South Dakota Laws on Recording Police

In South Dakota, the First Amendment protects your right to record on-duty police officers in public. Under SDCL 23A-35A-20, South Dakota's one-party consent law, you may audio record any police interaction you are part of without notifying the officer.

South Dakota residents have the right to record police officers performing their duties in public. This right is grounded in the First Amendment to the U.S. Constitution and supported by federal court rulings. South Dakota's one-party consent law (SDCL 23A-35A-20) further allows you to audio record any interaction with police that you are part of without informing the officers.

This guide explains when and how you can legally record police in South Dakota, your rights during traffic stops, the limits on recording, and the rules around body camera footage and police video.

Your Constitutional Right to Record Police

The First Amendment Foundation

The right to record police officers performing their duties in public is protected by the First Amendment. Multiple federal courts of appeals have recognized this right, holding that the act of recording public officials carries out a core First Amendment purpose: enabling the public to monitor government conduct.

The U.S. Court of Appeals for the Eighth Circuit, which covers South Dakota, has addressed bystander recording of police in several decisions but has not yet recognized a clearly established right to record officers performing their duties as a stand-alone First Amendment doctrine. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. Jan. 21, 2020), the court held that the right to passively observe police was clearly established. In Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. Jan. 5, 2021), the Eighth Circuit declined to extend that holding into a clearly established right to record. In Molina v. Book, No. 21-1830 (8th Cir. Feb. 2, 2023, cert. denied Feb. 20, 2024), the court again declined to recognize the right as clearly established in the qualified-immunity context. Federal circuits that have explicitly upheld the right to record police include the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits, and the First Amendment doctrine generally supports recording on public property.

In practice, this means that recording police officers in public in South Dakota is constitutionally protected activity. Officers who seize recording devices or arrest individuals solely for recording face potential liability under 42 U.S.C. 1983 for violating civil rights.

South Dakota's One-Party Consent Rule

Beyond the First Amendment, South Dakota's wiretapping statute provides additional support. Under SDCL 23A-35A-20, you can record any conversation you participate in without informing the other party. When you interact with a police officer during a traffic stop, at a public event, or during any other encounter, you are a party to that conversation and can lawfully record the audio.

When You Can Record Police

Traffic Stops

You can record your own traffic stop in South Dakota. This includes:

• Turning on your phone's camera or voice recorder when pulled over
• Using a dashcam that captures both video and audio of the stop
• Having a passenger record the interaction
• Livestreaming the encounter on social media

When recording a traffic stop, keep your hands visible and inform the officer if you need to reach for your phone. Do not make sudden movements that could be interpreted as reaching for a weapon.

Arrests and Detentions

You can record arrests happening in public. Whether you are the person being arrested or a bystander, you have the right to capture the event on video or audio. Bystanders should maintain a safe distance and avoid physically interfering with the arrest.

Police Checkpoints and Roadblocks

South Dakota law enforcement occasionally conducts DUI checkpoints and other roadblocks. You can record these encounters. Your dashcam may continue recording throughout the stop, and you can use a handheld device as well.

Public Protests and Demonstrations

During public protests, demonstrations, and rallies in South Dakota, you can record police activity including their interactions with protesters, their crowd management tactics, and their response to any incidents. This right extends to journalists, independent media, and members of the public alike.

Interactions at Government Buildings

You can record police officers and other government officials in public areas of government buildings. This includes the public areas of courthouses, city halls, police station lobbies, and other government facilities. Individual buildings may have specific rules about recording in certain areas, but public lobbies and common areas are generally open to recording.

Limits on Recording Police

Do Not Interfere With Police Operations

While you have the right to record, you cannot physically interfere with police operations. Interference includes:

• Stepping into the path of officers pursuing a suspect
• Reaching past a police perimeter or crime scene tape
• Blocking police vehicles or equipment
• Touching officers or their equipment
• Loudly disrupting police communications during an active operation

South Dakota's obstruction statute makes it illegal to intentionally prevent or attempt to prevent a law enforcement officer from performing a lawful duty.

