[This blog was originally posted on 9/27/09.  Since then I've done more research and found that, even though there is a very good argument (........http://www.law.suffolk.edu/highlights/stuorgs/lawreview/documents/Skehill_Note_Final.pdf ....) that it should always be legal - sometimes courts, even appellate courts, have held in favor of cops' privacy rights over the citizens' 1st and 4th Amendment rights.  This is especially true in various state electronic wiretapping laws that do not have an exception based on a "reasonable expectation of privacy" provision.  Also, some states (like Wisconsin) only require one-party consent (you) to surreptitiously record, other states require all parties to consent.  Lastly, based on the construction of various wiretapping laws, it matters whether, or not, you are openly videotaping the police, or you are doing it surreptitiously.  You are on safer legal ground if you videotape the police openly, rather than surreptitiously.  Some state courts have said that to surreptitiously videotape the police is illegal, but to publish the recording (on YouTube, for instance) is legal.  Go figure.

Modifying the statutory language of Anti-Wiretapping Statutes to include an exception to the all-party consent requirement when a party has no reasonable expectation of privacy would bring those states lacking such an exception in line with the majority of states that allow for the surreptitious recordings of on-duty police officers.

So, what should you do?  Given that the law is somewhat unsettled on the legality of surreptitiously, or even openly, videotaping the police, you should contact a lawyer or an organization like the local ACLU chapter in your state BEFORE videotaping the police.] 

Police nowadays will often arrest people who videotape them, claiming that to videotape them constitutes harassment and/or felony wiretapping.  Prosecutors often play along with these false charges and prosecute these cases.  Some trial judges even support this unconstitutional action, however most throw the cases out of court. 

So long as you do not interfere with the police most courts have held that it is your Constitutional right under the 1st and 4th amendments to videotape the police.  If you are arrested for videotaping the police you may have a viable legal action under Sec. 1983 of the federal statutes - which includes legal fees, compensatory damages and punitive damages.

The law of the land is found in the following case, which says in partThe following case is representative of most courts holding on videotaping the police: "Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence, as it did in this case. In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants on October 23, 2002. See Smith v. City of ..Cumming...., 212 F.3d 1332, 1333 (11th Cir. 2000); see also ..Stanley.., 394 .U.S.at 564 (1969); Whiteland Woods, L.P. v. ....Township.. of  ..West Whiteland...., 193 F.3d 177, 180 (3d Cir. 1999).

The Constitutional principles involved in this action are well established. We are dealing with a "close case" or with the split-second decisions police officers often have to make in the heat of a dangerous or potentially dangerous confrontation.  There is no justification for the actions of defendants [police] in violating Robinson's right to free speech and his right to be secure in his person against an unreasonable seizure."

http://www.paed.uscourts.gov/documents/opinions/05D0847P.pdf