I think this is mostly but not quite right. (I’m a lawyer, if that matters.) California is one of the minority of states in which you can’t record a “confidential communication” unless all the parties have consented. The law is California Penal Code § 632. This applies whether you are doing it secretly (like recording a phone conversation) or not (like standing there recording video with your phone).
The first point here is that only recording a communication is illegal under this law. (There is a “peeping tom” law, of course, but that hardly applies here.) So it is plainly not illegal to, for example, stand half a block away and record people doing things. Unless they’re using semaphore flags, I guess, but you don’t see those much these days.
Second point: the law only applies to confidential communications, defined this way:
(c) The term “confidential communication” includes any communication
carried on in circumstances as may reasonably indicate that any party
to the communication desires it to be confined to the parties thereto,
but excludes a communication made in a public gathering or in any
legislative, judicial, executive or administrative proceeding open to
the public, or in any other circumstance in which the parties to the
communication may reasonably expect that the communication may be
overheard or recorded.
That first clause could cover communications we might not think of as confidential, because it is a little subjective. I once wanted to record a call with an opposing lawyer who is in the habit of yelling insults, but decided not to because he could argue he wanted it kept private, whether that made objective sense or not.
But the rest of it clearly excludes recording something out in public. Where one might expect to potentially be recorded. Like standing out on the street in a century where everyone has a cell phone. Whether you are a cop or not. So I think there is no question that under California law, recording the police (or anybody else) with your phone out in a public place is entirely legal. (Some courts have held you have a First Amendment right to do it because you’re potentially “news-gathering,” basically, but here the state law doesn’t even make it illegal.)
Gizmodo is also right that you can’t interfere with or obstruct the cops, of course. And cops (and the TSA) have often argued that filming them is “interference” because … why? Because they don’t like it and will stop what they’re doing to come get in your face? That’s complete bullshit.
So, to get back to the dog case, here it is obvious from the video that the guy was doing nothing wrong by walking around and openly filming the cops. Totally within his rights, whether he had a bad attitude or not. If that’s what the cops arrested him for, they were the ones breaking the law, not him. And they created the whole situation in the first place by doing that.
Having said that, the guy might bear some responsibility for what happened, not because of the recording but because he had a big dog that wasn’t secured (window was rolled down, for example). That allowed the dog to get out and (arguably) charge at the cop. Some responsibility, not the majority—if it was a negligence case, for example, maybe a jury would put 5 or 10 or 15 percent on him. But if I were on the jury, at least, I would put this 90+ percent on the cops.
I would also hope that I could wait until I was actually bitten before shooting a dog as an absolute last resort, but I think it’s hard to know what you would do in that situation. But here’s an idea—how about letting the guy go so he can calm down his dog, and because you shouldn’t have hassled him in the first place?
Sorry for the ultra-long comment—I hate it when cops claim you can’t record in public, and I love dogs.
