What Are Your Rights When Filming the Police?

It’s an increasingly common reflex: when an altercation occurs in public, bystanders reach for their cellphones and start recording.

That’s especially true when it comes to altercations involving police.

While recording police has become more common since the advent of smartphones and social media, the practice dates back as far as the early 1990s, when a bystander recorded grainy video of four Los Angeles Police Department officers beating Rodney King, an incident that has been credited with changing policing in the United States.

Nearly 30 years later, a video of Minneapolis police officer Derek Chauvin pressing his knee against George Floyd’s neck brought about a second reckoning around race and policing, and later led to Chauvin’s murder conviction.

If you’ve captured a potentially criminal act, particularly one involving police, you might find yourself embroiled in what The Tyee’s legal counsel Leo McGrady describes as the “surprisingly complex” legalities around cellphone evidence.

In some cases, bystanders have reported pressure from police to delete video or hand over their phone.

“Most people would buckle under that kind of pressure,” McGrady says. “Ideally, stand your ground.”

But standing your ground requires knowing your rights. The Tyee has broken down the basics.

Is it legal to record the police?

In short, yes. Police officers working in the line of duty have no reasonable expectation of privacy and you can record them.

However, that comes with a couple of caveats.

For one, the police need to be able to do their work. If you are getting in their way or posing a safety concern, you could be removed or charged with obstruction. Stay well back when witnessing or recording police actions and allow the officers to do their job.

Next, if you are recording in a private or semi-private space, you may be asked to leave by the person responsible. In “Know Your Rights,” a document produced by the Canadian Civil Liberties Association, the organization uses a hospital — where patient privacy is important — as one example of a private space with public access where recording may be prohibited.

Several court and police disciplinary decisions have affirmed that in public spaces, police cannot simply ask you to stop recording, the CCLA says. Doing so would pose a “significant abuse of authority.”

“While there are situations where police will be able to dictate where people stand, there are very few circumstances when they can legitimately order you to stop photographing or filming on-duty police officers,” it adds.

Given your constitutionally protected right to silence, you are under no obligation to answer police officers’ questions or show them what you’ve recorded on your phone. That said, it may be easiest to share with them what you’ve captured, McGrady says.

“Although that may lead to them wanting it as evidence,” he cautions.

What if I’m asked to delete cellphone video?

Just as they can’t stop you from recording, police also can’t force you to delete cellphone footage when you’ve witnessed a police incident. In fact, deleting evidence of a crime could lead to an obstruction charge.

Allegations that RCMP officers in Prince George asked bystanders to delete video recorded during the arrest of Dale Culver, an Indigenous man who died soon after while in police custody, recently landed two police officers in court. Const. Arthur Dalman and Sgt. Bayani Eusebio Cruz were charged last year with attempting to obstruct justice in relation to the July 2017 incident.

Last week, B.C. provincial court judge Adrian Brooks determined that Dalman was guilty of attempting to obstruct justice after he lied under oath during his trial. He acquitted Cruz, saying that his testimony raised enough reasonable doubt to dismiss the charge.

Witnesses testified at their trial last month that the officers told them to delete cellphone video or have their phones confiscated or, worse, risk an obstruction charge and jail time. The officers denied those claims.

The officers testified that they were simply canvassing bystanders for video evidence in their case against Culver, who at that time was still alive and sitting in the back of a police vehicle. Witnesses who believed police were asking them to delete video or have their phones taken away had misunderstood, their lawyers argued.

But one bystander, Prince George resident Kenneth Moe, testified that he deleted a video he’d recorded following Culver’s arrest because he believed police were threatening to arrest him or confiscate his phone if he didn’t.

“[Losing my phone] would have really affected me. I didn’t have the money to buy a new one,” Moe testified. “I just wanted to get out of there.”

Moe testified that, seven years later, his phone remains with the Independent Investigations Office of BC, which investigates police incidents involving death and serious harm. The agency tried unsuccessfully to recover the deleted video.

Can the police take my cellphone?

If you have captured important evidence on your cellphone, there is a risk that police or other investigative bodies could seize your phone on the spot.

At the trial for Dalman and Cruz, RCMP Staff Sgt. Todd Cruch testified that it’s standard procedure for phones containing photos or video evidence to be seized and brought to the detachment for safekeeping, in order to ensure the continuity, or the integrity, of the evidence.

But police must have reasonable and probable grounds to believe it contains relevant evidence — and it doesn’t mean they have unfettered access to your phone’s contents.

“My advice is to say ‘no’ and try to negotiate alternatives,” McGrady says. Alternatives could include providing the files through email or text — to ensure continuity, invite police to watch you open and send the files — or going with the officers to the detachment where you can observe them downloading the files you’ve agreed to share.

You can also offer to provide your contact information and tell police you won’t delete the video so they can access it once they have a warrant, the CCLA suggests.

Keep in mind that police are entitled only to evidence related to the offence you’ve witnessed.

Just like when entering your home, police need a search warrant to legally access the contents of your cellphone. That means satisfying a judge that your device likely contains evidence of an offence — and being precise about exactly what that evidence is. You should ask to see the warrant before granting access to your phone.

Ideally, you should be there for every step of the process, McGrady says.

He recommends telling police, “I’m going to co-operate with you, but I’m not giving you my phone until you show me your warrant.” Tell the police that you are willing to go with them before a judge as they apply for the warrant. Then, insist on being present when they examine the phone and access the files specified in the warrant.

“The warrant will be very specific about what they can look at,” McGrady says. Police do not have the right to download the entire contents of your phone — that would constitute an illegal search, McGrady says.

McGrady also suggests taking a simple digital camera to protests or other events where there is likely to be confrontation with police and using the camera to record rather than using your phone. That way, you don’t risk being without your device.

Experts do caution that even if you know your rights and follow the rules, things could still go terribly wrong.

If you find yourself facing undue pressure from police, ideally another bystander is there to record the interaction. But the reality is that options for exercising your rights can be “dismal” in the heat of the moment, McGrady says. And justice could take years.

In the case of Amber Bracken, a photojournalist who was arrested and imprisoned for several days while on assignment for the Narwhal in 2021, a lawsuit against the RCMP won’t go to trial until next year.

The CCLA cautions that it’s never a good idea to physically resist police, including attempts to seize your phone. That could lead to criminal charges and risk your safety, it says.