I originally wrote this post in 2017 after a video was posted of an Uber driver, who was also a lawyer, was pulled over and told he could not record the police officer. The police officer told the lawyer to turn it off or he’d take him to jail. The police officer also told the lawyer that it was a new law that was recently passed. None of these statements made by the police officer, however, were true.
I decided an update was due after events unfolded last week with the arrest of Mr. Unique Occena by the Polk County Sheriff’s Office after he video taped the arrest of Mr. Fernando Jiminez. The investigation is still ongoing as to what exactly happened. It does appear that Mr. Occena had an outstanding arrest warrant prior to posting the video to social media. It also appears that perhaps the inflaming video caused PCSO to search for Mr. Occeana more diligently. Regardless, as the public and citizens of Polk County, we all want answers.
I previously wrote that “the lesson here is that the police can lie to you at a traffic stop.” I will update this post to say that law enforcement can lie at any time during an investigation. It is important for you to know your rights and remain calm and respectful to prevent unnecessary charges, an arrest, or something worse.
In Florida, you can videotape the police, if they are on duty, in public, and you are not interfering with their ability to do their job. The Eleventh Circuit Court of Appeals has ruled that people have a First Amendment right to record police in public unless they infringe on an investigation. There is one gray area, however, and that is with audio. State law requires consent for audio recordings when there is a reasonable expectation of privacy. Most experts agree that this requirement pertains to wiretapping and does not apply to the videotaping of police officers that is permitted while they are on duty and in public. But because there has not been a specific ruling for this issue, the Florida Chapter of the ACLU recommends that if an officer tells you not to record audio, turn off the audio.
It is important to remember that just because the law allows you to videotape the police, this does not mean the police will be happy about it or cooperative. They may even harass or lie to you, as the officer did to the lawyer in the video above. It is imperative that you remain calm and respectful throughout the encounter. You want to to show that you are not a threat. The officer will probably ask you what you are doing or why you are recording him or her. It is best to respond with something such as, “Officer, it is my understanding of Florida law that I am permitted to record on duty police officers in public areas.” If your immediate response is aggressive, you will likely end up on your stomach in handcuffs or worse.
It is also important that you keep a safe distance and do not make any sudden movements. Remember that the law allows you to record only if you do not interfere with the officer’s job. Police officers are performing a dangerous jobs and do deal with very real threats. If you know your rights, know the law, and remain respectful, you can fully exercise your rights with success.
It will be interesting to see what happens with both Mr. Jiminez’s and Mr. Occena’s cases. I will follow them closely. The video, at first watch, does not seem to be in line with the arrest affidavit…
If you need legal advice on a criminal or family law matter, contact an experienced attorney who can help. Call Heather Bryan Law at 863-825-5309 for your consultation.
Heather Bryan Law, P.A.
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