HB 2539: Law Enforcement; Recording; Private Right of Action

A BILL FOR AN ACT

RELATING TO RECORDINGS OF LAW ENFORCEMENT ACTIVITIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

RECORDING LAW ENFORCEMENT ACTIVITIES

     §   -1  Definitions.  As used in this chapter:

     "Law enforcement activity" means any activity by a law enforcement officer acting under the color of law.

     "Law enforcement officer" means any public servant, whether employed by the State or subdivisions thereof or by the United States, vested by law with a duty to maintain public order, to make arrests for offenses, or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses.

     "Record" means to capture or attempt to capture any moving or still image, sound, or impression through the use of any recording device, camera, or other device capable of capturing audio, moving images, or still images, or by way of written notes or observations.

     §   -2  Right to record law enforcement activities.  A person neither under arrest nor in the custody of a law enforcement officer shall have the right to record law enforcement activity and to maintain custody and control of that recording and of any property or instruments used by that person to record law enforcement activities; provided that a person under arrest or in custody of a law enforcement officer does not, by that status alone, forfeit the right to have any recordings taken before the arrest or before being taken into custody or the right to have any property and instruments used for the recording to be maintained and returned to the person under arrest or in custody.  Nothing in this chapter shall be construed to permit a person to engage in actions that physically interfere with law enforcement activity or otherwise constitute a crime under chapter 710.

     §   -3  Private right of action.  (a)  A claim of unlawful interference with recording a law enforcement activity shall be established under this section when a person demonstrates that the person exercised or attempted to exercise the right to record law enforcement activities pursuant to section    -2 and a law enforcement officer acted to interfere with that person's recording of a law enforcement activity, including by:

     (1)  Intentionally preventing or attempting to prevent that person from recording law enforcement activity;

     (2)  Threatening that person for recording law enforcement activity;

     (3)  Commanding that the person cease recording law enforcement activity when the person was otherwise authorized by law to do so;

     (4)  Stopping, seizing, searching, ticketing, or arresting that person because that person recorded law enforcement activity;

     (5)  Unlawfully seizing property or instruments used by that person to record law enforcement activity;

     (6)  Unlawfully destroying or seizing a recorded image or recorded images of law enforcement activity; or

     (7)  Copying a recording of law enforcement activity without the consent of the person who recorded it or approval from a court of competent jurisdiction.

     (b)  It shall be an affirmative defense to a civil action under this section that the law enforcement officer had probable cause to arrest the person recording the law enforcement activity for a crime under chapter 710 at the time of the law enforcement officer's conduct.

     (c)  A person subject to unlawful interference with recording law enforcement activities under this section may bring an action for any violation of this section in any court of competent jurisdiction for damages, including:

     (1)  Punitive damages;

     (2)  Declaratory and injunctive relief; and

     (3)  Other remedies as the court may deem appropriate.

     (d)  In any action or proceeding brought pursuant to this section, the court may award a prevailing plaintiff reasonable attorneys' and expert witness fees.

     (e)  Any action or proceeding brought pursuant to this section shall be commenced no later than three years after the date on which the violation of this section was committed.

     §   -4  Preservation of rights.  The rights under this chapter shall be in addition to all other rights and remedies available pursuant to law."

     SECTION 2.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  This Act shall take effect upon its approval.

Report Title:

Law Enforcement; Recording; Private Right of Action

Description:

Establishes the right of a person to record law enforcement activities.  Establishes a private right of action for any violation of the right to record law enforcement activities.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.