SB 35 – Recording Police Activity

Sen. Banks has introduced SB 35 which makes a law enforcement officer liable in a civil suit if the officer interferes with an individual’s videotaping or photographing an officer while the officer is engaged in his official duties. It creates an exception if the officer reasonably believes that the interference was done to enforce the law, protect public safety, preserve a crime scene or criminal investigation, or enforce a court rule against video taping court proceedings.

First, this bill should clarify whether it intends individual liability or municipal liability. Under the Indiana Tort Claims Act, you can’t sue a government employee directly, you have to sue the governmental entity the person works for. There are exceptions for when the person was clearly acting outside their scope of duty and the plaintiff sufficiently alleges the individual liability of the government employee. This statute kind of looks like it’s creating personal liability, but I sort of doubt that’s really the intent.

Second, I’d recommend a specific exception for where the officer has probable cause to believe that the recording device contains evidence of a crime or is being used to commit a crime.

Third, I’d suggest consideration of an objectively reasonable officer standard such as they use in Fourth Amendment jurisprudence instead of the subjective reasonable belief standard that seems to appear in this statute. This gets you away from the whims of individual intent a little bit, and it gets you away from the need to have a jury trial every time you want to determine whether a seizure or interference constitutes reasonable police behavior; a process that is resource consuming and inconsistent.

I like the idea of protecting law abiding citizens who are just video taping the proceedings. But, people who are committing crimes shouldn’t get extra protection just because they jam a camera in the officer’s face.