In Arkansas, can a citizen record a police officer on duty, and where do you complain when an officer or official breaks the law?
Apply this to your situation
This page answers the general question as of 2014. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Representative Karen Hopper asked Attorney General Dustin McDaniel two big questions on behalf of a constituent: do Arkansas police agencies have to write policies that respect specific traffic statutes (tint law, emergency-vehicle rules, speed limits), and where does a citizen turn when an officer or elected official breaks the law?
The AG's response was largely procedural. He declined to give specific legal advice on whether any particular instance of recording an officer was protected, explaining that as a public official he could not engage in the private practice of law. As a general matter, he said police agencies are obligated to comply with the laws but are not required to formally enact rules that "adhere to and do not infringe upon" specific statutes. Citizens have a qualified First Amendment right to record police in public, but only a court can decide in a given case whether that right was compromised, and recording cannot "obstruct a governmental function" under A.C.A. § 5-54-102. As for complaints, a citizen can file with the police department itself or the local prosecutor, who can refer the matter to the Arkansas State Police for investigation.
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: Did the Arkansas AG say it is legal to videotape a police officer on duty?
A: The AG declined to answer that question categorically. He noted that First Amendment rights "might be implicated" and cited federal cases recognizing a qualified right to record officers in public, including Glik v. Cunniffe and ACLU of Illinois v. Alvarez. He added that only a finder of fact could decide whether a specific instance of recording was protected.
Q: What is the limit on the right to record under the opinion?
A: A citizen has no right to engage in what the constituent called "positive interference with a governmental function." Obstructing governmental functions is a separate offense under A.C.A. § 5-54-102. The AG cited that statute as setting the outer boundary of any recording right.
Q: Where did the AG tell citizens to file a misconduct complaint about a police officer?
A: Either with the police department itself or with the local prosecuting attorney. The prosecutor can then ask the director's office at the Arkansas State Police to investigate. The opinion quoted the ASP Criminal Investigation Division Operations Manual on this referral procedure.
Q: Are police agencies required to adopt written policies that match specific statutes like the tint law or speed-limit exceptions?
A: No. The AG said law enforcement agencies are "clearly charged with upholding the laws" but are "under no duty" to formally enact rules or regulations matching the specific statutes the constituent listed.
Q: Why did the AG decline to answer the constituent's questions more directly?
A: A.C.A. § 25-16-701 prohibits the Attorney General from engaging in the private practice of law. Specific advice tied to a particular factual dispute would cross that line. The AG repeatedly noted he could only set out general legal principles, not adjudicate facts.
Q: What is the offense of "filing a false report with a law enforcement agency"?
A: A.C.A. § 5-54-122 makes it a Class A misdemeanor to file a false report with a law enforcement agency or prosecuting attorney's office alleging criminal activity by another individual. The opinion noted this applies equally to public officials.
Background and statutory framework
The opinion sits at the intersection of three things: the limits of the Attorney General's advisory role, the qualified First Amendment right to record on-duty officers, and the channels available for reporting alleged misconduct by police and other officials.
On the AG's role: A.C.A. § 25-16-701 bars the Attorney General from the private practice of law. Formal AG opinions answer general legal questions submitted by legislators and other officials. They cannot adjudicate disputes between identifiable parties or supply individualized legal advice. The AG repeatedly invoked this limit in his response to Representative Hopper, declining to opine on the specific incidents that appeared to motivate the request.
On the duty of police agencies: Arkansas law charges municipal chiefs of police and officers to "diligently and faithfully" enforce state and local laws (A.C.A. § 14-52-203(b)). The AG distinguished that general duty from any obligation to formally write down rules implementing each specific statute. Nothing in the cited tint, emergency-vehicle, or speed-limit statutes (A.C.A. §§ 27-37-306, 27-51-202, 27-51-204) commands rulemaking.
On recording police: federal courts have recognized a qualified First Amendment right to record on-duty officers in public. The AG cited Glik v. Cunniffe, 653 F.3d 78 (1st Cir. 2011), ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), and Robinson v. Fetterman, 378 F.Supp.2d 534 (E.D. Pa. 2005). The right is qualified by time, place, and manner restrictions and by the prohibition on obstructing governmental functions in A.C.A. § 5-54-102.
On complaint channels: the opinion described a three-step path. A complainant can file directly with the police department, file with the local prosecuting attorney, or have the prosecutor refer the matter to the Arkansas State Police. The ASP Criminal Investigation Division has internal procedures for evaluating such requests, including review for conflicting civil or criminal litigation.
Source
Original opinion text
Opinion No. 2013-115
January 24, 2014
STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
The Honorable Karen S. Hopper
State Representative
Post Office Box 864
Mountain Home, Arkansas 72654-0864
Dear Representative Hopper:
I am writing in response to your request for my opinion on the following questions, which you have submitted in connection with your concerns "regarding the rights of citizens to photograph and file charges against city, state and county officials, who are believed to be guilty of violating state statutes":
- Are city and county law enforcement agencies responsible for developing policies that adhere to and do not infringe upon, A.C.A. 27-37-306, Arkansas Tint Law; A.C.A. 27-51-202, Restrictions Not Applicable to Emergency Vehicles; and A.C.A. 27-51-204, Maximum and Minimum Speed Limits-Exceptions? If so, then:
(a) Are citizens allowed to photograph or video-tape the believed infractions, with respect to time, place, and manner rules and regulations, as long as positive interference with a governmental function can't be affirmed?
