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Testifying on Connecticut S.B. 245 (2012) and a Detailed Review of the Bill

Today I testified at a hearing on a right to record bill in Connecticut.  In Connecticut, giving testimony before a committee means that you make your whole day suck so that you can talk for three minutes, and maybe get a few questions. I did make the six o’clock news on channel 8, WTNH, though, which was pretty nifty. (They didn’t use my favorite sound-byte, but they got the website name out there, so I consider it a win.)

The Questions Asked

The committee asked Senator Martin Looney a storm of questions, including on pending cases in Connecticut, the state of federal and state case law–here and elsewhere, the scope of monetary awards, definitions of terms, the scope of a safety provision, the idea of interfering, why we need the law if the right is protected under federal law, changes in the bil from last year to this year, burdens of proof, and cell phone guns. I told the committee I was prepared to answer questions on these topics, but I received few questions. That makes me wonder how important those questions really were, or if they were posed to Looney just to poke holes in his testimony, rather than in a search for the truth. (If any representatives or senators are reading this, I still welcome those questions and would, if you’d like, post the question and response here, or post your concerns here, unedited.)

So I thought I’d discuss the particulars of the proposed bill along with some of my suggestions. But first to address a key question posed by several members of the committee (and which Martin Looney didn’t answer very well):

Why Do We Need This Law if Federal Law Already Protects the Right?

(more after the jump)

Professor Martin B. Margulies is so bad-ass that he advanced the freedom of speech and of the press in Connecticut even in the cases that he lost. He is also a hell of cool guy, although all his 1Ls truly fear him.

The law is (probably) clearly established in the Second Circuit that the right to record police falls within First Amendment protections, subject to the usual contours of the right. But it takes a lot of research to make a claim given the current state of federal law. That research is prohibitively expensive. We’re easily talking tens of thousands of dollars in research, or more, unless the person has a connection to someone with a strong First Amendment background in the right to gather information and this issue in particular. Indeed, no one in Connecticut has yet filed a claim under federal law, in part because of this (although I am aware of a case coming up where an enterprising attorney and bold client are looking to change that). This bill would allow people to make a claim without having to do lots of expensive First Amendment research.

Further, Connecticut should not rely on the vagaries of federal law to protect its citizens. As my hero, Marty Margulies wrote, “It is commendable when Connecticut follows other states in expanding individual rights guarantees.  It would be more commendable still, however, if Connecticut were to lead.”  Martin B. Margulies, Connecticut’s Free Speech Clauses: A Framework and an Agenda, 65 Conn. B.J. 437, 451 (1991).

So What’s This Law Do?

The bill, honestly, is not my favorite. It has two gaping exceptions–in (c)(1) and (c)(4). It does not provide officers with training. It does not clarify “the rules” as much as it should. But I felt I should go through the bill’s text, bit by bit, for anyone who is interested. (I color-code various provisions below.) The text of the proposed statute reads:

(a) For the purposes of this section, “peace officer” has the meaning provided in section 53a-3 of the general statutes.

(b) A peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer’s duties shall, subject to sections 5-141d, 7-465 and 29-8a of the general statutes, be liable to such person in an action at law, suit in equity or other proper proceeding for redress.

(c) 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.

 

Subsection (a):

For the purposes of this section, “peace officer” has the meaning provided in section 53a-3 of the general statutes.

This is not a big deal, and it is pretty normal. The text is slightly off–it should point to 53a-3(9) actually. This definition of “peace officers” encompasses a bunch of state employees, including police but also including park security, treasury investigators, correctional officers, and more.

Subsection (b):

A peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer’s duties shall, subject to sections 5-141d, 7-465 and 29-8a of the general statutes, be liable to such person in an action at law, suit in equity or other proper proceeding for redress.

Okay.

  1. First there is the issue of “interferes.” What does it mean? It’s not a self defining term. ”Interferes” is a kind of standard, but what police and citizens need is a rule. This question was a big issue last session, so I devoted a significant amount of attention to it in my written testimony for this session, offering specific terminology and categories of conduct. To fix this, I suggested using specific categories of conduct to define it, so officers would really, really understand what not to do–and so we could all talk about what the law should do in a more frank way.

