Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

SB-1206

Title:

AN ACT CONCERNING THE RECORDING OF POLICE ACTIVITY BY THE PUBLIC.

Vote Date:

4/14/2011

Vote Action:

Joint Favorable Substitute

PH Date:

3/23/2011

File No.:

SPONSORS OF BILL:

Judiciary Committee

REASONS FOR BILL:

There have been numerous incidents throughout the nation in which citizens have been harassed, threatened and arrested for recording what would seem to be public action by police officers.

Substitute Language: Clarifies the peace officer will be liable to a person recording police activity if such peace officer has no reasonable grounds to believe he is acting to (1) lawfully enforce a criminal law, (2) protect public safety, (3) preserve a crime scene or (4) safeguard the privacy interest of any person.

RESPONSE FROM ADMINISTRATION/AGENCY:

Martin M. Looney, State Senator: Supports this bill. In Connecticut, citizens have a right to record police officers in the performance of their duties, However, there have been recent incidents in which officers harassed and threatened citizens who were attempting to exercise this right. I believe that creating a possible cause of action against officers who attempt to intimidate citizens in this manner would serve as a deterrent to this behavior. Officers who are following appropriate law and procedure should not object to this recording so long as the recording does not interfere with the officer's ability to perform his or her appropriate duties.

Division of Criminal Justice: Opposes this bill. While the concept of this bill may have some merit, as it is now proposed is so broadly drawn or vaguely worded that it may raise very real prospects of unintended and potentially dangerous consequences.

While we certainly doubt that it would be the intent of the proponents, this bill would have the affect of placing serious restrictions on the ability of the police to maintain control of crime scenes and investigate and solve crimes in a manner that is sensitive to the privacy interest of innocent victims, witnesses and potential suspects who may be innocent. (Addressed in substitute language)

This bill could impede or even jeopardize criminal investigations. Details of crime scenes are often kept confidential since it is not uncommon for a crime to be solved because of details that are know only to the person who committed the crime and to those familiar with the crime scene. Could a police officer who prohibited the recording of investigators “acting in the performance of (their) duties” at a crime scene be sued under this bill?

This bill places no limitation on anyone, including the media, on the nature of what would be considered interference with the right to record. This would include not only processing a crime scene but also interviewing victims and other witnesses in public areas. Could witnesses be exposed to danger if their photos or images were obtained by the wrong people or publicized in the media. What about the innocent victims of crime? Should their suffering be put on public display?

What if a homeowner whose house is being searched pursuant to a warrant invited the evening news into the house to record the search? As long as the photographer did not hinder or interfere with the search, the police would have to weigh the risk of civil exposure if they tried to abort the filming.

In conclusion, while there may have been an isolated incident that gave rise to this legislation, the bill as now written is far too broad and raises serious concerns and ramifications that far outweigh any concerns raised to date. Unless there is clear evidence of widespread and continuing problems, this bill should be rejected. It is bad policy to try to write a broad statute to fix a perceived problem.

Danny R. Stebbins, Acting Commissioner, Dept. of Public Safety: Opposes this bill. Law enforcement functions affected would include processing crime scenes and interviewing witnesses in public areas. This would also include videotaping of deaths or serious injuries before notification to family is made. Videotaping in a crime zone prior to evidence being evaluated and secured may compromise the evidence and subsequent prosecution. Witnesses could be exposed to problems if their pictures or images are obtained by the wrong people or publicized by the news media in papers or on TV.

Police officers need to be able to do their jobs without being subjected to statutory civil liability.

Deborah Fuller, External Affairs Division, Judicial Branch: We are concerned that the proposed language is overbroad because there is no limitation as to where it applies. There are numerous areas where, for a variety of reasons, photography, videotaping or otherwise recording an image is not allowed. This bill, as drafted, would prohibit a peace officer from stopping a person taking pictures in such an area from doing so. While the bill does state that the person cannot obstruct or interfere with the peace officers' performance of their duties, it does not address the situation where the duties are stopping someone from taking a still or video image. Judicial Marshals, who are peace officers and thus would be covered by this bill, are responsible for enforcing the rules regarding cameras in our courthouses. These rules, which are based in large part on security concerns, allow cameras to be used only under certain circumstances and otherwise prohibit persons from taking photographs or video images in the courts. This bill would prohibit Judicial Marshalls from stopping someone who is violating these rules.

NATURE AND SOURCES OF SUPPORT

Sandra J. Staub, ACLU-CT, Legal Director: Supports this bill. Allowing civilians to record police conduct prevents police misconduct. Police misconduct is most likely to occur when the police are dealing with politically powerless groups: the young, the poor, the minorities, groups that have fewer resources and abilities to bring complaints. When police officers know their actions are likely to be recorded, they have an incentive to be on their best behavior whenever they deal with the public. Recordings create a genuine threat that police misconduct will be reported and taken seriously. Recordings of police arrests can in some cases provide vital exculpatory information. Human memory is flawed under the best of circumstances, and under stressful situations is even less likely to be accurate. Pictures and videos accurately capture information that might be missed in the heat of the moment, and provide important evidence for juries to consider at trial.

