Recording the Police in North Carolina

The North Carolina Electronic Surveillance Act, Session Laws 1995, c. 407, s. 1, sits at G.S. 15A-286 through 15A-298. G.S. 15A-287(a) opens with the consent clause rather than a blanket ban: a person is guilty of a Class H felony if, without the consent of at least one party to the communication, that person willfully intercepts, endeavors to intercept, or procures another to intercept any wire, oral, or electronic communication. One party is enough, and in a traffic stop or a doorstep encounter that party is you. Nothing in the article requires the officer's agreement, and nothing requires you to announce that a recording is running.

The harder case is recording an encounter between officers and someone else. There the definition controls. G.S. 15A-286(17) provides that oral communication means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, and expressly excludes electronic communication. Two limits fall out of that sentence. The speaker must actually exhibit the expectation, and the circumstances must justify it, so a conversation conducted at ordinary volume on a public street or at a checkpoint does not fit the definition well. And because the article regulates interception of communications, silent video is not what it addresses at all: a recording with no audio captures no wire, oral, or electronic communication to intercept.

G.S. 15A-287(b) then carves out conduct that is not unlawful under the article, and one carve-out is directly useful. Under subdivision (2)b, intercepting a radio communication transmitted by any governmental, law enforcement, civil defense, private land mobile, or public safety communication system, including police and fire, readily available to the general public, is lawful. Scanner monitoring of unencrypted police and fire traffic is therefore expressly permitted by name. Subdivision (b)(1) similarly permits accessing an electronic communication made through a system configured so that it is readily accessible to the general public.

What North Carolina does not have is as important as what it does. There is no section of the General Statutes granting a right to record law enforcement, so there is no North Carolina counterpart to the express statutory rights other states enacted. There is also no minimum-distance or buffer offense: a full-text reading of Chapter 14 turns up no crime keyed to photographing, filming or recording a law enforcement officer, and no provision setting a number of feet a bystander must keep. The statute an officer would actually reach for is G.S. 14-223, which punishes any person who willfully and unlawfully resists, delays or obstructs a public officer in discharging or attempting to discharge an official duty. That is a Class 2 misdemeanor, with a Class I felony tier where the conduct is the proximate cause of a public officer's serious injury and a Class F felony where it causes serious bodily injury, both added by Session Laws 2021-138, s. 19(a). The offense is about interference, not about the camera.

One recording method is separately regulated. G.S. 15A-300.1(b)(2) forbids using an unmanned aircraft system to photograph an individual without consent for the purpose of publishing or otherwise publicly disseminating the photograph, but the same subdivision states it does not apply to newsgathering, newsworthy events, or events or places to which the general public is invited. Subsection (e) gives the subject a civil cause of action and lets that person elect five thousand dollars ($5,000) for each photograph or video published or disseminated in lieu of actual damages, plus costs, attorneys' fees and injunctive relief.

Getting the officer's own footage is a different exercise, governed by G.S. 132-1.4A. Subsection (b) declares that law enforcement recordings are not public records as defined by G.S. 132-1 and not personnel records. Under subsection (c), disclosure, meaning viewing at a time and place the agency chooses, is limited to a person whose image or voice is in the recording and to defined personal representatives, and the requester must make a written request stating the date and approximate time or otherwise identifying the activity with reasonable particularity. Release of an actual copy requires a court order under subsection (g), on a petition in the superior court in a county where any portion of the recording was made, weighed against eight listed standards including whether release is necessary to advance a compelling public interest. Where the recording depicts a death or serious bodily injury, subsections (b1) through (b3) run an expedited track: the requester files a notarized form developed by the Administrative Office of the Courts, the agency must file a petition within three business days with no filing fee, and the court must enter an order within seven business days after an in-camera review. Subsection (j) requires every agency using body-worn or dashboard cameras to adopt a policy for their use.

S. 15A-287(a) is a Class H felony. S. 00) a day for each day of violation or one thousand dollars ($1,000), whichever is higher, plus punitive damages and a reasonable attorneys' fee and litigation costs. S. 15A-296(b), good faith reliance on a court order or on a representation made by the Attorney General or a district attorney is a complete defense to any civil or criminal action under the article. S. 15A-297 states the article's intent to conform to Chapter 119 of the United States Code except where the context indicates a purpose to provide safeguards even more protective of individual privacy and constitutional rights.

S. S. 23(c), with the fine capped at one thousand dollars ($1,000) by subsection (b). S. 4A(b4) makes willfully recording or copying a recording disclosed under the death or serious injury track a Class 1 misdemeanor, and knowingly disseminating such a recording or copy a Class I felony.