Bill seeks to keep public at a distance in videoing law enforcement actions

by Mina Corpuz, Mississippi Today
January 30, 2023

Anyone who video records Mississippi law enforcement during the performance of their duties in a public space could face a fine and jail time if they are less than 15 feet away, under a bill before the Legislature.

House bill 448 by Rep. Jill Ford, R-Madison, would make it a misdemeanor offense and set a fine for anyone who knowingly records law enforcement activity while less than 15 feet away after an officer has given “a clear, verbal instruction” to step back.

Ford referred comment about the bill to Department of Public Safety Commissioner Sean Tindell, and also reached out to him for input. Tindell said the legislation would provide guidance to the public and law enforcement that 15 feet is the minimum for a perimeter, which would allow an officer to work without interference and a person to record.

“Fifteen feet is five steps. There is nothing that they can't still record from five steps away,” Tindell told Mississippi Today. “It's close enough if you want to film the interaction with law enforcement.”

Videotaping law enforcement during arrests has intensified in the wake of the 2020 death of George Floyd in Minneapolis. A teenager captured cellphone video of Derek Chauvin kneeling on Floyd's neck as he pleaded for his life, and that video became the key to a murder conviction for the former police officer.

The Mississippi bill states that it will not create a right or authorize anyone to record law enforcement activity.

That right already exists within the First Amendment and case law, including a 2017 5th U.S. Circuit Court of Appeals decision stating the First Amendment covers an individual's right to record the police while they carry out their duties.

“Filming the police contributes to the public's ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy,” the court wrote in its decision. “Filming the police also frequently helps officers; for example, a citizen's recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.”

Tindell said the bill is in response to an Aug. 5 interaction in McComb between Eugene Lewis, a Black man, and Mississippi Highway Patrol Trooper Hayden Falvey, who is white.

One of Lewis' brothers, Packer Lewis, recorded a 5-minute Facebook video that shows Falvey dragging Eugene Lewis a few feet, wrestling him onto the grass and holding Lewis down with a knee.

Several times Packer Lewis talks to the trooper and the trooper tells him to stay back, including after Packer Lewis steps closer. After the trooper put Eugene Lewis into his car, Falvey arrested Packer Lewis and another brother at the scene, Darius Lewis.

A week later, DPS released a statement and 40 minutes of camera footage of the incident and said an internal investigation of the trooper didn't find evidence of criminal conduct against Eugene Lewis.

The agency said Falvey stopped the car for speeding and other traffic violations. The trooper also smelled burned marijuana and saw Eugene Lewis' eyes were glassy and bloodshot, according to the statement.

“It created somewhat of a potentially volatile situation,” Tindell later told Mississippi Today about the behavior of Eugene Lewis' brothers at the scene and the trooper not being able to maintain a perimeter.

Existing case law allows law enforcement to set reasonable perimeters, and Tindell said sometimes there is a need for a greater distance, such as at a crime scene, which can be a 50-foot perimeter.

Under HB 448, a person could face up to six months in county jail and/or a fine between $500 and $1,000. The fine and jail time doubles for additional convictions.

There are exceptions in the bill: Recording from under 15 feet can happen during a traffic stop by the driver or passengers and while on private property in an enclosed structure with authority from the owner.

Tindell said DPS trains its officers about citizens' right to record and how to establish a perimeter to conduct an investigation. If the bill passes, the only thing that will change for the agency is the ability to teach about the statute and tell law enforcement that they can cite it, he said.

Tindell has spoken with members of law enforcement who said they support the legislation.

“What this bill does, in my mind, is set forth reasonable parameters by which the public is aware as well as the law enforcement officer is aware of each other's rights and dues,” he said.

The American Civil Liberties Union in Misissippi has a resource on its website about police encounters that includes the right to film, photograph and record the police.

As long as a person does not interfere with police activity or obstruct movements, the person has a right to observe and record events plainly visible in public spaces, according to the guide. A person also doesn't have to hide the fact they are recording because police don't have a reasonable expectation of privacy when doing their jobs.

The police can't demand to see the recording or photo device without a warrant, and they can't delete the images, videos or recordings, according to the guide.

A representative from the ACLU of Mississippi was not immediately available for comment.

But the national ACLU is challenging a law passed last year in Arizona establishing that a person must stay eight feet away when recording law enforcement.

“This law is a violation of a vital constitutional right and will severely thwart attempts to build police accountability,” the organization said in a statement. “It must be struck down before it creates irreparable community harm.”

As far as Mississippi's proposed bill, Tindall said it would be up to law enforcement and agencies to use the correct level of discretion with how to apply HB 448. If the bill is passed, a court could determine whether a law enforcement officer misapplied the law and if the officer's decision went beyond the bounds of reasonableness, he said.

Tindell doesn't see the Mississippi bill as a threat to the First Amendment or transparency. As DPS commissioner, he said his goal for the agency is transparency to allow for accountability and build trust with the public.

“I'm confident that should (the bill) make it through the process and become law, it will be fully vetted and be a good law in which the public and law enforcement understand and respect,” he said.

HB 448 is under consideration by the Judiciary B Committee. Tuesday is the deadline for all committees to report out bills to be considered by the full House of Representatives or Senate.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

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