Lawmakers debate the right to record and keep footage of police

A 12-year old girl in Golden shoots cellphone video of an arrest. Police cuff her and take her phone. A man outside a Lakeside Walmart films a shoplifter’s arrest then ends up in handcuffs himself. A bystander in Denver films while narcotics officers repeatedly punch a man in the face then trip his pregnant girlfriend. The footage is confiscated and deleted by law enforcement. The bystander salvages 55 seconds from a cloud server and leaks it to the media.

These are just a handful of the Colorado cases in the last year motivating a citizen’s right-to-record bill in the State Legislature.

Transparency advocates say it’s high time for a bill like this, which acknowledges the increasing role that citizen video is playing in community relationships with law enforcement.

“Police are not adequately trained for this new world in which basically every citizen has a video camera on their person at all times,” said American Civil Liberties Union Colorado spokesman John Krieger.

“We’re seeing, by and large, that video is exposing police conduct that is both wonderful and horrific. We want to honor the beautiful, and we should, just as much as we should condemn the horrific,” said sponsor Rep. Joe Salazar, D-Thornton. “Video has really just exposed just how much work we have to do.”

Salazar’s bill would formalize people’s right to film police interactions so long as it doesn’t interfere. It would create a penalty of up to $15,000 for police who destroy footage without cause. The bill would also clarify and narrow the provision police currently invoke when confiscating footage — namely that the footage is evidence of a crime and they have a reasonable concern that the filmmaker will delete it.

That exemption, argues the ACLU, needs to be clear and narrow so that police won’t abuse it.

“Police continue to tell people they can’t record or to turn it off. They’re only allowed to do that if it interferes with their job,” said Krieger. “Police continue to try to confiscate footage. The only way they can do that is if they have very real concern that footage of a crime will be destroyed if they don’t confiscate in that moment.”

The Colorado Chiefs of Police vehemently oppose the bill, saying that it’s an unnecessary clarification of existing First Amendment rights that will only make it more difficult for them to do their jobs.

“We’re not going to say people have no right to record,” said Chief John Jackson of Greenwood Village, “but we don’t think there should be these punitive damages assessed… and we believe we still have the right to seize evidence of a crime. I think citizens would be really angry at us [if we didn’t].”

The bill will get its first hearing on the House floor on Tuesday, where an amendment to preserve law enforcement’s right to seize evidence is expected.

Update: HB 1290 got initial approval in the House, Tuesday, after being amended to require that citizens give notice when they feel law enforcement has infringed on their right to record and to require proof of bad faith for the penalty. 

Photo by Jamie Kenny