South Dakota Laws on Recording Police

South Dakota law does not forbid recording on-duty police officers in public, although the Eighth Circuit, which covers South Dakota, has not decided whether the First Amendment protects it. 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 law does not forbid recording police officers performing their duties in public. Eight federal appeals courts have held that the First Amendment protects that activity, but the Eighth Circuit, which covers South Dakota, has not decided the question. 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.

Recording Police and the Constitution

The First Amendment Foundation

Multiple federal courts of appeals have held that the First Amendment protects recording police officers performing their duties in public, reasoning 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 decided whether the First Amendment protects recording officers performing their duties. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. Jan. 21, 2020), the court held under the Fourth Amendment that officers could not detain a man for watching police from a distance without more indication of wrongdoing; it did not recognize a First Amendment right to record. In Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. Jan. 5, 2021), the Eighth Circuit assumed that Robbins had a right to record but said any such right is not absolute, and granted the officers qualified immunity on his First Amendment retaliation claim because his evasive, confrontational behavior, combined with their knowledge of recent car thefts and vandalism nearby and a prior filming incident that escalated into the murder of two officers, meant their conduct was not objectively unreasonable under clearly established law. In Molina v. Book, No. 21-1830 (8th Cir. Feb. 2, 2023, cert. denied Feb. 20, 2024), the court held that observing and recording police-citizen interactions was not a clearly established First Amendment right in 2015, and that Fourth Amendment cases such as Chestnut cannot clearly establish one.

Elsewhere, eight federal appeals courts (the First, Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits) have held that the First Amendment protects recording police doing their jobs in public, and the Fourth Circuit has held that livestreaming a police traffic stop is protected speech. Those decisions are persuasive but not binding in South Dakota. In a non-police setting, the Eighth Circuit held in Ness v. City of Bloomington (2021) that photographing and recording video in a public park to inform the public is protected expression, though recording unrelated to an expressive purpose may not be.

In practice, recording police in public is not a crime in South Dakota, but a First Amendment damages claim faces a qualified-immunity barrier there: until the Eighth Circuit recognizes the right, officers can argue it was not clearly established. Other claims, such as an unlawful arrest or an unlawful seizure of your device, may still be brought under 42 U.S.C. 1983.

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, South Dakota law does not prohibit capturing 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. The same rules apply 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

Even where recording is lawful, 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 law, SDCL 22-11-6, makes it a Class 1 misdemeanor to intentionally obstruct or hinder an officer by using or threatening violence, force, or physical interference or obstacle. Recording from a distance without physically interfering is not that offense, but stepping in, blocking, or touching officers can be.

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. Whether an order to stop recording entirely is lawful has not been decided in the Eighth Circuit, so the safest course is to comply and challenge the order later.

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 are recording lawfully. 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

Requests for body camera and dashcam footage fall under South Dakota's general open-records law. SDCL 1-27-1.5(5) exempts law-enforcement records that form part of an examination, investigation, intelligence information, or citizen complaint or inquiry, so footage tied to an investigation can be withheld. Other exemptions, such as the one for records that could endanger someone's safety, may apply case by case. The exemption is not a categorical bar on all police video.

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 to agencies applying the general exemptions.

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 am recording lawfully, 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 agency boards, public hearings, and other open meetings of public bodies. It does not apply to meetings closed under a specific law, and the Open Meetings Law does not cover the Legislature (SDCL 1-25-12).

More South Dakota Recording Laws

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Frequently Asked Questions

Can I record police officers in South Dakota?

Generally yes. South Dakota law does not forbid recording police officers doing their jobs in public, but the Eighth Circuit, which covers South Dakota, has not decided whether the First Amendment protects it, so stay back, do not interfere, and follow lawful orders. South Dakota's one-party consent law (SDCL 23A-35A-20) also allows you to audio record your own interactions with police without informing them.

Can police take my phone for recording them in South Dakota?

Police cannot confiscate your phone or recording device solely to punish or stop you from recording them in public. Temporary physical custody of the device on probable cause, for example to prevent deletion of evidence, is a separate question from searching it: under Riley v. California, officers generally need a warrant to search the contents of a phone, including any video or audio you recorded, even once it is in their possession. If an officer takes your device, clearly state that you do not consent to a search and contact an attorney.

Can I record a traffic stop in South Dakota?

Yes. You can record your own traffic stop using a phone, dashcam, or any other recording device. Keep your hands visible and avoid sudden movements. Passengers can also record the stop.

Can I get police body camera footage in South Dakota?

Public access is very limited. South Dakota has no law specifically governing this footage, and agencies often withhold it under the open-records exemption for investigative records, SDCL 1-27-1.5(5). Defendants in criminal cases can typically obtain footage through the legal discovery process.

What should I do if police order me to stop recording in South Dakota?

Calmly say that you would like to keep recording, but do not physically resist. If the officer persists, comply to avoid arrest but document the interaction. Contact an attorney afterward about filing a complaint or a civil rights claim under 42 U.S.C. 1983.