    For the purposes of this section, “interferes with any person taking a photographic or digital still or video image” means:

    i. physically obstructs or hinders taking such image;

    ii. threatens to impose criminal liability or otherwise abuse the criminal process in retaliation for the person taking such image;

    iii. seizes private property related to taking such image, without a subpoena, warrant, or probably cause; or

    iv. knowingly or recklessly tampers with private property related to taking such images in a manner that damages, degrades, or causes the loss of such image.

  2. And there’s a flip side to “interferes,” too. The two most common criminal statutes used to chill people from recording police both rely heavily on the idea of “interfering”: Connecticut General Statutes § 53a-182 Disorderly Conduct and § 53a-167a Interfering with an Officer. If one isn’t clear, the other isn’t either. Recording police does not interfere unless the conduct of recording would interfere even without a camera present. I suggested adding language to exception (c)(1) (below) to clear that up: respecting that recording police in public is not, without something more, itself a violation of law . . . .
  3. Next there’s the language of “any person taking a photographic or digital still or video image.” This is pretty self explanatory–I just think it’s pretty wordy and a little underinclusive: what about audio?
  4. Then we have “performance of such peace officer’s duties.” This means you can’t nail an officer for telling you to put your #@%$ing camera away when you’re taking pictures of him with his kid at her dance recital. It’s not just while “on-duty” though: an off duty officer who starts engaging in police officer duties would also be included.
  5. Next there is “subject to sections 5-141d, 7-465 and 29-8a of the general statutes.” This is pretty standard stuff. These mean that unless an officer is really, really out of line, the municipality pays. And even if an officer is really, really out of line, the municipality pays up front, and then can go after the officer (who is often judgment proof). Overall, it means tax payers are on the hook for officer screwups. This keeps officers from having to constantly second guess themselves. This is the case for all civil rights actions in Connecticut, and makes this act no different.
  6. Finally, “liable to such person in an action at law, suit in equity or other proper proceeding for redress” means that a person can get money (action at law), can stop someone from doing something or make them do something (suit in equity) or something else that the judge thinks is proper. It gives a lot of flexibility for a proper remedy.

With the exceptions of #1 and #2, this section isn’t so bad.

Subsection (c):

Now we come to the exceptions, and here is where the bill starts hitting some rocky ground. I should add that last year’s initial version of the bill didn’t have these at first, but they were added in after discussions with Connecticut Chief State’s Attorney Kevin Kane and other members of law enforcement.

(c) 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.

  1. I know this one tough-as-nails defense attorney, with more than 20 years of practice, who fears facing no one in court--except facing Kevin Kane.

    [S]hall not be liable under subsection (b) of this section” means they can’t be sued for interfering.

  2. [H]ad reasonable grounds to believe” more or less tracks the language for qualified immunity. Kevin Kane and Chief Salvatore complained that this language was different from last year’s modified version that passed the Senate, and said that the new language shifted the burden onto police officers. When the committee asked him about this, Senator Martin Looney responded with confusion. So let me clear this up.Last year’s modified version stated that “The bill specifies that liability attaches when the interfering officer lacks a reasonable basis for believing that he or she is acting to [an exception].” That would mean the plaintiff would have to show that the officer lacked a reasonable basis for acting. The modified version could be read to require an officer to show that he or she had a reasonable basis for acting. So the burden could have been flipped here–or at the very least it is ambiguous.If the intention of the law is to track qualified immunity, both groups are wrong, although Kane & Salvatore are less wrong.

    To track qualified immunity, the language should read, “if the plaintiff shows that no reasonable officer would have had reasonable grounds to believe that the peace officer was interfering with the taking of such image in order to [accomplish an exception." The difference is that the current language, espoused by Kane and Salvatore, suggest that the plaintiff has to show what the officer actually thought, as opposed to what a reasonable officer would understand. The former is much harder than the latter.

  3. Exception (c)(1) is a gaping maw that could swallow the whole bill, "lawfully enforce a criminal law of this state or a municipal ordinance." As I testified last session, it's very important to include something like this exception, else there will be absurd results like murderers suing officers for stopping them from filming their murders. But this language is too sweeping because of the loose language in statutes like § 53a-182 Disorderly Conduct and § 53a-167a Interfering with an Officer. Here are some examples I point out in my testimony.
    1. From 30 feet away, Anne records an officer arrest a suspect in public. The officer is self-conscious and offended at the idea of being recorded.  Anne’s act of recording actually distracts the officer. Is Anne interfering?
    2. From 30 feet away, Anne records her friend, Betty, being arrested at Betty’s request. Calvin is present, and he is a witness who does not want to be recording. He will not cooperate if Anne records. Is Anne interfering?
    3. Anne is uncomfortable and wants to record her traffic stop. The officer asks her questions and for identification, but Anne is somewhat distracted from operating the camera and slower as a result. Is Anne interfering?

