No sooner than we started celebrating Connecticut’s passing of the bill that would hold cops personally liable for arresting citizens who record them in public that the naysayers started coming out of the woodworks insisting that the bill lacks teeth.
And they have a point.
As Mike Riggs of Reason points out, the bill “allows citizens to record police officers, so long as the police officers in question don’t object to being recorded.”
In other words, we’re back to square one where we already have the right to record cops, unless, of course, cops believe we are guilty of wirtetapping or loitering or interference or disorderly conduct or simply resisting arrest, even if there are no underlying charge to arrest us in the first place.
Riggs points out to section 1(c) of the bill, which gives cops all kinds of leeways to get away with arresting citizens who legally record them.
“A peace officer shall not be liable under subsection (b) of this section if the peace officer had reasonable grounds to believe that the peace officer was interfering with the taking of such image in order to (1) lawfully enforce a criminal law of this state or a municipal ordinance, (2) protect the public safety, (3) preserve the integrity of a crime scene or criminal investigation, (4) safeguard the privacy interests of any person, including a victim of a crime, or (5) lawfully enforce court rules and policies of the Judicial Branch with respect to taking a photograph, videotaping or otherwise recording an image in facilities of the Judicial Branch.”
The Citizen Media Law Project, which is recommended reading for anybody interested in these issues, also has no confidence in the bill.
Were this fact pattern under Connecticut jurisdiction, the cop could say that what he really meant was that he felt she was endangering the investigation somehow – a 1(c)(3) exception – or that somehow public safety was at risk, a 1(c)(2) exception. Does he have "reasonable grounds" for such beliefs? Hard to say without further guidance, guidance that the bill does not give. But I can see cops winning such an argument, despite it seeming the wrong outcome.
Then there is former Albuquerque police officer Mark G. Bralley – a longtime PINAC reader and supporter whom I wrote about in 2008 after he was kicked out of a John McCain rally for taking photos – who stated the following in an email.
Senate Bill 245, comes completely apart with:
(4) safeguard the privacy of a crime victim or other person;
or other person
That would mean any other person and would not exclude any police officer, or for that matter any corporation... thanks to the Supreme Court in Citizens United v. Federal Election Commission.
Not as protective as you might think.
Go back and look at the Albuquerque Onlookers Policy, which applies to requests of crime victims or witnesses asking that onlookers not be allowed close enough to overhear their conversation.
Any good officer would remove a crime victim or witness to the confines of a residence, police car, office, or police station to conduct their interviews, if being subjected to videoing bothers the victim/witness.
And in a followup email:
I'm not sure the Connecticut state senate bill might make past basic employment contract law and I am sure it won't fare well in actual negotiations that would uncover officers who are otherwise working within their scope of duties.
Don't get me wrong here, but it could get a bit sticky. As you know I believe people have an absolute right to hold their hired help accountable.
Officers are covered when they act in their formal capacity for a government, as long as they do so within the scope of their duties.
The definition of, "within the scope of their duties," is not always as cut and dry as many would like to believe.
I like the idea of stripping coverage from officers, but I think it already exists, one has to be able to get to a court where it can be applied.
Glik v Boston was exactly the answer to that question. The Boston officers lost their qualified immunity because the court ruled that they should have know that the charge of wiretapping was no longer a legal charge by court ruling.
I think one has to figure out what we want, in terms of language that will, make the narrow point, without having to get away from the First's protection.
This first blush skepticism will go away as different ideas get knocked around and some workable ideas start to take hold.
I understand why and where Connecticut is trying to go, but it is threading a needle of enforcement against the bad actors who will try to hide behind the immunity shield. We want to pierce the shield, without destroying the reason it exists for good actions.
Bralley is an interesting person to get to know because of his longtime police experience as well as his longtime support for First Amendment journalistic protections.
Here is a piece he wrote for the police union’s newsletter back in 1999 about a meeting between journalists, including National Press Photographers Association representatives, and police to improve relations.
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CARLOS MILLER'S LEGAL DEFENSE FUND
I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.
My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.
So if you would like to contribute, please click on the "donate" button below and contribute whatever you can afford.
You can also contribute to my Legal Defense Fund by purchasing a photographer rights lens cloth and/or laminated card to wear around your neck like a press badge through Zap Rag.Please write "carlos3" in the comments section of the Paypal transaction to ensure I receive a portion of the sale.
Also, in an unrelated PINAC matter, I recently went through a hair transplant operation and I'm documenting my recovery on this blog if you are interested.