Can You Record the Police in South Carolina?

The rise of the smartphone might be the best deterrent to police harassment. This hand-held device has leveled the playing field between criminal defendants and the officers who arrest them. Historically, police have told self-serving stories about what happened during an arrest, and judges believed these stories uncritically without requesting any corroborating evidence.

Today, almost everyone on the sidewalk has a smartphone with the capability to record video. Some bystanders will record an arrest in place, which is how we have video of the arrest of George Floyd.

But is it legal to record police? Many officers will shout, “You can’t record me!” or otherwise block your view or possibly even grab the phone from your hand. Below, William G. Yarborough, Attorney at Law, reviews whether it is legal to record police. Call to speak with a Greenville criminal defense lawyer.

South Carolina Recording Laws

Like other states, South Carolina has laws that regulate the electronic recording of people. South Carolina follows the one-party rule, which means that only one party to a conversation must consent for the recording to be legal.

If you were stopped, you have a legal right to record the encounter because you are a party to the conversation. You can take out your phone and record.

What happens if you are a bystander, though? In that case, one party could consent. So the person being arrested can consent to the recording.

There is also an exception to this law where events are unfolding in public. There is no expectation of privacy when people are out in public, so you should comfortably be able to record an arrest happening on the sidewalk or another public place.

Federal courts have consistently said people have a First Amendment right to record the police in public as they perform official duties. However, you cannot impede or obstruct the police as they go about their jobs.

Why is the Officer Telling Me to Stop Recording?

Police can say all kinds of things. In our experience, the officer is annoyed that you are recording them, so they tell you to stop. They might even claim you have no “right” to record them, which is false. Officers can outright lie to people.

Realize this: if you are being arrested or the arrest is happening in public, then you have a right to record the police.

Is Recording a Police Officer Illegal?

No. However, an officer might claim you are obstructing justice because you are too close to the arrest. It is quite common for officers to tell people “Get back!” or to even block you or sometimes push you out of the way.

Why is the officer doing this? Legally, you cannot obstruct justice or interfere with an arrest. Nonetheless, many officers are screaming “Get back!” or “Step back!” because they don’t want to be recorded. You are probably already 10 feet away—more than enough distance so that you are not interfering with the arrest. Yet the cops will still demand you get even further away.

It is critical to respond to these police tactics in an appropriate way. Some officers might be looking for any reason to arrest you, so they escalate the situation. It is critical to know how to record the police legally in a way that minimizes your risk of arrest or prosecution.

How to Record the Police

Here is how to record the police legally:

Stand a safe distance away from the arrest. Of course, if you are the one being arrested, then there is nowhere to go. Bystanders should never stand too close.
Assess whether you need to step back. An officer might come up to you and shout “Get back!” when they see you are recording their colleagues making an arrest. Try to objectively assess whether you need to move back. Although you have a right to record, you can’t jump into the middle of an arrest and wave your phone around as if that gives you immunity to do what you want.
Do not push a cop. Some officers have made it an art form to step directly in front of someone recording and “accidentally” knock the phone out of the bystander’s hand with their shoulder or arm. You cannot push or punch the officer, because that is a crime.
Avoid escalating the confrontation. An officer who is upset you are recording might try to escalate the situation by baiting you. They might “bump” into you or scream in your face. If you try to obstruct or attack them, then you’ve given them a reason to arrest you.
Realize you might be arrested. Some officers will outright tell you to stop recording, and they might even arrest you if you refuse. Some defense lawyers call this “contempt of cop.” The officer is upset that you have not followed their orders. Realize the law is on your side. You are not expected to follow an illegal command, although the short-term result can be inconvenient if you are arrested.

Defending Your Rights

Were you arrested for recording the police? It is critical to get advice tailored to the facts of your criminal case. Invariably, the police will claim you obstructed justice by standing too closely, and they will say the proof is your refusal to back up when requested.

Of course, the real issue is whether you were, in fact, obstructing the police, not what an officer said. We will use various pieces of evidence, including:

Your video. Remember not to delete it. Tell your attorney if the police seized the phone and are refusing to give it back.
Video from other people. Some arrests draw a crowd, and many people can have their phones out. There is some safety in numbers.
Witness testimony. Other people can testify as to whether you were obstructing the police.

Schedule a Private Consultation

Attorney Yarborough believes everyone should feel free to exercise their constitutional rights with intimidation or fear of harassment. If you were arrested, contact our office to speak with a Greenville criminal defense lawyer. We want to hear your story.