Recording Police
Written in plain language for general understanding. This is educational content, not legal advice. Based on federal statutes and official sources.
What is this right?
You have the right to record police officers performing their duties in public spaces. This right comes from the 1st Amendment and has been affirmed by federal appeals courts across the country.
You can use your phone to record traffic stops, arrests, protests, and any police activity happening in public. Police cannot order you to stop recording, delete your footage, or seize your phone just because you're filming them.
When does it apply?
This right applies when:
- Police are performing official duties in a public place (streets, sidewalks, parks, government buildings open to the public)
- You are not interfering with police operations — you must maintain a reasonable distance
- You are recording from a place where you have a lawful right to be
Common misconceptions:
- "Police can tell me to stop recording" — No. Recording police in public is a constitutionally protected activity. An order to stop recording is generally unlawful.
- "Police can delete my video" — No. Deleting footage is destruction of evidence and a violation of your rights. Even if they seize your phone, they need a warrant to access it.
- "I need to tell police I'm recording" — In most states, you don't need permission to record someone in public. But some states have two-party consent laws for audio — know your state's rules.
What should you do?
Step 1: Keep recording. If police tell you to stop, calmly say: "I have a First Amendment right to record in public." Continue filming.
Step 2: Maintain a reasonable distance. Stay far enough away that you're not physically interfering with what police are doing, but close enough to capture what's happening.
Step 3: Don't hide your recording. Openly visible recording is better protected legally. Secret recording may implicate wiretapping laws in some states.
Step 4: Back up your footage immediately. Upload to the cloud (Google Drive, iCloud, Dropbox) or text/email the video to yourself. If your phone is seized, the cloud copy is safe.
Step 5: If police seize your phone or delete footage, document the officers involved (badge numbers, patrol car numbers) and file a complaint with the department's internal affairs division.
What should you NOT do?
Don't interfere. Your right to record does not include the right to get in the way. Stay at a reasonable distance and don't physically insert yourself into the situation.
Don't provoke. Record silently or with minimal commentary. Shouting at officers while recording may escalate the situation.
Don't hand over your phone. If police ask for your phone, say: "I do not consent to a search of my phone." They need a warrant to access it.
Don't record in places where you have no right to be. Private property, secured areas of government buildings, and active crime scenes may have legitimate restrictions.
How Delaware differs from federal law
Delaware is a two-party consent state for recording, with important exceptions:
- Del. Code tit. 11, § 2402 requires all parties to consent to recording of communications
- However, recording police officers performing duties in public is protected under the First Amendment — public police activity is not a private communication
- Officers cannot lawfully order you to stop recording public police activity or confiscate your device without a warrant
- Delaware enacted body camera legislation — state and local police have body camera programs
- Be cautious about recording private police interactions where there is an expectation of privacy
Additional Steps in Delaware
File complaints with the relevant department's internal affairs. ACLU of Delaware: (302) 654-5326.
Relevant Law: Del. Code tit. 11, § 2402 (wiretapping). First Amendment, U.S. Constitution.
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