you should use common sense and follow a few basic rules. You should also be aware that you might be arrested, even though you are not doing anything illegal. And, if you've followed the rules, you will probably not be convicted of any criminal charges.
If you record during a traffic stop, an officer may pressure you, try to take your phone, or arrest you on a charge such as disorderly conduct, a wiretap violation, or obstruction of justice. The recording itself is not the crime, so any charge has to rest on something else you did. Often there is nothing else there.
The police may consider being recorded as a challenge to their authority. A police officer who pulls you over may not be well-versed in wiretapping and recording laws and may try to prevent you from recording or videoing them even though you are doing nothing wrong or illegal.
Charges like these are hard for a prosecutor to prove beyond a reasonable doubt when the only conduct on the record is filming, and they are frequently dropped. That is not a prediction about any particular case. It does mean the arrest is often the point, and the paperwork comes afterward.
What to Do If You Record the Police
If you choose to record the police during a traffic stop, there are a few things you can do to minimize the chances of being arrested. Remain calm and non-threatening. If you are a bystander, stay at a distance where you won't be interfering with their work.
Use Caution While Recording Any Law Enforcement Activity
However, you should always be respectful when dealing with the police. They perform a dangerous job, and they often need to make snap decisions about possible threats. Tell them you are exercising your First Amendment Right to video record them. Let them know that if they think you are a threat, to tell you immediately so you can change any perceived behavior that makes them nervous, short of not exercising your right to record them.
Recent Events in Boynton Beach Shed Light on Citizen's Right to Record Law Enforcement Activity
A case out of South Florida reached the Fourth District Court of Appeal after Sharron Tasha Ford was arrested for recording officers who were detaining her son outside a Boynton Beach movie theater. The arrest happened in 2009. A panel first ruled against her, but the court then granted rehearing, withdrew that opinion and substituted a new one on August 4, 2021. See Ford v. City of Boynton Beach, 323 So. 3d 215 (Fla. 4th DCA 2021).
The officers had charged her with intercepting oral communications and obstruction without violence, arguing that she kept recording after being told to stop and that the recording invaded their privacy. The withdrawn panel opinion accepted that she had obstructed the detention.
That reasoning did not survive rehearing. The substituted opinion adopted the position taken in the earlier dissent: officers carrying out their duties in public, in front of onlookers, have no reasonable expectation of privacy in what they say, and Ford, who never physically blocked anyone and only declined to stop filming, should not have been arrested.
Florida Statute Video Recording without Consent
Video is generally legal in Florida, with one main exception. Section 810.145, now titled digital voyeurism, covers secretly recording someone in a place where they expect privacy: a bedroom, a changing room, a hotel room, a bathroom. For an offender 19 or older that is a third-degree felony, up to five years in prison and a $5,000 fine. It rises to a second-degree felony, up to 15 years and $10,000, for a repeat offender or someone who used a position of authority over the victim. A civil suit for invasion of privacy can follow either way.
Home Security Cameras Are Legal
It is not uncommon for Florida residents to install video recording equipment outside their home to monitor suspicious behavior. This is completely legal as long as no rules regarding video voyeurism are violated. It is recommended that cameras be installed so that they are visible and pointed to an area where people don't expect privacy.
Workplace Surveillance Is Legal
Employers are allowed to video their employees in the workplace as long as it is for legitimate reasons, such as theft prevention. Video voyeurism laws also apply, so employers must be careful not to put cameras in a place where staff could reasonably expect privacy. And, of course, putting video cameras in the bathrooms is a hard no.
A Note on Audio Recording in Videos
While the images in your video are protected by the First Amendment, the audio is a murkier area. Due to the wiretapping statute in Florida, they may try to cite you for the audio portion of your video and may try to take your device.
If this happens, stay calm and do not resist. Remind the officer that they need a warrant or a reasonable belief that there is evidence of criminal activity on your device in order to search it.
How Can a Criminal Defense Attorney Help You?
Most people are not comfortable when strangers take pictures, record, or video record them. Police officers are no different. Even though it is your First Amendment right to do so, on-duty police officers will probably feel uncomfortable when you record or video them.
At best, they will ignore you, at worst they may arrest and charge you for disorderly conduct, violation of wiretapping laws, or obstruction of justice. If you were charged with one of these offenses, and if you were legally recording the police when you were arrested, let a Florida Criminal Defense Lawyer advocate for justice on your behalf. There is every reason to believe that the charge will be dropped after we have a chance to speak with the prosecutor and the judge.
For further questions related to legally recording police officers, call 888-626-1108 today to speak to a criminal defense attorney in private.
