A protester records a video on his cellphone as he faces off with law enforcement outside the County Courthouse during demonstrations against the shooting of Jacob Blake in Kenosha, Wisconsin, on Aug. 25, 2020. (Kamil Krzaczynski/AFP via Getty Images)
But if you find yourself in a situation where you feel compelled to start recording a police encounter, how can you stay safe? Where should you send the footage? What are your rights in that moment? And how can you ensure your video isn't contributing to the psychological harm felt by communities already traumatized by police violence?
"The First Amendment gives us the right to film police who are actively performing their duties," says Geoffrey A. Fowler.
"A good rule of thumb is if you have a legal right to be present — such as on a public sidewalk or even on private property where you have permission of the owner — then you can be there with your camera," Mickey Osterreicher, general counsel for the National Press Photographers Association, told The Washington Post in Fowler's story on your rights while filming police. Osterreicher runs training programs for both journalists and police.
When it comes to private property, if you have permission to be there, Fowler says you also have the right to record police there, just like you have the right to record anybody on private property. "If you're in someone else's space, they could ask you to stop, [because] you could be violating somebody's privacy by doing so." If you're unsure about this, "err towards filming," says Fowler, "if this is a police officer doing their job."
Know What the Police Can Ask of You ...
"You can't get in the way of a police officer doing his or her job," says Fowler.
So you can expect a police officer might ask you to move away, or stand back, "and you have to do that." If they put up yellow tape, you can't then cross that line, he says.
That said, the police shouldn't ask you to "stand so far back that you can't bear witness," says Fowler. "That is your right as an American."
... But Also Know How Police Might Treat You
Brendesha Tynes says it's crucial to recognize that in reality, people often experience "a different system of policing for Black and brown people" in the U.S. — and that any recommendations for recording the police as a Black or brown person must take this into consideration.
By suggesting that a white person filming the police will get the same response as a Black or brown person doing the same thing, "we're assuming that police know our rights and will respect them," says Tynes. "And we're assuming that they don't see Black and brown people as threats."
Always prioritize your personal safety.
Secure Your Phone First
If you're heading into a situation that may potentially become intense or volatile, like a protest, Fowler recommends you investigate ways to temporarily turn off your phone's ability to be unlocked with face ID or your fingerprint. These, says Fowler, "are techniques that police could use to try to access your phone without your explicit permission, by holding it up to your face or handcuffing you and putting your thumb on it."
Instead, he recommends you use only a six-digit passcode to unlock your phone. "As long as that's on there, the police officer can't force you to tell them your code so that they can access it," says Fowler.
Think About Whether You're Going to Stream
Streaming a video live to a social media platform like Facebook, says Fowler, has pluses: For one thing, a copy of your video will at least be stored online automatically. "That means that that the police could not delete it even if they got your phone and they got into it," says Fowler.
But on the other hand, once you begin streaming live, you've lost control of where that video goes, and who sees it (more options for choosing how you release a video are below). You also might decide that you actually don't want the video out there, perhaps "because it doesn't serve the purposes of the person you're trying to help," says Fowler.
Consider Using an App to Record
Using a specialized app to film is a way of instantly sharing it with other people without necessarily sharing it publicly.
Fowler also recommends the Just Us app created by Los Angeles-based clinical psychologist Charmine Davis, which can be activated by voice and allows broadcasting to a chosen group of contacts. This voice activation may be particularly relevant in situations like traffic stops, says Fowler, when "it may be very unsafe for you to try to reach for your phone or to hold your phone to record the police officer while it's happening."
While You're Filming
Prioritize Your Personal Safety in the Moment
Always, always consider your own safety before you start filming, urges Tynes.
If you feel safe to do so, make it very clear that your phone is out in front of you, instead of partially hidden, so it cannot be mistaken for a weapon. This, says Fowler, is something Darnella Frazier took particular care to do. "She made it very obvious that she was filming. She didn't try to hide it in her jacket," Fowler says.
What Darnella Frazier did exactly right in her filming, says Fowler, was that "she acted like a journalist in this situation."
Frazier chose a clear vantage point, and "she stood back from the police to keep herself safe" as she did so, notes Fowler. She also "used a very steady hand as she recorded for a long period of time, so that the evidence would really make an impact."
Frazier also did not narrate the video she was recording — something Fowler says is a plus. By not providing her own commentary, she allowed the footage to speak for itself — and also did not draw the police's attention to the footage she was capturing, and risk engaging them herself.
It might feel incredibly hard not to react in the moment to something you're seeing, and verbalize that in your footage, but "if you do start engaging with a police officer, then you become part of the story," says Fowler.
"Your job in this instance is to bear witness and that can have a really powerful impact," he says.
After You've Filmed
Consider Where You Share the Footage
Tynes acknowledges that there are many people who advocate against sharing these kinds of videos because of the traumatic impacts they can have on viewers. But ultimately, she says, "for as long as we have a system of policing that allows police to kill Black and brown people with impunity, we need to share the videos."
"Without the videos, especially in the George Floyd case, we would have had the police report that said this was a 'medical incident,' " Tynes notes.
But if you've taken one of these videos, how can you responsibly share it? Both Tynes and Fowler say it's crucial to consider a person's family first and foremost — especially if the video contains their dying moments.
"You should think about allowing that family, those survivors, to remain in control of that person's humanity," says Fowler.
For that reason, he thinks that your first step should not necessarily be posting a video to social media, but instead "to find that person's family, find that person's lawyer, find some community organization that will have the 'big picture' about what is the right thing to do with that video."
It's not only about compassion and the dignity of the person you filmed, says Fowler, it's also about how your video might well become crucial evidence, for whom, and how it might challenge another video out there from the police. "You might not be able to see the big picture that a lawyer can," says Fowler. "So get it in the hands of a lawyer."
If you're unable to make contact with the person's family and connect with their lawyer, Fowler recommends you seek out "a community organization who you think will have the appropriate context, and might be able to help you find that lawyer."
Know Your Rights if the Police Demand Your Footage
The police might ask you for a copy of your video, notes Fowler. They could also try to "temporarily seize your phone and try to get a search warrant to go through it." This is why securing digital access to your phone, as above, is so important.
If the police do get your phone and you share the video with them, they're not allowed to delete it, Fowler stresses. Such an act "would be against both the First Amendment and also the rules of good policing," he says.
Protect Your Own Mental Health
Tynes says she personally does not share videos of police killings because of "the psychological cost of being exposed to these traumatic events online." Especially, she says, if they depict previous events that a police officer ultimately did not face any accountability for.
While "more white people still need to see these videos," Tynes says people of color should be "avoiding them as much as they can."
In the aftermath, once you've secured your personal safety and are assured of it, Tynes says you should recognize that by filming you were "doing one of the most powerful things that you could do in that situation."
You should not blame yourself for not intervening, which could have risked your own life, she says. But by recording, "you can resist. You can document what's happening."
"And that puts you in the most powerful position that you could be in," Tynes says.
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