Yes, You Can Film Cops In New Jersey: Here Are The Rules

NEW JERSEY — Want to film a cop in New Jersey? It’s your legal right – with a few exceptions, authorities say.

Acting Attorney General Andrew Bruck recently announced three new police directives, including an update about filming law enforcement officers on the job.

According to Bruck, a bystander has the right to record police activity under the First Amendment, as long as they follow some basic rules. Here’s what AG Directive 2021-11 says.

RIGHT TO FILM - A bystander has the right to witness, observe, audio and video record, photograph, comment on, or complain about law enforcement officers conducting official duties in public, as long as the bystander has a legal right to be present where they are.

TAKING ACTION - Officers can’t take action against “non-interfering” bystanders such as arresting or detaining them, telling the person that recording isn’t allowed, deliberately blocking the view of people who are recording, or demanding that they show identification or a permit.

CROSSING POLICE LINES - Bystanders can’t cross a police line or enter a crime scene simply because they have a recording device, and they can’t “purposely obstruct a government function.”

INCITING OTHERS - Officers can question or detain a person who they reasonably suspect is “inciting others to violate the law,” or who they believe has committed/plans to commit a crime.

INTERFERING WITH POLICE - If a bystander is recording police activity from a position that “materially impedes or interferes” with the safety of officers or their ability to perform their duties, or threatens the safety of members of the public, the officer can tell the bystander to move to a different place nearby. However, the officer can’t order the bystander to stop recording.

Can a cop take your camera or phone? Generally, police officers need a warrant to either seize or search a recording device, Bruck said. However, there are a few twists to the rule, he added.

For example, police are allowed to seize a phone or camera during the lawful arrest of a bystander. But officers still need a warrant to actually search through the device, unless it is necessary to “prevent imminent death or serious bodily harm.”

If the officer has probable cause to believe that a bystander's recording device contains evidence of a crime, they can do one of two things. First, the officer can ask the person to voluntarily send the recording to law enforcement. If that isn’t possible, the officer can ask them to voluntarily hand over the device or its memory chip.

If the bystander refuses, the officer is allowed to seize the device if three conditions are met:

• There is probable cause to believe that a violent crime resulting in serious bodily injury or death has been committed
• There is a good-faith belief that there is evidence of that crime on the recording device
• There is a good-faith belief that the evidence will be lost or destroyed absent seizure

Police should show particular care when it comes to seizing recording devices from journalists, Bruck added.

“Law enforcement should never seize a press member's recording device, except in the exceedingly rare case where it is necessary for public safety or the result of a search incident to a lawful arrest of the journalist,” the directive states. “In addition, officers must never delete material from a journalist's recording device, and should obtain warrants to search such devices only after obtaining approval from the county prosecutor or the attorney general.”

Whenever a police officer seizes a camera or other recording device, they should give the person information about where, when and how to recover it. Seized devices should be returned “as soon as practicable,” the directive states.

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‘NONE OF US CAN FORGET DARNELLA FRAZIER’

Bruck’s latest policy update on recording police officers got a big round of applause from several advocacy groups, including the New Jersey Institute for Social Justice, which specifically called for the directive and worked with the attorney general and partners at the ACLU of New Jersey to craft it.

“None of us can forget the role that a young Darnella Frazier played in recording George Floyd's murder, resulting in the conviction of Derek Chauvin – one of many cases where recordings have led to police accountability,” the group charged.

Other support for the policy came from:

Jeanne LoCicero, legal director at the ACLU-NJ – “Far too many people who film police for accountability have been intimidated by police or charged with obstruction just for using their phone to record. The Right to Record Directive affirms the essential First Amendment right of New Jerseyans to document and even criticize police conduct. The Directive sends a critical message to law enforcement and communities alike and is an important step forward on New Jersey’s path to improving transparency and ensuring anti-racist policing practices.”

Jiles Ship, president of the National Organization of Black Law Enforcement Executives, NJ chapter – “Transparency in law enforcement agencies is particularly important because the agencies exercise discretionary power and require significant trust from the public. If police officers are engaging in misconduct or failing to protect civilians from violence, we must be able to discover it and determine how to improve policing. This also helps to ensure the safety of the officer.”

Wayne Blanchard, president of the State Troopers Fraternal Association – “As troopers, we pride ourselves on preserving the rights and dignity of each and every individual we encounter. We believe in the final product of the Office of the Attorney General’s First Amendment recordation policy. This policy provides great balance between the protection of our citizens’ rights, while giving clear guidelines to law enforcement that will allow them to perform their duties in a safe and constitutionally sound manner.”

Send news tips and correction requests to eric.kiefer@patch.com.

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