    Reasonable people could disagree on the answers to these and other questions. So I suggested adding language to this exception, "respecting that recording police in public is not, without something more, itself a violation of law."

  4. Exception (c)(2) received some attention when Looney testified--the exception for when officers act to "protect the public safety."  The question was how broadly to construe "public safety." This was a good comment by Representative O'Neill (he asked Looney lots of good questions, and Looney did not respond well). Public Safety can be a really broad topic, encompassing issues from properly inflated tires to contaminated peanut butter. I would narrow the language to to, "protect the safety of any individual." This is a clearer category but no less compelling.
  5. Exception (c)(3), allowing officers to "preserve the integrity of a crime scene or criminal investigation," is fine as-written. It would not prevent individuals from taking pictures of a scene from where they can lawfully stand, but would enable officers to stop people from crossing a police line or physically tampering with evidence. 

    John Hetherington sports a fantastic collection of bow-ties. And he asks thoughtful questions.

  6. Most of the questions I received from Representative John Hetherigton were on this exception.The issue is two-fold.First, this will give police a misunderstanding of the law, and lead to civil liability under federal law. The First Amendment allows people to take pictures of accident scenes, and restrains the government from preventing them from doing so where the person is lawfully present. The government can lawfully stop such a person from taking pictures when that person is notlawfully present, like on the wrong side of a police line. But not if the person is lawfully present, and can see the scene.Consider that the goal in such prevention is to stop publication of the images. There is no exception to the First Amendment for violent images. There is a limited exception for public disclosure of private facts, but an accident scene in public is, by definition, not a private. If the interest is in securing privacy, that privacy is not furthered by only stopping people from taking pictures–people can watch. Stopping people from taking pictures only stops later publication, and the First Amendment has a big problem with that. So this exception will give police the wrong idea.

    Further, inasmuch as this section recognizes a privacy interest in public, it will curtail law enforcement from being able to conduct searches in public without a warrant. The provision recognizes, in statute, a reasonable expectation of privacy. Law enforcement may need warrants in many more instances than they currently do. The legislature should carefully consider the unanticipated consequence of this provision. People do not have a reasonable expectation of privacy in public right now–for the First Amendment, Cohen v. California, 403 U.S. 15, 21 (1971) (recognizing an interest in “privacy of the home” from unwelcome views and ideas, and that the interest was not present in public), and the Fourth Amendment, Katz v. United States, 389 U.S. 347, 351 (1967) (observing that the Fourth Amendment does not protect from searches what a person “knowingly exposes to the public.”). When you enter the public sphere, you generally forgo your right to be private, and your right to not be offended by others. This exception runs counter to that doctrine in U.S. Constitutional law, leaving officers and municipalities vulnerable to civil litigation.

    Therefore exception (c)(4) should be deleted.

  7. Exception (c)(5) is fine, offering officers an exception for when they “lawfully enforce court rules.” If the court rules happen to be bad, then the problem is not with the officers who enforce them, but the rules themselves.

Finally, Other Things the Act Doesn’t Do that it Should

  1. The law should provide for training and development of policies for departments. The law is supposed to clear up the rules. It sort of does that, but it could be more precise. Officers should be able to easily answer the three hypothetical questions I posed above. 
  2. Many officers remain confused about when they may seize evidence from an innocent citizen who documents illegal activity. Some police believe they may, or must, seize that recording as evidence, and do so without a subpoena or warrant. Some police believe they may use a seized camera. Some police have deleted seized video. The law must protect citizens’ property rights with respect to cameras and recordings. The law should make this clear to officers. 
  3. The Act should allow for reasonable attorneys’ fees. The people who most need the ability to hold accountable those officers who abuse their power are the same people least able to afford an attorney. For similar reasons, a host of other civil rights actions in Connecticut award reasonable attorneys’ fees. See, e.g., CGS §§ 31-51q, 52-571d, 46a-104, 46a-98a. This Act should follow in kind.

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