A US Court of Appeals in Massachusetts has said that arresting someone for filming the police is a constitutional violation.
A guy, after we answered in the affirmative as to whether his phone was recording audio, was charged with violation of the wiretap statute, disturbing the peace, and aiding in the escape of a prisoner. The last charge was particularly absurd. But more importantly the court said that it's not a wiretap if it's not secret . The court also said the arrest violated the fourth amendment and did not give the officers qualified immunity.
People still get arrested for taking pictures and videos of police. But I suspect this will happen less and less, especially when cops lose their immunity after making bad arrests (of the guy taking pictures). Besides, given advances in technology, attempts to prevent people from taking pictures and videos is becoming more and more a Sisyphean task.
As a police officer, I did no not love being filmed. It's not that I had something to hide, it's that I don't want a video taken out of context. And sometimes police officers do have to use ugly force. Sometimes the public and the media really does not understand.
A lot of "brutality" videos you can see on youtube show completely justified force (especially when trying to get somebody's hands from under them to behind their back). So if I'm using justified force, I'd prefer not to see my tough arrest on the evening news used as an "example" of brutality.
I understand and even agree with all the reasons you don't want to be recorded. But... you can't always get what you want. I do not want a society in which unaccountable police arrest people for taking their picture. Recording police (if you're not interfering) should be considered a constitutional right.
Of course phones and cameras, especially when somebody is resisting arrest, can still be seized as evidence. If somebody is resisting arrest, a recording is good evidence. And having to say goodbye to your phone for months might serve as a bit of a deterrent to whipping it out and pressing record. But potential police use of this trick will be tempered by a natural desire to avoid extra paperwork.
What's interesting is that this debate makes some peoples' head explode as it highlights the conservative divide between lip-service to small government and an authoritarian impulse. It makes me think once again of George Orwell's precient line that the "real division is not between conservatives and revolutionaries but between authoritarians and libertarians."