Do Not Trespass

You cannot enter private property without permission to get a better recording angle. If police are conducting an operation on private property, you must record from a public area or from property where you have permission to be.

Follow Lawful Orders to Move Back

Officers may order you to move back to a safe distance during an active scene. You should comply with reasonable distance requests while continuing to record. An order to stop recording entirely, however, is generally not a lawful order.

Search vs. Seizure: What Officers Can and Cannot Do

Police officers cannot confiscate your phone or recording device simply to punish you for recording them, and taking hold of the device is a separate question from searching what is on it. Officers may, in narrow circumstances, take temporary physical custody of your device based on probable cause, for example to prevent you from deleting recorded evidence, while they seek a warrant. But viewing, copying, or deleting your photos, video, or audio requires a warrant to search the device's contents in nearly all circumstances.

The U.S. Supreme Court's decision in Riley v. California, 573 U.S. 373 (2014), established that police generally need a warrant to search the digital contents of a cell phone, including recorded video and audio files, even once the phone is already in their possession. If an officer takes your device, clearly state that you do not consent to a search of its contents, but do not physically resist.

Officers Cannot Force You to Delete Footage

An officer has no legal authority to force you to delete recordings. If ordered to delete footage, calmly decline and state that you believe you have the right to record. If the officer persists, do not physically resist, but document the interaction and contact an attorney afterward.

Body Camera and Police Dashcam Footage

South Dakota's Approach to Police Video

South Dakota does not have a specific statute mandating or regulating law enforcement body cameras or dashcams. Individual agencies make their own decisions about whether to equip officers with body cameras.

Public Access to Police Video

Body camera footage and police dashcam video are generally treated as exempt from South Dakota's public records laws under the general law enforcement records exemption at SDCL 1-27-1.5(5). Law enforcement agencies have broad discretion on whether to release police video to the public. South Dakota News Watch has reported that requests for police video are routinely denied by agencies across the state.

This lack of public access has drawn criticism from transparency advocates. Unlike states that have enacted specific body camera disclosure laws, South Dakota leaves the decision entirely to individual agencies.

Obtaining Police Video for Legal Proceedings

While the public may not have access to police video, defendants in criminal cases can typically obtain body camera and dashcam footage through the discovery process. Attorneys can subpoena police video as part of litigation. If you are involved in a case where police video may be relevant, consult with a South Dakota attorney about how to obtain it.

Recording Police in South Dakota vs. Neighboring States

South Dakota's one-party consent framework is more permissive than some neighboring states:

All states permit recording police in public, but the audio recording rules vary. Montana's two-party consent requirement means you should inform officers you are recording if you want to capture audio during a Montana police encounter.

What to Do If Your Rights Are Violated

If a police officer in South Dakota:

• Arrests you for recording
• Seizes your recording device
• Forces you to delete footage
• Threatens you for recording

Take these steps:

1. Remain calm and do not physically resist. Asserting your rights verbally is appropriate; physical resistance is dangerous and can result in additional charges.
2. Clearly state your rights. Say something like "I believe I have the right to record under the First Amendment and I do not consent to the seizure of my device."
3. Document everything. Write down the officer's name, badge number, agency, date, time, and location as soon as possible.
4. Contact an attorney. An attorney can advise you on filing a complaint or pursuing a civil rights claim under 42 U.S.C. 1983.
5. File a complaint. You can file a complaint with the officer's agency or with the ACLU of South Dakota.

Recording Government Meetings

South Dakota's Open Meetings Law (SDCL 1-25) provides a separate and explicit right to record government meetings. Under SDCL 1-25-11, no public body may prevent a person from recording a public meeting that is open to the public, as long as the recording is:

• Reasonable in its methods
• Obvious to meeting participants
• Not disruptive to the proceedings

This applies to city and county commission meetings, school board meetings, state legislative proceedings, public hearings, and all other open government meetings.

More South Dakota Recording Laws

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