before the Texas Select Committee on Emerging Issues In Texas Law Enforcement
in opposition to HB 2918
March 26, 2015
I am the Founder and President of the Constitution Society, website at http://constitution.org. I urge the Texas Legislature not to adopt HB 2918, or similar proposals, to increase any penalties for recording peace officers, while performing their duties, under the alleged claim that such recording constitutes interference.
Federal courts have been routinely striking down prosecutions of citizens recording peace officers while performing their duties. This bill, if enacted, would draw judicial challenges, embarrassment, and large expenditures by the state to defend it, and the state would almost certainly lose.
This committee may, however, amend this bill, to take it in a more constitutional direction, to provide:
No state or local official may discriminate for or against any person investigating a matter of public concern, regardless of whether they are affiliated with an institution (“news media”) or not.
No person shall be arrested or prosecuted for interference with an official in the performance of his duties unless the interference is physical and is not done as defense of oneself or others from unlawful actions by an official.
No person shall be arrested or prosecuted for merely recording, using any audio, video, or other device, any encounter between peace officers and civilians.
Officials may not prevent recording of their activities while on duty, by seizing or damaging the recording device, obscuring its view, or turning it off.
Officials may not seize recordings except temporarily to make copies, after which they must be returned to the operator of the device or his attorneys or successors.
It shall be a defense against prosecution for any violent offense that, if an audiovisual recording device was available at the scene, it was turned off, obscured, or directed away from view of the events.
Officials shall not bar any person from merely bringing recording devices into any public building, including courthouses, and may not bar recordation of events, such as hearings, trials, or conferences among judges, witnesses, or attorneys, except that a court may order anyone recording to do so in a way that protects the identities of jurors or witnesses, or to defer publication of the recording until it may be done without prejudice to the cause of justice.
Officials shall make a compete audiovisual recording of any execution of a search or arrest warrant, interrogation, conference, or negotiation with any suspect or witness to a crime, or with their attorneys, including plea negotiations, and true, complete copies of such recordings must be made available to all parties or attorneys in the case at least one day for each hour of recordation before any hearing or trial, and must allow such recordings to be entered into evidence.
Any person recording activities of public officials whose recording or recording device is lost, damaged, or destroyed by or under the influence of public officials, shall be entitled to civil damages of at least $10,000 for each recording or device, plus attorney fees and court costs.
Violation of the above by any official shall be punished by at least two weeks of unpaid suspension, termination, or up to ten years imprisonment, for each offense.
I urge this committee to either reject this bill, or amend it as outlined above.