Filming the Detectives
As cell phone cameras have become nearly ubiquitous, "citizens are facing increased harassment by police officers who don't like being filmed or photographed," state Sen. Craig Estes, R-Wichita Falls, told members of the Senate State Affairs Committee on April 29.
And that includes residents of Texas, he said, which is why he's hoping his colleagues will agree to pass Senate Bill 897, which would create an affirmative defense to prosecution for interference with official duty or disobeying a lawful order for individuals prosecuted for filming or photographing cops working the beat.
Indeed, although filming police is generally legal, disobeying a lawful order or interfering with police carrying out their official duties is not and finding the dividing line between the two can be the trick – just ask Antonio Buehler who has had several notable clashes with Austin Police.
Police have arrested Buehler several times during incidents where Buehler and members of the group he founded, Peaceful Streets Project, have been filming officers at work. According to police, he's been interfering; according to Buehler and his attorney, Joe James Sawyer, police have harassed Buehler because of his outspoken involvement in another and unrelated situation where Buehler witnessed and photographed a controversial arrest early on New Year's Day 2012, Sawyer has said. In April, Buehler was actually indicted for failing to obey a lawful order in connection not only with that NYD event, but also in connection with three subsequent incidents during which he and other members of PSP were filming cops making arrests Downtown.
The Estes bill seeks to affirm that filming is, in fact, legal and to provide some recourse for individuals who believe they've been targeted because of their activities either photographing or recording cops at work. It's "vital that the harassment be stopped," he said.
As originally filed, the bill also created a separate cause of action for individuals who could prove they were prosecuted, but subsequently acquitted, for interfering, failing to obey, or assaulting a police officer, connected to their filming of police action. The provision would have allowed a person to recover attorney fees and three times the value of any recording equipment damaged by police during a filming or photography incident. That measure was pulled, however, and a caveat was instead inserted at the behest of police that would instead allow police to forbid a person from broadcasting live in certain situations where officer safety might be implicated, like during a SWAT call-out, Estes said. Estes said he would prefer to pull that provision out if possible.
Indeed, sticking that provision into the bill meant that those who had planned to testify in favor of the measure – the Texas Press Association, National Press Photographers Association, and the Texas Association of Broadcasters – pulled their nod of approval. Stacy Allen, a media lawyer with Jackson Walker, who testified on behalf of the TAB did not mince words: Adding the caveat would be an unconstitutional prior restraint on the media.
Whether the bill can be rehabbed and passed out of committee is unclear. Sen. Robert Duncan, R-Lubbock, the committee chair, wondered if the law would even be necessary if filming is already legal in the state. Ultimately, Estes told the committee, the point of the measure is simple: "Police shouldn't be doing anything in public that they fear being recorded," he said.
The bill, co-authored by Dallas Democratic Sen. Royce West, was left pending.