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New questions about Texas’ scandalous “Cop Watcher” bill

New questions about Texas’ scandalous “Cop Watcher” bill

What’s the *real* problem with HB 2918?

The Texas legislature has a reputation for creating headlines, and HB 2918, authored by Dallas-area state Representative Jason Villalba (R-HD 114), might just be the “lege” scandal that we’ve all been waiting for.

Texans don’t like it when you mess with their right to hold government accountable—especially when it comes to police action—and Villalba’s HB 2918 appears to do just that.

Citizens, advocates, and journalists alike are coming out in opposition to a bill that would restrict the rights of everyday citizens and bloggers to film the actions of police officers. The Dallas Republican is even taking heat from his own caucus, with colleagues speaking out publicly against the bill’s filing:

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Villalba’s “cop watching” bill amends and adds to Section 38.15 of the Texas Penal Code, which applies a criminal negligence standard to civilian interference with police business. The problem is that the Villalba bill characterizes the filming or documenting of police action as “interference.”

Here’s the controversial language (emphasis mine):

(f)For purposes of Subsection (a)(1), an interruption, disruption, impediment, or interference that occurs while a peace officer is performing a duty or exercising authority imposed or granted by law includes a person:
(1)filming, recording, photographing, or documenting the officer within 25 feet of the officer; or
(2)filming, recording, photographing, or documenting the officer within 100 feet of the officer while carrying a handgun under the authority of Subchapter H, Chapter 411, Government Code.

This creates a statutory buffer zone between the police and almost anyone who wants to record what’s happening—and increases that buffer zone if you’re legally carrying a firearm.

I say “almost” because the bill carves out a big exception for “news media.”

(g)It is a defense to prosecution for an offense under Subsection (a)(1) based on conduct described by Subsection (f)(2) that the interruption, disruption, impediment, or interference was caused by a person who, at the time of the offense, was:
(1)a news media employee acting in the course and scope of the person ’s employment; or
(2)employed by or working with an organization or entity engaged in law enforcement activities.

This is how the bill describes “news media”:

(2)”News media” means:
(A)a radio or television station that holds a license issued by the Federal Communications Commission;
(B)a newspaper that is qualified under Section 2051.044, Government Code, to publish legal notices or is a free newspaper of general circulation and that is published at least once a week and available and of interest to the general public in connection with the dissemination of news or public affairs; or
(C)a magazine that appears at a regular interval, that contains stories, articles, and essays by various writers, and that is available and of interest to the general public in connection with the dissemination of news or public affairs.

If you can tell me with all certainty where Legal Insurrection would fit into that definition, I’ll eat my one-off White House credential. Once again, we have a situation where citizen journalists, bloggers, and online media lags could be left out in the cold depending on what judge this lands in front of.

(The Devil’s Advocate in me says that we would fall under the “magazine” provision in subsection (C). In comments made to Breitbart Texas, Villalba indicated that online publications are intended to fall under this “magazine” exception, but the language of the bill doesn’t make that clear, and I think we’ve all learned from experience that legislative intent is open to interpretation. As for bloggers and independent journalists, Villalba shanked a punt, saying, “we just don’t know what their intentions are…some are intending to interfere.” The issue, he said was the “fear and safety of police officers…they don’t know who is there to help and who is there to interfere.”)

Legally, this bill tapdances around the First Circuit decision Glik v. Cunniffe. In Glik, the court held that a man named Simon Glik had the right to videotape police in action in Boston in 2011. Glik saw what he believed to be an instance of inappropriate force, and whipped out his cell phone camera to record it. He stayed about 10 feet away while he was recording, and did not speak to the officers or the arrestee while he was recording the incident.

This bill ignores that precedent, which is surprising considering how much technology has blurred the lines between everyday citizen and “official” reporter.

Hanging over all of this is the question of the penal code’s criminal negligence standard that nobody seems to want to discuss. Section 6.03 of the Texas Penal Code defines it:


(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

This standard appears in Section 38.15 (a), and applies to the original penal code offenses. Villalba’s bill amends and adds to 38.15, but according to the basic rules governing statutory interpretation, that criminal negligence standard should apply to the added offenses of documenting police officer activity within the statutory buffer zone.