(b) Should local law enforcement, prosecuting attorneys, or district judges establish stipulations on a citizen that diminish one's right to record officers in the discharge of their public duties or extort agreements to such stipulations by use of intimidation or threats of incarceration?
(c) If a citizen documents unlawful activity committed by a chief of police, or by an officer in the city limits, or an elected official working for the city, who is responsible for taking a report and ensuring that the accused will not be shown favor or leniency with respect to due process and equality? - If a citizen suspects law enforcement officers or elected officials within the county to be guilty of violating an Arkansas state law, such as A.C.A. 5-54-122, Filing False Report with Law Enforcement Agency, or other state statutes which could end their career, who is responsible for taking a report of the allegation, investigating the allegation, and ensuring that the law is enforced without favor or malice?
RESPONSE
I must note at the outset that, as a public official, I am statutorily precluded from engaging in the private practice of law. Given the specificity of the statutes referenced in your question, I can only assume that your questions relate to particular incidents involving a constituent who is seeking advice regarding the scope of his legal rights. Regrettably, I am precluded from rendering such advice. Accordingly, in the ensuing discussion, I can do no more than set forth generally the scope of official responsibility and accountability in enforcing the laws.
In response to the inquiry preceding the subparts of your first question, in my opinion, law enforcement agencies, while obviously obligated to comply with the laws recited, are not obliged to formulate rules and regulations to ensure that they "adhere to and do not infringe upon" these laws. With respect to subsection (a) of this question, photographing or videotaping a law enforcement is generally impermissible when doing so would obstruct governmental functions. I cannot address the propriety of any such practice under what appear to be the specific circumstances giving rise to your questions. I am unable meaningfully to address the scenario anticipated in subsection (b) of your question, which appears concerned with unspecified allegations of official malfeasance that should properly be directed to private counsel. Finally, with respect to both of your questions, the discussion below generally sets forth the procedures available for reporting and seeking relief for infractions of the sort contemplated.
Question 1: With respect to the general question that precedes your itemized inquiries, city and county law enforcement agencies are clearly charged with upholding the laws. Law-enforcement agencies are under no duty, however, to formally enact rules or regulations that "adhere to and do not infringe upon" the specific laws recited. I am neither situated nor authorized to address any particular concerns your constituent may harbor regarding official enforcement of these laws.
With respect to subsection (a) of this question, only a finder of fact could determine in any particular instance whether a citizen was justified in videotaping an officer engaged in his official duties. Although First Amendment rights might be implicated, only a finder of fact could determine in any given case whether a citizen's qualified right to videotape in public has been compromised. Moreover, with respect to the particular circumstances giving rise to your question, I can do no more than state again that only private counsel could advise your constituent regarding his legal options. As a general proposition, however, I can affirm that a private citizen has no right to engage in what you term a "positive interference with a governmental function."
As phrased, Subsection (b) of your question appears to answer itself in referring to "stipulations on a citizen that diminish one's right to record officers in the discharge of their public duties" and to officials' "extort[ing] agreements to such stipulations by use of intimidation or threats of incarceration" (emphases added). To the extent that a "right to record officers" exists in any given instance, a determination that could only be made by considering all the attendant circumstances, an official could obviously not properly "diminish" it. Only a finder of fact, however, could determine whether an existing right has been compromised in any particular instance. Likewise, "extortion" constitutes a criminal offense and hence is impermissible.
However, even if you were to detail particular circumstances that you believe might constitute a "diminishment" of rights or "extortion," I could offer no opinion regarding the justice of these characterizations. I am neither a finder of fact nor authorized to opine regarding the consequences at law of what might be the facts. Simply put, I cannot speculate in a formal opinion regarding specific matters whose resolution properly falls within the jurisdiction of the courts.
With respect to your inquiry in subsection (c) of this question, if a citizen is aggrieved by a municipal law enforcement officer's alleged misconduct, he can file a complaint either with the police department itself or with the local prosecutor, who may choose to refer a matter to the Arkansas State Police for possible investigation.
Question 2: As was the case with your first question, I suspect that your reference to a specific statute relates to some particular incident or incidents that prompted your request. Again, I cannot provide counsel to individuals regarding how they should proceed to challenge the conduct of a public official or agency with respect to a particular grievance. I can do no more than note that, as a general matter, the remedies referenced in my response to your first question would apply equally to an official's violation of the referenced statute, which declares it a Class A misdemeanor to file a false report with a law enforcement agency or prosecuting attorney's office alleging criminal activity by another individual. Only counsel familiar with the circumstances to which you suggest this statute might apply could provide counsel regarding what recourse, if any, a complainant might have.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL
Attorney General
DM/JHD:cyh
Get today's answer for your situation
You just read a 2014 opinion on this question. Ezel checks the current Arkansas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.