South Carolina Senator Aims To Criminalize The Recording Of Criminal Activity

from the a-new-high-in-low dept

Here's how stupid legislation is assembled.

HOT BUTTON TOPIC + BRIEFLY CONCERNED LEGISLATOR - COMMON SENSE = A proposed amendment so brain dead, its author should be immediately hooked up to an EEG.

The "hot topic?" The form of recorded violence known colloquially as the "knockout game." Said "game" is played by a minimum of one willing participant and one unwilling participant. The goal is to knock out the unwilling participant with one punch, preferably while being recorded for posterity/evidence. Video is then uploaded to YouTube (or other services) for appreciation by those who like this sort of thing.

The legislator who apparently failed to consider the mind blowing amount of unintended consequences built into his legislation? South Carolina senator Vincent Sheheen.

The amendment? Well, here's what Sen. Sheheen would like to see changed in the current criminal code.

SECTION   1.   Chapter 1, Title 16 of the 1976 Code is amended by adding:

"Section 16-1-65.   (A)   It is unlawful for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60 [violent crimes], during its commission. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be fined not less than five hundred dollars or more than five thousand dollars or imprisoned not more than five years, or both.

(B)   A person who violates the provisions of subsection (A) and who publishes, or otherwise makes the video or audio recording, digital electronic file, or other visual depiction or representation available for public display is guilty of a separate offense and, upon conviction, must be fined not less than five hundred dollars or more than five thousand dollars or imprisoned not more than five years, or both.

(C)   A person who knowingly aids in the commission of a violation of subsection (A) or (B) or is an accessory before or after the fact in commission of the violation of subsection (A) or (B) is guilty of a felony and must be punished in the same manner prescribed in subsection (A) or (B), as applicable.

(D)   The provisions of subsection (A) and (B) do not apply to:

(1)   viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2)   security surveillance in bona fide business establishments;

(3)   accidental or incidental recordings;

(4)   any official law enforcement activities;

(5)   private detectives and investigators conducting surveillance in the ordinary course of business; or

(6)   any bona fide news gathering activities."

So, an amendment aimed at hauling in participants in the "knockout game" (the person holding the camera) will now criminalize all sorts of recordings. Sheheen pitches it this way:

“Really this is another tool for law enforcement to use to make sure that somebody can't claim, 'Oh, I didn't commit that crime, I just videotaped it,' when in reality they were part of the problem in the first place."

Really, this is another tool for law enforcement to make sure that somebody can't record police misconduct or use of excessive force. Sure, the person recording didn't commit the crime being recorded, but they have now committed the crime of recording criminal activity. If a law can be twisted by bad cops to prevent or seize recordings of their dubious behavior, it very definitely will be.

That's only one problematic potential consequence of Sheheen's Folly. Eugene Volokh has more, much more, in his take on the law.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could interpret any citizen action aimed at gathering information as “bona fide news gathering activit[y],” that’s far from clear. It’s an argument I’d make as your defense lawyer, but it’s not an argument you can feel confident about if you’re deciding whether to make the recording. If the law is enacted, any suitably cautious South Carolinian would be well-advised just not to record any crime he sees, if he wants to avoid the risk of prison time.

Sheheen's amendment is ugly all over. While it makes exceptions for "bona fide business" surveillance, it makes no such exception for cameras mounted by private citizens to protect their own property. Someone breaks into your house and you've got the tape to prove it? Guess what: both you and the perp have violated the law.

Volokh points out the problems inherent in proving newsworthiness to prosecutors. The same uphill battle awaits those with accidental or incidental recordings. Try proving that negative in the courts while facing a zealous DA.

Not only does this criminalize citizens' recording (and citizen reporting -- bloggers aren't journalists, etc.) but it has the potential to curtail law enforcement efforts. Stupid people record their own criminal activity all the time but putting this law on the books may make them decide to leave the camera at home. Sure, they're already committing a crime, but why add additional months to the sentence? Why would someone purportedly trying to be tough on (a certain) crime want to discourage the generation of useful evidence?

This kneejerk amendment also overlooks the fact that many laws are already on the books for prosecuting camera-toting friends of assailants. Like aiding and abetting. Or conspiracy to commit a criminal act. There are ways to bring the "cinematographer" down without putting regular, law-abiding citizens at risk of violating an astronomically asinine law simply because they managed to capture evidence of criminal activity with their cell phone or personally-owned surveillance system.

Then there's this:

…or other visual depiction or representation of a violent crime…

Not only will it be criminal to record criminal activity, it will also be criminal to create a graphic novel depicting criminal acts, depict a criminal act in a play, movie, television show or YouTube video, or perform a classic Punch and Judy routine. "Visual depictions" of fake crime? Also a crime. Yes, these scenarios are blatantly ridiculous, but that's precisely what the law states. If Sheheen doesn't want people mocking his stupid amendment with scenarios no self-respecting law enforcement officer (and even some LEOs with no self-respect) would drop the hammer on, then he should have written his amendment less stupidly. Or not at all.

I now turn this over to the comment section, who should be able to top these "what if" scenarios in a heartbeat.

Filed Under: criminal, filming, legislation, south carolina, vincent sheheen