Recording Law for Recording in Public in New Mexico

New Mexico’s wiretap law applies to phone calls and telegraph messages, not face-to-face conversations. The statute, NMSA 1978, Section 30-12-1, makes it a misdemeanor to damage or tap telegraph/telephone equipment, intercept a message "intended for another by telegraph or telephone," obstruct delivery, or use apparatus to facilitate such acts without consent. It does not mention in-person conversations at all. A 1977 New Mexico Court of Appeals case, State v. Hogervorst, confirmed this by ruling that the law does not criminalize recording a face-to-face conversation, even if done secretly. So if you’re recording a conversation in person—whether in a park, on a sidewalk, or in a store—this law does not apply. The law exempts interceptions "under color of law" in a crime investigation where the officer is a party to the communication, or where any one party to the communication has given prior consent. The only time consent matters is if you’re recording a phone call or telegraph message.

Recording video in public places is not restricted by New Mexico’s wiretap law. The statute only covers telegraph and telephone communications, and video recordings do not fall under those categories. The same State v. Hogervorst case made clear that the law does not apply to in-person interactions, whether audio is involved or not. There is also no law in New Mexico that requires you to tell people you are recording them on video in public. The only exception is a narrow voyeurism law, NMSA 1978 Section 30-9-20, which prohibits secretly recording someone in a place where they have a reasonable expectation of privacy, like a restroom or changing room. Outside of those specific settings, video recording in public is unrestricted.

Under federal law, you have a First Amendment right to record on-duty police officers performing official duties in public. The U.S. Court of Appeals for the Tenth Circuit, which covers New Mexico, ruled in Irizarry v. Yehia (2022) that this right is clearly established. The court held that an officer who tried to stop someone from recording could not claim qualified immunity because the right to record police in public was already recognized by multiple other federal courts. Since New Mexico’s wiretap law does not apply to in-person recordings, there is no state-level restriction either. This means you can legally record police officers in public, even if they tell you not to, as long as you do not interfere with their duties.

New Mexico is a one-party consent state, but that rule only applies to communications covered by the wiretap statute—phone calls and telegraph messages—not in-person conversations. The wiretap law allows you to record a phone call if at least one person in the conversation consents, which could be you, or if the interception is "under color of law" in a crime investigation where the officer is a party to the communication. However, if you record an in-person conversation, this law does not apply at all. The one-party consent rule is irrelevant for face-to-face interactions because the statute is limited to electronic communications. So if you’re recording a conversation in person, you do not need anyone’s permission under this law. The only time consent matters is if you’re recording a phone call or telegraph message.

Breaking New Mexico’s wiretap law is a misdemeanor, punishable by up to 364 days in jail and a fine of up to $1,000. The law also allows for a civil lawsuit under NMSA 1978, Section 30-12-11, where you could be sued for damages, including $100 per day or at least $1,000, plus attorney fees and punitive damages. These penalties apply to violations of the wiretap statute, which include damaging equipment, tapping lines, intercepting messages intended for another, obstructing delivery, or using apparatus to facilitate such acts without consent. However, these penalties only apply if you commit one of those prohibited acts involving a phone call or telegraph message without consent. Since in-person conversations are not covered by the law, there is no criminal or civil penalty for recording them in public. The only risks come from other laws, like trespassing or invasion of privacy, which are separate issues.

Imagine you’re in a public park and two people start arguing loudly. You pull out your phone and record the conversation because you want to document what happens. Under New Mexico law, this is legal. The wiretap statute does not apply to in-person conversations, so you do not need anyone’s permission. If the argument involves a police officer performing official duties, you can also record them without breaking the law. The only thing to avoid is secretly recording someone in a private space where they have a reasonable expectation of privacy, like a bathroom. Otherwise, recording in public is unrestricted.

New Mexico’s wiretap statute includes two key exceptions beyond one-party consent. First, interceptions made "under color of law" in the investigation of a crime are permitted when the officer is a party to the communication. Second, the statute exempts interceptions where one of the parties to the communication has given prior consent. These exceptions apply to any communication covered by the statute, including phone calls and telegraph messages. The statute’s prohibitions cover damaging telegraph/telephone equipment, tapping or connecting to lines without consent, intercepting messages intended for another, obstructing delivery, or using apparatus to facilitate such acts. Violations are misdemeanors punishable by up to 364 days in jail and a $1,000 fine, with civil liability under NMSA 1978, Section 30-12-11 for damages, attorney fees, and punitive damages.