This both makes a huge difference in how we should look at this bill—but also creates new problems.

If this standard is intended to apply to the new additions to the code section, it means that a lot of the fears swirling around about automatic arrest simply for recording within 25 or 100 feet of an officer are unwarranted. “Gross deviations” from a standard of care don’t just happen—which, of course, brings into question the mindset of the people we’re targeting with this bill. Everyday “citizen journalists” don’t normally slip and fall in their own gross deviations—but those looking to do more than just simply document might.

Why are we drawing such an important legal distinction between a CNN employee with a $5000 camera, and a citizen journalist with a $100 GoPro? Non-journalists are hit with a double burden that “official” journalists don’t have to shoulder if they want to get a good shot. This is the real problem, and the point that constituents should bring up when they press Villalba on the issue. It’s an important question, and one that may be answered by digging into the origin of this bill.

A source in the legislature confirmed to me that this bill was pitched to Villalba by police groups concerned with Texas’ growing “cop watcher” trend. (Villalba has since made this clear over the course of several heated Facebook threads.) Groups like Tarrant County Peaceful Streets and Cop Block head out with scanners and video cameras to monitor police activity in the community, and have caused their fair share of controversy—especially in the north Texas area, parts of which Villalba represents.

Look at these two reports from the local Fox affiliate. In both videos you can tell that the anchors have a less than favorable opinion of the cop watcher groups, but they also include footage that depicts these groups in action. It’ll give you a good idea of the varying opinions about what these groups are doing and how cops are reacting.

In both of these videos, you’ll hear the name “Kory Watkins.” Kory Watkins is a north Texas rabble-rouser and president of the now-infamous Open Carry Tarrant County advocacy group. You’ve probably heard of them—they’re the guys who legally carry long guns into public places in an effort to throw the 2nd Amendment into full relief. They’re controversial; they’ve scared people; Watkins himself has toed the line between asserting his rights and allegedly threatening the lives of lawmakers.

They also get in the faces of police, and sometimes, it gets ugly:

The fact that these groups overlap and work hard to cause controversy and gain attention doesn’t absolve anyone of anything, but it does add context, and explains why this bill was written the way it was. These guys are citizen journalists by any standard—as Ed Morrissey once said, there’s no jackass exception to the First Amendment, in Texas or anywhere else.

There’s another bill headed to committee that could give Villalba’s bill trouble. HB 1035, filed by Dallas-area Democratic Representative Eric Johnson, also addresses the recording of police business by everyday civilians and citizen journalists, but instead of creating more restrictions adds on the documentation defense to the list of existing 38.15 defenses.

All I have to say is, I pity the committee tasked with hosting a hearing on either of these bills. You’re going to see a lot of people demanding to know if the legislature is going to protect citizen journalists from police who would rather not be recorded. The potential to escalate is a universal characteristic we see in every situation involving the police and citizens; do we want to put the First Amendment into the hands of a judge or jury with 20/20 hindsight? Questions sent to and received by Villalba on this issue remain unanswered.

However this pans out, one thing remains abundantly clear: Villalba has dug himself a hole he could very well spend the next two years clawing his way out of.

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Comments

Are we talking about “our” Texas? Perhaps this is a mistake and a parallel universe Texas slipped over the line. This guy, Villalba, might as well resign now. What a boob.

Meh. IFFFFF it were ever passed, the courts would make mincemeat out of it.

Rightly. I’m agin it.

    sequester in reply to Ragspierre. | March 16, 2015 at 10:08 am

    Filming a public official in a public place performing official duties is protected by the First Amendment. At least that is what a countless State Supreme Courts and United States Circuit Court’s of Appeal have held.

    Not all police officers know this or care. Nevertheless, if you are arrested and prosecuted for this lawful behavior you are in for a long, very unpleasant and expensive legal fight with the threat of a long jail sentence hanging over you.

    ss396 in reply to Ragspierre. | March 16, 2015 at 10:39 am

    The Courts might well make mincemeat out of it, but when they go judge-shopping for the first and second hearings, it can become a long and expensive process to make that mincemeat. There is no shortage of jackass judges in Tarrant County. Better to not let it get started at all.

