D.C. Police Order Bars Officers From Stopping You Recording Them

Start with the wiretap question, because that is what makes some jurisdictions difficult. D.C. Code § 23-542(a) prohibits willfully intercepting a wire or oral communication, with a penalty of up to five years and a fine under § 22-3571.01. But § 23-542(b)(3) exempts a person not acting under color of law who intercepts a communication where that person is a party to it, or where one of the parties has given prior consent, unless the interception is for the purpose of committing a criminal or tortious act or any other injurious act. That one-party consent rule means a District resident recording their own encounter with an officer is not intercepting anything unlawfully. The definition in § 23-541(2) narrows the exposure further: an "oral communication" is one uttered by a person exhibiting an expectation that it is not subject to interception under circumstances justifying that expectation, which an officer speaking to a driver on a public street does not have.

The operative instrument is MPD General Order OPS-304.19, "Video Recording, Photographing, and Audio Recording of Metropolitan Police Department Members by the Public". Its policy statement recognises that the public has a First Amendment right to video record, photograph and audio record MPD members conducting official business or acting in an official capacity in any public space, unless the recording interferes with police activity. Regulation B places a bystander on the same footing as accredited media wherever the bystander has a legal right to be, and it extends that protection beyond parks, sidewalks, streets and protest sites to a person's own home or business, common areas of public and private buildings, and any other facility where the person is lawfully present. It does not entitle anyone to cross a police line, enter a closed area, or step into a crime scene.

Regulation C is the list drivers and bystanders should know by heart. As long as the recording takes place where the person has a legal right to be and does not interfere with a member's safety, officers may not tell people that recording is not allowed, requires a permit, or requires the officer's consent, and members shall not order the person to cease, demand that person's identification, demand a reason for recording, detain that person, intentionally block or obstruct cameras, or in any way threaten, intimidate or otherwise discourage recording. An accompanying note reminds officers that there is no justification for ordering someone to stop or requiring them to answer questions unless the officer reasonably suspects a crime.

Regulation D defines the limit. Interference is conduct, threats, actions or activities that prevent or hinder officers from doing their job. If a recorder is standing somewhere that impedes officer or public safety, a member may direct the person to move, but the order paragraphs D.1 and D.2 both end the same way: the member shall not order the person to stop photographing or recording. Paragraph D.3 states that recording from a safe distance without obstructing conduct does not constitute interference, and D.4 protects verbal criticism of the police activity being observed so long as it does not jeopardise anyone's safety or incite unlawful conduct.

The device itself is protected too. Under Regulation E an officer with probable cause to believe a recording holds evidence of a crime must first ask the person to hand the device over voluntarily or to email or text the material to the officer's official account, and consent must be voluntary and never coerced. Warrantless seizure requires the Watch Commander of the Criminal Investigations Division to be physically present at the scene before any significant action, and to find that exigent circumstances justify it; any such seizure is a temporary restraint only, until a warrant can be obtained. Regulation F requires a search warrant before viewing seized photographs or recordings absent exigency. Regulation G is absolute: members shall not, under any circumstances, erase or delete or instruct anyone else to erase or delete recorded images or sounds from a device in a non-member's possession or one that has been surrendered or seized.

On the criminal side, the District narrowed its own interference offences in 2016. The Neighborhood Engagement Achieves Results Amendment Act of 2016, D.C. Law 21-125, rewrote § 22-405 so that the misdemeanor now requires an assault on a law enforcement officer, punishable by up to 6 months, and moved resisting into a separate offence at § 22-405.01(b) that requires intentionally resisting an arrest or preventing an officer from making one. Merely standing back and filming fits neither. The old catch-all at § 5-117.04 is effectively dead: it punishes willful interference only by "the persons named in § 5-117.01", and § 5-117.01 has been repealed.

19 binds officers rather than the public, so a breach is a disciplinary matter handled through the Metropolitan Police Department and the independent Office of Police Complaints rather than a fine on the officer. 01(b) covers intentionally resisting or preventing an arrest with the same 6-month misdemeanor exposure. Obstructing a street or sidewalk after being told to stop is a separate misdemeanor under § 22-1307, with up to 90 days. Unlawful interception under § 23-542(a) carries up to five years, but § 23-542(b)(3) takes a party to the conversation outside it.

If an officer seizes a device, § 23-542 has nothing to say; the controls are in Regulation E of the General Order and, ultimately, the warrant requirement.