Any American Can Take Any Police Officer's Photo

A Washington Post reporter was arrested outside of St. Louis, Missouri, on Wednesday evening after video-recording law-enforcement officials. He was well within his rights—and would have been even if he weren't a journalist.
Mario Anzuoni/Reuters

Police in Ferguson, Missouri, arrested two reporters Wednesday night as protests over the police shooting of an unarmed teenager continued for the fifth day. The journalists, the Washington Post’s Wesley Lowery and the Huffington Post’s Ryan Reilly, were only detained for about 15 minutes before being released, but the incident provoked widespread outrage over the Ferguson police’s increasingly brutal tactics.

In a first-person account of the incident, Lowery wrote that armed officers stormed a McDonald's in which he and Reilly were working and demanded to see ID. They then told Lowery to stop video recording them, and finally they ordered the reporters to leave and claimed they weren’t leaving fast enough. According to other reports, the Ferguson police also demanded that an MSNBC camera man and a local Fox News crew take down their cameras. Police hit the crew of Al Jazeera America with tear gas and dismantled their gear.

In an editor’s note following the story about Lowery’s arrest, Washington Post editor Marty Baron wrote, “The physical risk to Wesley himself is obvious and outrageous.”

It was also illegal.

The arrest and intimidation of journalists for documenting the events in Ferguson is particularly disturbing because it interferes with the ability of the press to hold the government accountable. But actually, anyone—journalist or otherwise—can take a photo of a police officer.

Citizens have the right to take pictures of anything in plain view in a public space, including police officers and federal buildings. Police can not confiscate, demand to view, or delete digital photos. Private property owners can set different rules for recording, but it did not appear from Lowery’s account that the McDonald’s manager was objecting to his video recording.

Some states take issue with video recordings because of their audio element—they claim that the sound recording is akin to surreptitiously eavesdropping on a phone call. (In fact, some states are using this provision to prosecute people who post video clips of police abuse.) However, Missouri is not one of those states. There, you only need the consent of one party to a conversation to hit “record,” and Lowery was that one party.

Police officers frequently ignore these laws. “There is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply,” wrote ACLU policy analyst Jay Stanley in 2011, pointing to a rash of photographer arrests and detentions that year.

For those who want to document police activity without risking arrest, media attorney Richard Goehler has this advice, via Poynter:

The ... thing I would recommend would be whenever possible, make sure that your news gathering efforts are open, visible, and on public property. This will give you the best possible legal position or defense to any claim by a police officer for invasion of privacy (which truly is a meritless claim).

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Olga Khazan is a staff writer at The Atlantic, where she covers health.

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