California Assemblyman Matt Dababneh (D-Encino) has introduced a bill making it illegal to conspire to video record a violent felony. Simply stated, this law would—like the preexisting laws discussed below—incriminate the cameraman if he and the attacker were acting in cahoots, and it would also enhance the attacker’s sentence.
This bill—introduced as AB 1542 and referred to as Jordan’s Law—is well-intended legislation aimed at protecting crime victims, but it would likely cause non-conspirators to fall under suspicion and, consequently, deter third-party witnesses from making valuable and constitutionally protected recordings. A wiser approach is to rely upon existing criminal laws that already criminalize this behavior and preserve our free speech rights.
First of all, it is already illegal under Penal Code section 182 to conspire to commit a crime. The difficulty lies in proving that the alleged conspirator committed an overt act in furtherance of the crime. If two thugs agree that one of them will assault someone and the other will record it, then does recording it actually further the assault? There are credible arguments on both sides.
However, what about criminal liability for aiding and abetting? Penal Code section 31 makes “all persons concerned in the commission of a crime” guilty of aiding and abetting, and Penal Code section 971 provides that accessories to crimes may be prosecuted as principals. This principle covers everything from convincing someone to commit a crime, to providing the resources necessary to commit it, to driving the getaway car, and helping to conceal it. A third party can actually be charged with it for shouting “hit him!” during a fist fight because it encourages the crime. A person who plots to videotape a violent felony is therefore just as guilty of that felony as the attacker under the theory of aiding and abetting.
This law appears to offer no legal upside, but it would impose considerable costs to innocent bystanders. It imposes an undue burden on third-party witnesses who record the crime and subjects them to criminal suspicion. Section (b)(2) of the proposed legislation provides that submitting the recording to law enforcement “at the first reasonable opportunity” may be treated as evidence of the cameraman’s innocence.
Does that mean that if bystanders don’t submit their videos to law enforcement, then they’re probably guilty? Will bystanders who post their videos to social media automatically become suspects? Can police officers now threaten to arrest bystanders unless they hand over their devices—and how long can the police hold onto those devices, and what happens if they find unrelated incriminating evidence while fishing through those devices?
This poses serious questions for an open society that increasingly relies upon the free flow of information. This law would likely yield two unintended consequences: (1) distrust of law enforcement among younger Americans will increase, and (2) bystanders will be less likely to record these events.
Why do we want people recording violent felonies, anyway? is the question you may be asking. Well, because video can be very compelling evidence. It can identify the assailant and depict the depravity of the crime. It can corroborate the victim’s account of the incident—or vindicate an innocent suspect. It can identify additional witnesses. It tells a useful story.
Shouldn’t people put their phone downs and help the victim or call 911? Perhaps, but that’s a personal judgment and there are a lot of factors at play. What if someone else is calling 911? What if attempting to intervene would put the witness at risk of physical harm? We can criticize the decision to record if we wish, but there are a lot of assault victims out there who wish there was some sort of video evidence to prove their criminal or civil cases.
If law enforcement cannot prove conspiracy under Section 182 or aiding and abetting under Sections 31 and 971, then it cannot prove conspiracy under this proposed law. Jordan’s Law states that the bystander is guilty if acting “with the intent to encourage the commission of the underlying violent felony.” Again, this would already render the bystander guilty of aiding and abetting. So, what exactly would this new law accomplish other than scaring innocent bystanders away from recording these incidents?
I believe Assemblyman Dababneh’s statistics that social media-motivated felonies are on the rise, and I see no problem with the law’s one-year sentencing enhancement for the attacker, which actually is new. Raising attention that this behavior is illegal and will be prosecuted is valuable, but we can and should do that without putting innocent bystanders in legal jeopardy and chilling their lawful exercise of speech.
Ryan T. Darby is a free speech attorney in San Diego.