Bill underscoring right to record police moves to House floor for further debate and amendments

By Jeffrey A. Roberts
CFOIC Executive Director

An amended version of a bill that reinforces the public’s right to record police activities won the tentative endorsement of the House Judiciary Committee on Tuesday on a party-line vote.

Although the Democrat-majority panel advanced HB 15-1290 to the House floor, some members said they want to see further amendments that will make the measure palatable to all stakeholders. Law enforcement officials and prosecutors opposed the bill during testimony two weeks ago and they continue to have problems with the current version, according to legislators.

Rep. Joe Salazar, D-Thornton, said he realizes that more work needs to be done on the legislation, which he noted is one of the first of its kind in the nation.

“I know that this is a messy process,” Salazar said, “…but when you’re in the act of trailblazing, sometimes you smack a rock here and there.”

As amended, HB 15-1290 would allow a civil suit against a law enforcement agency if an officer seizes or destroys a recording without a person’s consent, possibly resulting in damages of up to $15,000. A lawsuit also could be brought if an officer interferes with a recording, retaliates against someone making a recording or refuses to return a recording device “within a reasonable time period and without legal justification.”

The new language spells out a process for an officer to follow if he or she wants to obtain a recording made by a bystander. The officer would be required to provide identification, including badge number, and a “legal reason” for requesting the recording. If the person who made the recording doesn’t voluntarily give the device to the officer or consent to making an electronic copy, the officer could issue a “written order of preservation.” That would require the bystander to preserve the recording until a search warrant can be obtained.

Under the bill, an officer could still temporarily seize a recording device if he or she believes it’s necessary to save a life or to prevent the destruction of evidence prior to getting a warrant.

The ability to preserve evidence in criminal cases was the main concern of law enforcement officials and prosecutors when they testified against the bill April 1. Several also called the measure overly punitive.

Salazar and the bill’s co-sponsor, Rep. Daneya Esgar, D-Pueblo, have said their goal is to encourage law enforcement agencies to better train officers to understand that civilians have a First Amendment right to record police activities unless they are breaking the law or interfering with an officer.

Esgar noted that since the judiciary committee last met on the bill, a South Carolina police officer was caught on video fatally shooting an unarmed man who was running away from him.

“Had there not been a bystander there videoing that fatal incident with his phone, the police officer would not be charged with that murder today,” Esgar said.

Earlier Tuesday, the Colorado Senate gave initial approval to SB 15-217, which would create a process for publicly reporting demographic information on officer-involved shootings.

Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.

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