It’s not often that my passion (photography) and my paycheck (being a lawyer) cross paths. But over the last year or so, I have seen examples of the two intersecting in very interesting ways. Just recently, Colorado introduced HB -1290. In short, this piece of proposed legislation would make officers and police departments civilly liable for damage done to a photographer’s equipment should the police intentionally interfere with a person’s right to record their actions. This appears to hold true for both video and still photography. In addition to any compensation for damaged equipment, the photographer/videographer could also receive a civil penalty award of up to $15,000.00 and attorney’s fees and costs. The officer may also be charged with ‘tampering with physical evidence’. It appears clear that Colorado is trying to send a message to law enforcement that they will be held accountable for their actions and that the public can, and should be, a prime witness.
Colorado has had some recent issues with police and recorded police conduct. To be fair, it is not all police departments and obviously not all police officers. Nonetheless, there has been enough media attention thrown on the issue to apparently make several individuals propose this pending legislation. I also believe this is a preemptive action from the backlash of public opinion on recent national cases involving the deaths of minorities at the hands of the police (including a new incident making national attention at the very moment this blog was being written!) I do not think Colorado’s House Bill is protecting just the professional media outlet photographer/videographer. I think the bill is aimed at protecting anyone with the ability to record an officer’s action. With today’s complicated smart phones with built in cameras, this means just about everyone could be protected from recording the police.
Not all states appear to be moving in the same direction. Apparently Texas has a similar bill moving in the opposite direction. House Bill 2918 would make it a misdemeanor offense for any private citizen to record police within 25 feet of the officer. In addition, any citizen that is armed could not record police activity within 100 feet of the officer. Note that the language only addresses ‘private’ citizens. Radio or television organizations with an FCC license would have the right to record police apparently without the distance limitations. Citizen safety appears to be the reasoning behind the bill. It will be interesting to see how both of these bills fair in the near future and how many other states follow either Colorado or Texas. Having a close friend who is an officer, I’m curious to get his personal opinion on the issue.
As a photographer, I think it is important to get in the correct position to capture that amazing image. But as a lawyer, don’t think just because you have a camera in your hands that some kind of creative force gives you license to ‘get the shot’. The law I think most photographers break, is trespassing (mostly on train tracks). Keep in mind that because a location is open to the public doesn’t mean that it’s public property. Parks and recreation areas are prime examples. Yes, your taxes may have paid for the facility, and yes, you are free to go there during the day, but most parks and facilities have hours of operation. Visiting them outside of those hours is trespassing, plain and simple. Even the federal government recently attempted to require photographers to purchase a permit to take pictures on federal wild lands. This included both the professional photographer and the random visitor with a cell phone. Fines could be up to $1,000.00. I’m not sure the old saying ‘it’s better to ask for forgiveness than permission” will work with most judges.
I will keep an eye on Colorado and Texas out of personal interest both as a photographer and a criminal defense lawyer and will hopefully provide future updates.
Keep the interesting parts of life in focus.