When does recording police apply?

The right to record applies when:Police are performing official duties in a public place — streets, sidewalks, parks, government buildings open to the public.You're not interfering with what they're doing. Maintain a reasonable distance.You're recording from somewhere you lawfully have a right to be.What people get wrong:"Police can tell me to stop." No. The order itself is generally unconstitutional. They can ask you to step back; they can't make you put the phone away."They can delete my video." No. That's destruction of evidence and a clear constitutional violation. Even if they seize the phone, they need a warrant to unlock it under Riley v. California."I have to tell them I'm recording." Federal wiretap law is one-party consent — if you're a participant in or near the conversation, you can record. A handful of states (Massachusetts, Illinois historically, others) have stricter two-party consent rules for private audio, but recording police in public has been protected even in those states.

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Recording Police in South Dakota

Q: What should I do if police try to stop me from filming or take my phone?

Step 1: Keep filming. If they tell you to stop, say calmly: "I have a First Amendment right to record in public." Don't argue. Just keep the camera up.Step 2: Stay back. Far enough that you're not in their way, close enough to actually capture audio. About 10–15 feet is the rule of thumb that most courts have respected.Step 3: Record openly. Visible recording is better protected. Hidden recording can pull in state wiretap laws in two-party-consent states.Step 4: Back it up immediately. Live-stream to a cloud service if you can. Auto-upload to Google Photos or iCloud. Text the video to yourself or a friend. If the phone gets seized or smashed, the cloud copy is what matters.Step 5: If footage is destroyed or your phone seized, document everything. Officer names, badge numbers, patrol car numbers, time, location. File with internal affairs and the DOJ Civil Rights Division at justice.gov/crt. Spoliation of evidence by an officer is itself a § 1983 claim.

Q: What should you NOT do about recording police?

Don't physically interfere. The right to record doesn't mean the right to get in the middle. Reasonable distance, hands off the scene.Don't shout commentary at the officers. Record silently. Yelling escalates everything and gives them a separate justification to detain you for "interference."Don't hand over the phone. If they ask for it, say: "I do not consent to a search of my phone." They need a warrant. Don't physically hold it back if they take it — note who took it and where it went.Don't record in places where you can't legally be. Private property without permission, secured areas of government buildings, active crime scenes inside police perimeters — those have legitimate access restrictions, and the First Amendment doesn't override them.

By Ahmed Alsaedi, Founding Editor

Source: 1st Amendment (free speech and free press). Affirmed by: 1st Circuit (Glik v. Cunniffe, 2011), 3rd Circuit (Fields v. City of Philadelphia, 2017), 5th Circuit (Turner v. Driver, 2017), 7th Circuit (ACLU of Illinois v. Alvarez, 2012), 9th Circuit, 10th Circuit, 11th Circuit.

About this article

Reviewed by the Commoner Law Editorial Team. Sourced from primary statutes (U.S. Code, CFR, state compiled statutes) and official government agency guidance. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards

South Dakota Law

How South Dakota differs from federal law

South Dakota is a one-party consent state for recording:

Under SDCL § 23A-35A-20, only one party to a communication needs to consent to recording
You may record police officers performing their duties in public — protected under the First Amendment
Officers cannot lawfully order you to stop recording or confiscate your device without a warrant
Body camera adoption varies by department
South Dakota has limited civilian oversight mechanisms

Additional Steps in South Dakota

File complaints with the relevant department's internal affairs. ACLU of South Dakota: (605) 332-2508.

Relevant Law: SDCL § 23A-35A-20 (interception of communications). First Amendment, U.S. Constitution.

Federal baseline: Recording Police nationwide

What is this right?

The right to record police officers in public is a First Amendment right, and it's the rare constitutional principle that arrived almost entirely through citizen journalism. Federal appeals courts have affirmed it across the country — the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have all said the same thing: you can film police doing their job in a public place, and police can't order you to stop, can't delete your footage, and can't seize your phone just because you're recording.

The 2011 First Circuit decision in Glik v. Cunniffe was the breakthrough — Simon Glik was arrested for filming Boston officers arresting someone on the Boston Common. The court ruled the arrest was unconstitutional and the City of Boston paid him $170,000. Fields v. City of Philadelphia (2017) extended the rule to the Third Circuit. The combination of body cams, dash cams, and bystander phones has done more in the last decade to shape police accountability than any single statute.

When does it apply?

The right to record applies when:

Police are performing official duties in a public place — streets, sidewalks, parks, government buildings open to the public.
You're not interfering with what they're doing. Maintain a reasonable distance.
You're recording from somewhere you lawfully have a right to be.

What people get wrong:

"Police can tell me to stop." No. The order itself is generally unconstitutional. They can ask you to step back; they can't make you put the phone away.
"They can delete my video." No. That's destruction of evidence and a clear constitutional violation. Even if they seize the phone, they need a warrant to unlock it under Riley v. California.
"I have to tell them I'm recording." Federal wiretap law is one-party consent — if you're a participant in or near the conversation, you can record. A handful of states (Massachusetts, Illinois historically, others) have stricter two-party consent rules for private audio, but recording police in public has been protected even in those states.

What to Do If Police Tell You to Stop Recording

Step 1: Keep filming. If they tell you to stop, say calmly: "I have a First Amendment right to record in public." Don't argue. Just keep the camera up.

Step 2: Stay back. Far enough that you're not in their way, close enough to actually capture audio. About 10–15 feet is the rule of thumb that most courts have respected.

Step 3: Record openly. Visible recording is better protected. Hidden recording can pull in state wiretap laws in two-party-consent states.

Step 4: Back it up immediately. Live-stream to a cloud service if you can. Auto-upload to Google Photos or iCloud. Text the video to yourself or a friend. If the phone gets seized or smashed, the cloud copy is what matters.

Step 5: If footage is destroyed or your phone seized, document everything. Officer names, badge numbers, patrol car numbers, time, location. File with internal affairs and the DOJ Civil Rights Division at justice.gov/crt. Spoliation of evidence by an officer is itself a § 1983 claim.

What should you NOT do?

Don't physically interfere. The right to record doesn't mean the right to get in the middle. Reasonable distance, hands off the scene.

Don't shout commentary at the officers. Record silently. Yelling escalates everything and gives them a separate justification to detain you for "interference."

Don't hand over the phone. If they ask for it, say: "I do not consent to a search of my phone." They need a warrant. Don't physically hold it back if they take it — note who took it and where it went.

Don't record in places where you can't legally be. Private property without permission, secured areas of government buildings, active crime scenes inside police perimeters — those have legitimate access restrictions, and the First Amendment doesn't override them.

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Recording Police in other states

Same topic, different jurisdiction. Pick the one that applies to you.

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Every reference below links to its primary source — the statute book, regulator, or court — and carries a verification date. See our citation methodology for how this works.

South Dakota

StatuteSDCL § 23A-35A-20 — One-Party Consent Recording
Agency guidanceSouth Dakota Attorney General — Know Your Rights
Agency guidanceDOJ — First Amendment Protections for Recording Police

Federal

StatuteFirst Amendment, U.S. Constitution
Constitutional basis for the right to gather news about police acting in public.
Statute42 U.S.C. § 1983 (civil action for deprivation of rights)
Authorizes civil rights suits against state or local officers who interfere with First Amendment recording.
StatuteFederal Wiretap Act, 18 U.S.C. § 2511
One-party-consent federal baseline for audio recording; some states impose stricter two-party rules.
Agency guidanceDOJ Civil Rights Division — Police Misconduct
DOJ portal for filing complaints when officers interfere with constitutional rights including the right to record.