Recording Police in Nebraska: One-Party Consent, No Buffer Law

Section 86-290(1)(a) makes it unlawful to intentionally intercept, endeavor to intercept, or procure another to intercept any wire, electronic or oral communication, and a violation is ordinarily a Class IV felony. Subsection (2)(c) then removes the ordinary citizen case: it is not unlawful for a person not acting under color of law to intercept a wire, electronic or oral communication when that person is a party to the communication, or when one of the parties has given prior consent, unless the interception is for the purpose of committing a criminal or tortious act in violation of the Constitution or laws of the United States or of any state. A driver recording a traffic stop, or a bystander recording an officer who is speaking to that bystander, is a party.

Two definitions do further work for a bystander who is not a party. Section 86-283 defines oral communication as one uttered by a person exhibiting an expectation that it is not subject to interception under circumstances justifying such expectation. An officer giving commands on a public street is not exhibiting such an expectation, and the Nebraska Supreme Court applied that objective test in State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999), holding there is no objective expectation of privacy in face-to-face conversations occurring in jail visiting rooms. Section 86-280 defines intercept as the aural or other acquisition of the contents of a communication through an electronic, mechanical or other device, so silent video that captures no conversation is outside the statute altogether.

Nebraska also expressly protects listening to police radio. Section 86-290(2)(d)(ii)(B) makes it not unlawful to intercept any radio communication transmitted by any governmental, law enforcement, emergency management, private land mobile or public safety communications system, including police and fire, that is readily accessible to the general public. Unencrypted scanner traffic is therefore fair game by statute rather than by tolerance.

Where Nebraska draws the line is conduct, not the camera. Section 28-906 makes it obstructing a peace officer, a Class I misdemeanor, to intentionally obstruct, impair or hinder the enforcement of the penal law or the preservation of the peace by a peace officer acting under colour of official authority, but only by using or threatening to use violence, force, physical interference or an obstacle. The Nebraska Court of Appeals in State v. Owen, 7 Neb. App. 153, 580 N.W.2d 566 (1998), required some affirmative physical act or a threat of one, and the Supreme Court in State v. Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997), held that a mere verbal refusal to provide information is not an obstacle within the section. The later decision in State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020), is annotated on the same page for the proposition that a physical act is not necessary in every case, so the safe reading is that the statute reaches interference with the officer's work rather than the act of filming. The parallel offense at section 28-901, obstructing government operations, expressly does not apply to any means of avoiding compliance with law without affirmative interference with governmental functions.

The officer's own recording is regulated separately. Sections 81-1452 to 81-1454 require every Nebraska law enforcement agency that uses body-worn cameras, including the Nebraska State Patrol, police departments, town marshals and county sheriffs, to adopt a written body-worn camera policy before use, conforming to a model policy developed by the Nebraska Commission on Law Enforcement and Criminal Justice, and to send the commission a copy within three months of adoption and an updated copy each January 1 after a change. Section 81-1454(2) fixes a floor of ninety days for retention of recordings, extended until final judgment where the agency is notified of a criminal or civil proceeding in which the recording may have evidentiary value, until a final determination in a disciplinary proceeding against an agency employee, and until an investigation that has not produced an arrest or prosecution is officially closed or suspended.

An unlawful interception under section 86-290(1) is a Class IV felony, reduced to a Class I misdemeanor for a first offense involving an unscrambled radio communication that is not for a tortious or illegal purpose or for commercial gain, and to a Class III misdemeanor where that communication is the radio portion of a cellular telephone, public land mobile radio or paging service communication. Section 86-297 adds a private right of action: a person whose wire, electronic or oral communication is intercepted, disclosed or intentionally used in violation of the act may recover preliminary and other equitable or declaratory relief, damages, and reasonable attorney's fees and other litigation costs reasonably incurred.

On the other side of the encounter, obstructing a peace officer under section 28-906 and obstructing government operations under section 28-901 are both Class I misdemeanors, punishable under section 28-106 by up to one year imprisonment, a one thousand dollar fine, or both, and section 28-904 covers resisting arrest. Nebraska created no offense of recording, no seizure power over a phone used to record, and no minimum distance, so an order to stop filming or to hand over a phone has no statutory basis in the Nebraska Revised Statutes.