Conservative Beaner | March 15, 2015 at 8:56 pm

Jason Villalba I think you need a new address. California, New York, Cuba. I’ll help you pack.

Bless his heart, he was just trying to do something. He must have snuck in on I-10 so don’t blame me.

What’s the *real* problem with HB 2918?

Um, that it stomps on our first and second amendment rights along with our due process right to film the police?

That’s kind of where this joke of a bill begins and ends. Short. Easy.

Villalba is a fascist dunderhead and an embarrassment to the otherwise-great State of Texas.

Here’s the practical problem with the bill from a Defense standpoint – It gives the police free reign to arrest anyone with a camera within 25 feet that is not obviously a news crew. Further, I’m guessing that “25 feet” will be quite liberally construed by the police as “oh, we think you’re close enough” or a bald-faced statement of “the Defendant was within 25 feet of the police officer performing his duty.” Proof issues be damned.

The police will arrest first and maybe, possibly ask a question later, and then write their police report in such a way as to say “well, this person was there, and because of their presence with a camera, we felt it was causing an “interference” and thus couldn’t do our job properly.” Proving EXACTLY where people were for the purposes of prosecution and/or defense will be a DISASTER.

The “Criminal Negligence” language is a red herring. Implementation will be such that the police will always assert interference and negligent conduct, the District Attorney tasked with drafting the “Information” from the officer’s “Complaint” will rubber stamp it as legally sufficient, and the individual WILL be charged with the crime. That Defendant will have to spend a night in Jail, two to three months waiting for Arraignment, then four months to two years awaiting trial (depending on which County Court it lands in). They will also have to bear the associated “costs” that come with being charged with a crime: the cost of hiring an attorney, time away from employment, time away from family, possibly travel expense, possibly confiscated equipment, public shame, etc….

In short, this is all about imposing a “COST” on filming the police. Whenever there is a cost, there will be a decrease in the activity.

The District Attorney here in El Paso is very, very loose with the Charging Instruments regarding crimes. I’ve personally handled cases where we the charge was accepted by the District Attorney’s Office, we got to arraignment and I’ve told the Courtroom DA “There’s no crime here. What he did was not illegal. Period. Dismiss the case.” Or, alternatively, I’ll have absolutely exculpatory evidence (as a co-defendant admits to the crime and exonerates my client, especially in “possession of marijuana” cases). They invariably say “Set it for Trial.” I reply “Fine.”

Four to 18 Months later, we’re set for trial, I have to waste 2 days of my life prepping for a trial that I know Courtroom DA will fold on, because if he actually takes it to trial the JUDGE will berate him for bringing a trial that the Courtroom DA knows to be without merit.

The Judge goes through his “Trial Docket” for that day, putting the cases in order of importance to be heard, calls my case, to which I reply “the Defense is ready, willing and able to proceed, but would inform the Court that the Defense believes the State’s case to be without merit.” At that point, the Judge usually looks at the Prosecutor very sternly and says something like “Prosecutor? Any comment?” At that point, the Courtroom DA, out of options, usually says “Your Honor, we’re going to dismiss this one” and writes on the dismissal paperwork something along the lines of “Prosecutor Discretion” or “Insufficient Evidence.”

But, my client (if paying full rate) is still out roughly $2,000-$3,000 in attorney’s fees, all his lost time from work, travel expenses, and stress for the “waiting” time.

    Ragspierre in reply to Chuck Skinner. | March 16, 2015 at 2:37 am

    So. I’ll put you down as “agin it”, too…

      Yep.. “agin it.” But I thought it prudent to explain some of the real-world background mechanics to non-lawyers and non-criminal practitioners.

      Some of the trial dockets in the Criminal Courts are becoming ludicrous. We just had a case in one of the El Paso County Criminal Courts go to trial on an “Assault Causing Bodily Injury to a Family Member” (aka Assault Family Violence; AFV) that had been on the docket FOUR YEARS. Every time it had previously been set for trial, a “higher priority” trial had been pushed in front of it (meaning the Defendant in the other case was either in Jail, or was set for a ‘special setting’ for some reason).