Police are also protected by recordings. In the absence of proof, an angry arrestee can bring a case against the police for misconduct. In a heated moment, under the influence of alcohol or drugs, an arrestee's memories of how an incident happened may be very different from what actually occurred. Recording of police in their work protect the police from frivolous lawsuits by providing disinterested proof that no misconduct took place.

James Cersonsky: Supports this bill. On Oct. 2,2010 the New Haven Police Department and liquor agents entered a club in riot armor and began to shout insults and rough handle students, although no students were involved in any altercation. When students took out their cell phones to record police actions, the police ordered students to put away their phones, tasered a student for failing to put his away, and threatened students who were recording video with their phone, shouting “Anybody else? Who's next?” When the videos were made public the, Mayor DeStefano condemned the police raid and issued a statement that citizens have the right to use their phones to record the police.

I agree with Mayor DeStefano that recording police activity is a fundamental American right.

Megan Fountain, New Haven Against Brutality: Supports this bill. In New Haven, when the Police Chief has attempted to discipline or dismiss abusive officers, he has faced a revolt from the police officer's union and their lawyers, and he has backed down. That leaves the victims—poor African Americans and Latinos with no money for private lawyers—to advocate for themselves in courtrooms where prosecutors and judges routinely take the word of the officer against their word. Without video evidence, it is extremely difficult to build a case against an officer and rid the police force of abusive officers. Video recordings are the only tool that powerless victims can use to get a fair hearing in court.

Mario Cerame: Supports this bill. Because of advancements in technology, everyday folks now have the ability to document police conduct easily, cheaply and casually. A number of these incidents between police and civilian recorders have appeared in the news lately. These episodes glean considerable media attention, but many incidents go unreported.

There seems to be a consensus in our state that there is a right to record police. Police officers need a bill now. The vast majority of police officers are hardworking men and women who risk their lives on a daily basis for our safety. These public servants require clear policies on what is permissible and what is not. They need to make quick decision in dangerous situations. They cannot work with a vague policy. The legislature must act now in giving clear guidance to officers, courts and civilians on what is permissible and what is not.

I do have some concerns about the bill. First there is no “intent” element to this statutory cause of action, and there should be, else accidental or unforeseeable conduct that interferes with the right to record would incur liability.

This would lead to absurd results, and is easily cured with simple language.

Second, there is no reasonable “place” restriction, which could also lead to absurd results. For example, someone recording in a courthouse where recording is restricted,

Third, while the scope of the bill neatly tracks the language of 53a-167a interfering with an officer, the lack of specificity is a problem for officers and civilians. If an officer is self conscious of being recorded, is that hindering? To better aid and inform officers and civilians, I would limit the interference to physical interference.

Fourth, I would mandate training on this issue for all police in the State of Connecticut. The men and women of law enforcement deserve such training so as to not be vulnerable to law suits for inadvertently violating federal civil right.

Jim Kozlowski: Supports this bill. If police are not doing anything wrong, they should have no objection to being recorded by members of the public while they are in a public setting.

Andrea Prichett, Berkley Copwatch: Supports the bill. For many Americans, police represent the frontline of our democracy. There is no other government employee or worker who is vested with the awesome power to actually take life. Given that police officers hold this unique position, a potent check on that power is in our right to witness the conduct of officers, and to report to our city leaders how city policy is being carried out. For all of the legislation that is passed, and the promises that are made to the people by our elected representatives, we can truly measure the health and vitality of our local democratic structures when we attempt to observe police activity.

Amy Stegall: Supports this bill. There have been many comments made by legislators in recent months about the transparency of government. I am hopeful that these comments are truthful. Ensuring that citizens are able to record police in public places is a related piece of government transparency, so I would urge you to support this measure.

NATURE AND SOURCES OF OPPOSITION

Chiefs Anthony Salvatore, James Strillacci, Connecticut Chiefs of Police Assoc. Oppose this bill. With the proliferation of portable video, we teach our officers to assume that they're on film and to behave accordingly. But we are concerned that the bill's breadth would penalize officers from protecting the privacy of helpless crime or accident victims, and could expose witnesses or informants to retaliation.

Connecticut Conference of Municipalities: While CCM appreciates the intent behind this proposal, we are concerned about the increased liability exposure through increased litigation. CCM urges the committee to obtain a fiscal note prior to taking any further action on this bill.

Eric Brown, Staff Counsel Connecticut Council of Police Unions, AFSCME, Council 15:

Opposes this bill. We ask our police to stop criminals, frequently by any legal force or means necessary. We cannot have them do their jobs, and at the same time have them looking over their shoulders every time they make split-second decisions in the public interest. When police officers second-guess themselves, they get hurt, and the public safety is placed in jeopardy. We need to honor our police officers, not treat them with contempt. This bill implies contempt for all police officers. This is a bad bill which shows a blatant distrust of our police officers, and a lack of recognition for the jobs they do. And it should die here in the committee.

Reported by: George Marinelli

Date: April 20, 2011