Can You Legally Audio Record Police During a Stop?

CRIMINAL LAW FORUM
By: Mark Eiglarsh

This really happened, recently. Brandy Burning, a single mom, was unlawfully driving in the HOV lane. That caused Broward County, Florida sheriff Lt. William O’Brien to pull her over. After some brief conversation, Burning then said the following to the deputy, “Oh, I forgot to tell you I was recording our conversation.” O’Brien then informs her that she has committed a felony and demands the cellphone. Burning refuses. O’Brien then climbs into the car from the passenger side and attempts to forcefully take her phone. Burning was arrested for the traffic infraction and resisting arrest. She wasn’t charged with any crimes related to the recording. Ultimately, prosecutors dropped all charges. Now, Burning plans on filing a law suit, alleging battery, false arrest and false imprisonment. She calls her experience “traumatic,” after spending a night in jail and sustaining bruises and scrapes during the incident.

This case raises two important issues. First, was the recording of her police encounter unlawful? Second, will she win her false arrest/civil lawsuit?

Florida is known as a “two party consent state.” That means, in order to lawfully audio record another, one must have the other person’s consent. In fact, Florida statute 934.03 makes it a felony to audio record another without their approval. On the other hand, statute 934.02(2) permits a person to record public events where the one recorded does not have a “reasonable expectation of privacy.” Both Florida State courts and Federal courts have repeatedly ruled that on-duty police officers who are performing their duties in public do not have a reasonable expectation of privacy. So what does this mean? Well, it’s mirky. Cops have a statute to point to upon which to justify a felony arrest. On the other hand, one can argue that it appears the law permits one to record a cop in public as long as that person isn’t obstructing the officer in any way, because the officer has no expectation of privacy.

What do I advise? Until the Florida Supreme Court rules on this issue, and/or until cops stop arresting people for this, I instruct folks to error on the side of caution and not record. If, on the other hand, you’re one of the few who doesn’t mind spending a dozen or more hours in jail for what you may correctly feel is lawful conduct, then go for it. While you’re sitting in that hell hole, take comfort in knowing that your charges will most likely be dropped by prosecutors.

The next question is whether Brandy Burning will prevail in her false arrest/civil law suit. The answer is “probably not.” First, as I’ve stated publicly on numerous occasions, “If it was easy to sue law enforcement, they’d all be bankrupt.” The law makes it very difficult to win a civil suit against “cops behaving badly.” Florida statute 768.28 makes it clear that on duty cops are immune to lawsuits unless they acted in “bad faith, or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” The reality is that it is extremely challenging to prove that a cop acted with a “malicious purpose” or “willful and wanton disregard.” Even if it can be proven that an arrest was unlawful and thoroughly unjustified, a litigant shouldn’t expect to win the lawsuit. Courts have ruled that an unlawful arrest doesn’t necessarily equal “malicious purpose” and/or “willful and wanton disregard.” Furthermore, let’s just say it can be proven that the officer acted with “malicious purpose” or “wanton and willful disregard,” Florida statute 787.02 precludes punitive damages and sets a cap on damages that can be recovered. That makes it very difficult to even find a top notched attorney to pursue the case.

In federal court, a person suing must show, under 42 USC 1983, that the officer violated “clearly established constitutional rights of which a reasonable person would have known.” Arguing that audio recording a police officer is a clearly established constitutional right is a tough sell. Additionally, it will cost the plaintiff a lot of money to pursue that argument. That’s not to say that it won’t work. It’s just a very costly and challenging endeavor.

In applying the law to Brandy Burning’s civil lawsuit, I believe the first hurdle she might not get over is in trying to prove that her arrest was unlawful. The officer will point to the felony statute as justification for her arrest, alleging that he didn’t give her permission to record him. Even if her arrest was unlawful, she’s going to have an even tougher hurdle to get over in proving that that the officer’s actions were solely the result of “malicious purpose” or “willful and wanton disregard.”

Unfortunately, I don’t expect cops to stop arresting people who audio record without permission. Fortunately, I don’t expect prosecutors to stop dropping charges stemming from those arrests. Until this all get’s resolved by the Florida Supreme Court, as I expect it will in the not so distant future, I think it’s best to avoid the pokey by keeping your recording devices on “off” during police stops.