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Thursday, May 29, 2014

Is it Legal to Film or Photograph a Police Traffic Stop?

By: Peter J. Lamont, Esq.
New Jersey Business and Personal Law Attorney
Law Offices of Peter J. Lamont

We represent a number of professional photographers and one of the recurring questions that we receive is whether a photographer can legally film or photograph a police officer during a traffic stop.  Police officers often direct photographs to "stop filming" or to "leave the area", but it that legal? What are the rights of a photographer to film a traffic stop?

Well, a recent First Circuit Court of Appeals case has clarified the rights of a photographer to peacefully record a police officer performing his or her official duties in a public area.  The case of Gericke v. Begin is both interesting and a victory for amateur and professional photographers who want to capture police traffic stops on "film".


A police officer stopped a vehicle which he believed had been speeding near the Weare Middle School in Weare, New Hampshire. A second vehicle driven by Carla Gericke pulled over behind the stopped vehicle. An officer approached her and asked her to leave the area. She explained that she was traveling with the occupants of the other vehicle.  Eventually, Gericke moved her car to an adjacent parking area where she exited the vehicle and began filming the traffic stop with a video camera.

Gericke was approached by officers providing backup support and instructed to produce her driver's license and registration.  She refused and argued that she was not operating her vehicle and should not be required to provide the documentation. Eventually, she was arrested for  disobeying a police officer, obstructing government administration, and unlawful interception of oral communications (a violation of the state's wiretapping laws.)


Gericke filed a lawsuit in the U.S. District Court in New Hampshire alleging that her constitutional rights were violated, including her First Amendment rights to record the traffic stop.  The police and municipal defendants filed a motion for summary judgment seeking to dismiss the case on the grounds that they were entitled to qualified immunity.

Qualified immunity provides government officials with "breathing room to make reasonable but mistaken judgments" by shielding officials from liability for civil damages for actions that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

The District Court denied the motion and ruled that Gericke was lawfully filming the stop. The police appealed and the U.S. Court of Appeals affirmed the District Court's ruling and have cleared the way Gericke's case to proceed to trial.

In the ruling, the Court of Appeals stated that "it was clearly established at the time of the stop that the First Amendment right to film police carrying out their duties in public, including a traffic stop, remains unfettered if no reasonable restriction is imposed or in place. Accordingly, we hold that the district court properly denied qualified immunity to the officers on Gericke's section 1983 claim that the wiretapping charge constituted retaliatory prosecution in violation of the First Amendment."


This ruling clears up much confusion and will be looked at by other courts for guidance.  In general, a police officer has no expectation of privacy when performing a traffic stop and it is legal for a photographer to peacefully record or photograph the stop and the officer's activities. 

Gathering information about government officials in photographic form "serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'" Glik, 655 F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Protecting that right of information gathering "not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally." Id. at 82-83 (citations omitted). Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is "police carrying out their duties in public." Id. at 82. A traffic stop, no matter the additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not extinguish an individual's right to film.

However, an individual's exercise of the right to film a traffic stop can be limited.  Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them. See Glik, 655 F.3d at 84 (the exercise of the right to film may be subject to reasonable time, place, and manner restrictions); ACLU of Ill. v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012) (reasonable orders to maintain safety and control, which have incidental effects on an individual's exercise of the First Amendment right to record, may be permissible).

The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure -- for example, a command that bystanders disperse -- that would incidentally impact an individual's exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.  Thus, a photographer's First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed or in place.

If you would like to receive a free copy of the Court's decision in Gericke, please call me at (973) 949-3770 or e-mail me at plamont@peterlamontesq.com

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com We answer legal questions on a daily basis and would be happy to discuss any issues or questions that you have with you.  Offices in: New Jersey New York, Colorado & Puerto Rico.  Affiliated throughout the country.

© 2014, Law Offices of Peter J. Lamont. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

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