Delaware Has No Right-to-Record Statute, But Recording Is Lawful

Start with what Delaware does not have. There is no Delaware analogue to a section granting a right to photograph or record law-enforcement activity, and the phrases such a statute would use do not appear in the Delaware Code. The protection therefore has to be read out of the interception chapter, chapter 24 of Title 11, and out of the general privacy offence at 11 Del. C. § 1335.

Section 2402(a)(1) prohibits intentionally intercepting, endeavouring to intercept, or procuring another to intercept, any wire, oral or electronic communication, and § 2402(b) grades that as a class E felony with a fine not exceeding $10,000. Section 2402(c) then lists what is nonetheless lawful, and paragraph (4) is the one that matters to a person holding a phone: it is lawful for a person to intercept where that person is a party to the communication, or where one of the parties has given prior consent, unless the interception is for the purpose of committing a criminal or tortious act. A driver recording their own traffic stop is a party. The second route out is the definition. Section 2401(13) defines an oral communication as one "uttered by a person made while exhibiting an expectation that such communication is not subject to interception and under circumstances justifying such expectation." An officer speaking to a person on a public street is not exhibiting such an expectation, and 11 Del. C. § 1337(b) defines a public place to include highways, transportation facilities, parks, playgrounds and the hallways and lobbies of apartment houses and hotels. Section 1337(a) defines a private place, by contrast, as one where a person may reasonably expect to be safe from casual or hostile intrusion or surveillance, expressly excluding any place to which the public or a substantial group has access.

The general privacy offence points the same way and is worth stating precisely, because Delaware is sometimes described as an all-party state on the strength of it. 11 Del. C. § 1335(a)(4) makes it a violation of privacy, a class A misdemeanour, to intercept "without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation." The controlling words are "communicating privately." Section 1335(a)(1) and (a)(3) likewise turn on a private place. So both of Delaware's recording offences are gated on privacy rather than on the mere fact of recording, and a police encounter in a public place clears both gates.

The limits on a person recording are behavioural, not technological. 11 Del. C. § 1257(b) makes it a class A misdemeanour intentionally to prevent or attempt to prevent a peace officer from effecting an arrest or detention, or intentionally to flee from one, and § 1257(a) raises that to a class G felony where force or violence is used or the officer is injured. 11 Del. C. § 1244A(a) reaches a person who "corruptly" obstructs or impedes a law-enforcement investigation, and § 1244A(c)(1) defines corruptly as acting with an improper purpose, including making a false or misleading statement or withholding, concealing, altering or destroying information; § 1244A(c)(2) defines an obstacle as a threat, act or physical object intended to delay or interfere. Filming from a distance is neither corrupt nor an obstacle. Delaware has enacted no buffer-zone statute setting a minimum distance from an officer, unlike states that added a stand-back offence in 2024.

Drones are the exception, and the prohibition is unusually broad. 11 Del. C. § 1334(b)(3) makes it unlawful knowingly to operate, direct or program an unmanned aircraft system to fly over any incident where first responders are actively engaged in response or in air, water, vehicular, ground or specialized transport. Section 1334(a)(2) defines a first responder to include federal, state and local law-enforcement officers, fire and emergency medical services personnel, hazardous materials response team members, 911 dispatchers, and anyone responsible for the protection and preservation of life directed to respond to an incident that could result in death or serious injury. The exemptions in § 1334(c) cover a system used for law enforcement purposes, one flown with the property owner's written permission, one operated by an institution of higher education for educational purposes, and one used commercially or otherwise where the operator is authorised by the Federal Aviation Administration. Section 1334(b)(1) separately bans flight over any event with more than 1500 people in attendance.

Nothing happens to a lawful recording, because § 2402(c)(4) removes it from the offence. Where the exemption does not apply, the exposure is severe: § 2402(b) makes an interception in violation of § 2402(a) a class E felony with a fine of up to $10,000, and 11 Del. § 1335 makes violation of privacy a class A misdemeanour, rising to a class G felony in the circumstances the section specifies. A class A misdemeanour under 11 Del. § 4206(a) carries up to 1 year at Level V and a fine up to $2,300.

For conduct at the scene rather than the recording itself, resisting arrest under § 1257(b) is a class A misdemeanour and resisting with force or violence under § 1257(a) is a class G felony; obstruction of justice under 11 Del. § 1244A ranges from a class A misdemeanour to a class D felony where force, violence or physical interference is used, and § 1244A(e) gives the Superior Court exclusive jurisdiction over it. Drone offences under § 1334(d) are an unclassified misdemeanour for a first offence and a class B misdemeanour for a second or subsequent offence, rising to a class A misdemeanour where physical injury to a person or damage to property results. Section 1334(e) preempts county and municipal drone ordinances entirely, so the state rule is the only one a Delaware operator has to read.