Recording Police in South Dakota: No Right-to-Record Statute, but Obstruction Requires Force and Audio Runs on One-Party Consent

Start with the negative and prove it properly. Searching South Dakota's crimes title, its law enforcement title, its criminal procedure title and its motor vehicle title for the phrasings drafters use returns nothing: no record a law enforcement activity provision, no photograph or record protection for bystanders, no safe harbour saying that recording does not by itself constitute interference, and no minimum-distance offense measured in feet. South Dakota simply has not legislated on the subject in either direction. That cuts both ways, and the second half of it is the useful half.

SDCL 22-11-6 is where a bystander recording arrest would be charged if anywhere, and its threshold is physical. The section reaches any person who, by using or threatening to use violence, force, or physical interference or obstacle, intentionally obstructs, impairs, or hinders the enforcement of the criminal laws or the preservation of the peace by a law enforcement officer or jailer acting under color of authority. Every route into the offense is a physical one. Filming from the sidewalk supplies none of them, and the section carries no catch-all for conduct that annoys or distracts. SDCL 22-11-4, resisting arrest, is drawn the same way, requiring physical force or violence or other means creating a substantial risk of physical injury. South Dakota's answer to the recording question is therefore built out of what the obstruction offense does not reach rather than out of a right the Legislature granted.

Audio is the part that carries real risk, and it turns on SDCL 23A-35A-20. That section makes a person guilty of a Class 5 felony who is not a sender or receiver of a communication recording it without the consent of a sender or receiver, and who is not a person present during a conversation or discussion recording it without the consent of a party to it. The categories placed outside the offense are what make South Dakota a one-party-consent state: a person who is themselves a party to the exchange, or who has the consent of a party, is not within the felony. A driver or a subject of a stop recording their own conversation with an officer is a party to that conversation.

Two definitions in SDCL 23A-35A-1 narrow the felony further. An eavesdropping device is defined so as to exclude equipment furnished to a subscriber by a communications common carrier in the ordinary course of business and used in the ordinary course of business, and to exclude a hearing aid. An oral communication is defined as one uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. An officer giving commands on a public street is not exhibiting such an expectation, and the circumstances would not justify one. SDCL 23A-35A-21 lists the chapter's exemptions, which are limited to court-ordered interception, common-carrier operations, switchboard functions, responses to subpoenas or lawful demands, and carrier assistance to authorized interception, so none of them is doing the work here; the exclusions inside 23A-35A-20 are.

The general eavesdropping section, SDCL 22-21-1, does not reach street recording either. It creates a Class 1 misdemeanor only for trespassing on property with intent to subject anyone to eavesdropping or other surveillance in a private place, or for installing a recording, photographing, amplifying or broadcasting device in any private place without the consent of the persons entitled to privacy there. A public street, a public building lobby or your own vehicle is not a private place, and holding a phone is not installing a device. The section also expressly disapplies subdivision (2) to law enforcement officers and to those acting under the direction of an officer while performing lawful duties, which is a one-way exemption running to officers, not to the public.

Two further sections define the edges. SDCL 22-11-9 makes it a Class 1 misdemeanor to make a report to law enforcement authorities of a crime or incident knowing it did not occur, or to furnish information relating to an offense knowing that information is false, which is where a manipulated or falsely captioned recording becomes an offense. And SDCL 22-11-39 makes disarming a law enforcement officer a felony, a reminder that reaching toward an officer while filming is a different order of conduct from filming.

Finally, note the one place South Dakota did legislate about vehicle video, because it shows the Legislature acting deliberately elsewhere. SDCL 32-32-17, added by SL 2025, ch 131, provides that a recording from a school bus external video system capable of recording traffic activity around the bus is discoverable and may be entered into evidence in any civil or criminal action. No comparable admissibility provision exists for citizen recordings of police, so such footage is handled on the ordinary rules of evidence.

Nothing happens to a person who records lawfully, because no offense attaches to the recording itself. The exposure comes from what a person does around it. Obstructing a law enforcement officer under SDCL 22-11-6 is a Class 1 misdemeanor, which SDCL 22-6-2 sets at up to one year in a county jail or a two thousand dollar fine, or both, and the state must prove violence, a threat of violence, physical interference, or an obstacle. Resisting arrest under SDCL 22-11-4 carries the same grade. Capturing audio outside the categories excluded by SDCL 23A-35A-20 is a Class 5 felony, which under SDCL 22-6-1 carries up to five years imprisonment in a state correctional facility and a fine of up to ten thousand dollars, so the audio question is by far the most serious in this area.

Eavesdropping by trespass or by installing a device in a private place under SDCL 22-21-1 is a Class 1 misdemeanor. SDCL 22-11-5 provides that an unlawful arrest is not a defence where the officer acted under color of authority with reasonable force, so the answer to an unlawful order to stop filming is to comply and litigate, not to resist. South Dakota law gives no statutory remedy, damages action or fee-shifting provision to a person whose recording is stopped or whose phone is seized; the remedy is a suppression motion or a federal civil rights claim, neither of which is created by the South Dakota Codified Laws.