    Henry Hawkins in reply to Chuck Skinner. | March 16, 2015 at 12:55 pm

    “Here’s the practical problem with the bill from a Defense standpoint – It gives the police free reign to arrest anyone with a camera within 25 feet that is not obviously a news crew.”

    Which is another way of saying everyone with a cell phone, almost all of which are cameras as well. Are cell phones popular? Common among the peasant sea of potential witnesses?

      Also, anyone with dash cams. My vehicle has two, front and rear. And I have a CCL. So it’d be illegal for me to be within 100 feet of /my own car/ should I get pulled over by the police? I could be pulled over for a tail light warning and then arrested for “filming, recording, photographing, or documenting the officer within 100 feet of the officer while carrying a handgun”? What if I drive past (or am stopped at a light) less than 100 feet from anyone else who’s been pulled over, or from any other arrest happening on the roadway?

      Villabla isn’t just a fascist dunderhead; he’s a stupid fascist dunderhead.

      pwaldoch in reply to Henry Hawkins. | March 16, 2015 at 4:22 pm

      Try anyone with a cell phone.

PersonFromPorlock | March 16, 2015 at 12:48 pm

The problem of ‘who is media?’ can easily be settled by creating state or federal journalism licenses. Licensing of a constitutionally-guaranteed right prior to its exercise was found permissible by the Supreme Court in Heller.

    Either you need a /sarcasm tag, or you’re a MORON (or worse, a TROLL).

      DaveGinOly in reply to Chuck Skinner. | March 16, 2015 at 4:11 pm

      The fact that you object so vehemently (and correctly) to his suggestion points out a major flaw in the Heller decision. It’s blatantly obvious that journalists and citizens alike do not need permission to exercise their rights under the First Amendment. Likewise, nobody needs a permit to exercise rights under the 4th or 5th Amendments. Why can a permit be required for the exercise of Second Amendment rights? (And we all know that a permit is evidence of “permission,” by itself proof that what’s being licensed isn’t a right at all. It’s simply not possible to license a person to exercise a right – licenses only grant permission to exercise privileges.)

        PersonFromPorlock in reply to DaveGinOly. | March 16, 2015 at 7:20 pm

        You nailed it. A ‘sarcasm’ tag isn’t needed because the point isn’t sarcastic: that’s really what the Court decided in Heller, curse them.

          See McDonald v. City of Chicago and it’s progeny (Ezell v Chicago and Moore v. Madigan). Further, see Mance v. Holder being litigated currently in the Northern District of Texas.

          In McDonald, the SCOTUS found that firearm ownership IS a right that may be exercised within the home and invalidated the Illinois licensing regime, forcing them to create a mechanism for Concealed Carry Permitting.

          The finding there that the 14th Amendment incorporated the 2nd Amendment against the states blew the door off it’s hinges on the “licensing” front. Expect to see more and more challenges to “licensing” regimes going forward unless they are ABSOLUTELY FAIR and impartial, with very, very specific criteria for denial (which ARE within certain government powers to do in very, very limited ways).

          The Supreme Court largely fixed, or at least opened the door to fix, the hole they left in Heller. Now it’s just a matter of fighting the proper fights in the proper states (California, New York and Illinois) and getting favorable SCOTUS rulings.

There’s also the question of why it is limited to employees of the news media? If someone is the principal and therefore not an employee, suddenly he can’t do his business’ trade?

Then there is also the issue of a radio station that holds a license by the FCC. There are LOT more licenses issued to stations besides the broadcast stations. Any business with two way radios has been issued a license for their station by the FCC. As an amateur radio ham, I have a station licensed by the FCC (which it is ILLEGAL for me to be an “employee” of, to boot.)

Under this statute, the taxi driver with a two way in his cab is an employee of a station licenses by the FCC. That doesn’t seem like the hallmark of a well reasoned law.

Please help us remove Jason Villalba from the Texas legislature! We plan on challenging him in the next Republican primary for HB 2918, a bill making the filming of police a crime: https://www.facebook.com/RecallJasonVillalba

The law would seem to criminalize recording police during your own arrest, or in your home, or at a traffic stop.

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