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:
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.DONATE
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