Your right to record police in California

Penal Code § 148(a)(1) is the charge that officers historically used against people filming them. It punishes willfully resisting, delaying, or obstructing a public officer, peace officer, or an emergency medical technician as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge a duty of office or employment, by a fine not exceeding $1,000, imprisonment in a county jail not to exceed one year, or both. Subdivision (g) removes recording from the reach of that offense. It is written in three parts: the act of recording is not in and of itself a violation of subdivision (a), it is not reasonable suspicion to detain, and it is not probable cause to arrest. The two conditions are alternatives, and either one is enough: the officer is in a public place, or the person recording is in a place they have the right to be.

The words "in and of itself" do real work. Section 148(g) does not immunize conduct beyond the recording. If a person physically interposes themselves, ignores a lawful order to move back from an active scene, or otherwise delays the officer independently of holding a camera, subdivision (a) is still available to the prosecutor. What the subdivision forecloses is the recording being counted as the obstruction, or being used as the justification for the detention that then produces the charge.

California’s two-party consent statute is the other worry people raise, and it does not apply here. Penal Code § 632(a) punishes intentionally recording a confidential communication without the consent of all parties, by a fine not exceeding $2,500 per violation, imprisonment in a county jail not exceeding one year or in the state prison, or both, rising to a fine not exceeding $10,000 per violation for a person previously convicted under § 632 or under §§ 631, 632.5, 632.6, 632.7 or 636. But § 632(c) defines a confidential communication to exclude a communication made in a public gathering, in a legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties may reasonably expect that the communication may be overheard or recorded. A roadside stop, an arrest on a sidewalk, or an officer speaking at a public counter falls in that exclusion. Section 632(b) also expressly excludes from the definition of "person" an individual known by all parties to be overhearing or recording, so openly holding up a phone puts you outside the statute a second way.

Section 148 keeps several teeth that recording does not blunt. Subdivision (a)(2) punishes knowingly and maliciously interrupting, disrupting, impeding, or otherwise interfering with the transmission of a communication over a public safety radio frequency, by a fine not exceeding $1,000, a county jail term not exceeding one year, or both. Subdivisions (b), (c) and (d) escalate sharply where a weapon or firearm is taken from an officer during a § 148(a) offense, with (c) and (d) reaching imprisonment under Penal Code § 1170(h). Subdivision (e) bars conviction under (a) in addition to (b), (c) or (d) where the resistance and the taking were committed against the same officer, while allowing multiple convictions when more than one officer is a victim. Subdivision (f) removes the protection where the officer is disarmed while engaged in a criminal act.

If an officer seizes your phone, deletes footage, or arrests you for recording, Civil Code § 52.1, the Bane Act, is the California remedy. Under § 52.1(c) an individual whose exercise of rights secured by the Constitution or laws of the United States or of California has been interfered with by threat, intimidation, or coercion may sue in their own name for damages including damages under Civil Code § 52, for injunctive relief, and for declaratory relief aimed at eliminating a pattern or practice. Under § 52.1(b) the Attorney General, a district attorney, or a city attorney may bring the action in the name of the people and request a civil penalty of $25,000, assessed individually against each person found to have violated the section and awarded to each individual whose rights were violated. Suit may be filed in the superior court for the county where the conduct occurred or where the defendant resides or has a place of business.

Recording alone is not a violation of anything in California, and § 148(g) says so in terms. The exposure runs the other way. 1(b). 77, and the clerk or the plaintiff must deliver two copies to each local law enforcement agency having jurisdiction by the close of the business day the order was granted. What can still be charged is separate obstructive conduct under Penal Code § 148(a)(1), punishable by a fine not exceeding $1,000, up to one year in county jail, or both, and interference with a public safety radio transmission under § 148(a)(2), carrying the same maximum.

Recording a genuinely confidential communication, as opposed to a police encounter in public, remains punishable under Penal Code § 632(a) by a fine up to $2,500 per violation and up to a year in county jail, and evidence obtained that way is inadmissible under § 632(d).