Is it Legal to Film the Police in North Carolina?

Police Filming

In today’s modern age of smartphones and the internet, almost everyone has encountered or seen videos of police interactions. The days when camera crews had to follow officers on the street to produce TV shows like Cops are long gone. Now anyone with a phone and a quick hand can capture just about any moment and it can become viral in an instant. Videos of police activity have shaped the behavior of this entire nation, brought justice to some, and ensured others have been convicted. Filming the police is an important First Amendment right, which is the part of the Constitution that ensures freedom of speech and expression. Can you exercise this right in North Carolina? How can it be done safely for both you and the police?

Is Recording the Police a Crime Under North Carolina Law?

Currently, in North Carolina, it is not a statutory crime to record the actions of the police. That means simply because one is recording the police, it is not an offense for which they may be arrested. The general rule is that people can record activity in any public space in which there is no reasonable expectation of privacy. So that means recordings can be made on any sidewalk or street, or at any mall, parking lot, store, sporting event, or police station to name a few. But where people expect privacy, like a public restroom or changing room at a retail store, recording would be illegal and potentially criminal.

There are rules for recording spoken communication under the North Carolina Electronic Surveillance Act. The Act creates a Class H felony when a person, without the consent of at least one party to the communication "willfully intercepts any oral communication." N.C.G.S. § 15A-287(a)(1). An "oral communication" includes words spoken by a person that show an expectation of privacy, and that expectation is reasonable under the circumstances. N.C.G.S. § 15A-286(17). A recording taken via smartphone would qualify as “intercepting” oral communication, so long as there is sound in the recording. In general, recording a person's private conversations without the consent of a party to the conversation is a felony under state law.

However, police almost always conduct their business in public places. Even if they have an expectation that their communication with another party is private, that expectation is more than likely not reasonable if they are in public. That means it would be legal to record them, but to be absolutely safe it would be best to notify the police that you are recording them if you are just observing the interaction.

Is Recording the Police Allowed Under Federal Law?

Federal courts have also recognized the right to film the police as part of the First Amendment. However, that right has limitations. Our circuit, the 4th Circuit, recently discussed this right in June of 2023. In Hulbert v. Pope, the 4th Circuit stated that “neither this court, nor the Supreme Court, nor any other circuit has recognized an unlimited First Amendment right to film police free of otherwise reasonable limitations.” Federal courts all recognize that filming "may be subject to reasonable time, place, and manner restrictions." That means that while an officer cannot ask you to stop filming, they may ask you to move or change the manner of your recording if it serves a legitimate interest. Such an interest may be to protect pedestrians and drivers from harm. In Hulbert, the officer allowed the bystander to keep filming but asked him to move 15 feet away from the sidewalk. The court held that this was a reasonable restriction to the recording and did not violate free speech.

Additionally, if the officer feels that the recording puts them in imminent danger and they have evidence to support that claim, federal courts will allow them to place reasonable restrictions on filming. The officer in Hulbert claimed that the bystander was “up on [him] filming” and he “wasn’t sure what he was going to do.” The court found that this is another proper justification for having the person recording move to another location farther away.

Can I Livestream the Police?

Finally, our federal circuit has recently drawn a fine distinction between a bystander recording a police encounter and a passenger in a stopped car livestreaming directly to the internet in real-time. In February of 2023, the 4th Circuit decided Sharpe v. Winterville Police Dep't, which involved a passenger live streaming the police stop of a car he was riding in. The officer forced the passenger to stop the streaming recording. The 4th circuit found that the officer did not violate the passenger’s right to free speech. The court reasoned that “the constitutionality of a speech restriction rests on balancing interests. A different balance is struck when an officer prevents a bystander from recording someone else's traffic stop than when the officer prevents a passenger from livestreaming their own stop.” The court cited that officers often face increased risk during traffic stops from passengers in the stopped vehicles and that officers asserted that livestreaming was more dangerous to law enforcement than recording. Therefore, it is highly inadvisable to livestream officer activity as a passenger in a car stopped by the police as that is not seen by the courts as a First Amendment Right.

Can I be Charged with Other Crimes for Recording the Police?

If you are pulled over or stopped by police officers or you are a bystander recording a police encounter, here are some guidelines to help:

  • Be polite, calm, and respectful at all times
  • Move or step back when told to do so
  • Do not interfere with the police investigation or with the interaction
  • Do not physically resist the officer

Failure to do one or more of these can result in your arrest for Resisting, Obstructing, or Delaying an officer. That is a misdemeanor crime that gives officers wide latitude to arrest anyone who does not obey their commands. There is also a misdemeanor crime for Impeding Traffic by standing in the street, and even a local ordinance in many North Carolina cities for Impeding the Sidewalk. You can be arrested for these offenses as well, so try to obey the guidelines above.

But you also have rights too! You can and should ask for the name of the officer and their badge number. You do not have to stop recording, and you cannot be arrested for only continuing to record. The police need a warrant to take or search your phone. If you are being detained while filming, ask if you can leave. If the police do not allow you to leave, ask why you are being detained and what crime you are suspected of committing.

If you have been arrested while filming the police and you are facing criminal charges, schedule a free consultation with one of our award-winning attorneys by calling (704) 931-5535 today! We will fight to protect your rights.