STAND. COM. REP. NO. 2525

Honolulu, Hawaii

RE:    S.B. No. 2439

       S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Twenty-Eighth State Legislature

Regular Session of 2016

State of Hawaii

Sir:

     Your Committee on Judiciary and Labor, to which was referred S.B. No. 2439 entitled:

"A BILL FOR AN ACT RELATING TO LAW ENFORCEMENT,"

begs leave to report as follows:

     The purpose and intent of this measure is to:

     (1)  Establish exceptions to the offense of obstructing government operations and the offense of violation of privacy in the second degree for a person making a video or audio recording or photograph of a law enforcement officer while the officer is in the performance of duties in a public place or under circumstances in which the officer has no reasonable expectation of privacy; provided that the officer may take reasonable action to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order; and

     (2)  Establish a one-party consent exception for a person who intercepts a wire, oral, or electronic communication that involves a law enforcement officer when the person is not a party to the communication, under certain circumstances.

     Your Committee received testimony in support of this measure from The Libertarian Party of Hawaii and one individual.  Your Committee received testimony in opposition to this measure from the Department of the Prosecuting Attorney, City and County of Honolulu; Office of the Prosecuting Attorney, County of Kauai; Police Department, City and County of Honolulu; and one individual.

     Your Committee finds that with the popularity and widespread use of smart phones with video or audio recording and photographing capabilities, recordings and photos of law enforcement officers who are exercising their duties have been used as evidence in police conduct matters or widely disseminated via social media.  However, such recordings and photographs may be seen as obstructing government operations or an invasion of privacy.  This measure establishes an exception under certain circumstances to enable a person to record or photograph a law enforcement officer exercising the officer's duties without violating the law.

     Your Committee notes the concerns raised in testimony in opposition to the provisions in this measure that establish an exception for a person to intercept a wire, oral, or electronic communication involving a law enforcement officer when the person is not a party to the communication.  This exception may have unintended consequences, especially because "law enforcement officer" is broadly defined under section 803-41, Hawaii Revised Statutes, to include any officer in the State or political subdivision who is empowered by law to conduct investigations or make arrests for certain offenses.  Accordingly, deputy prosecutors are law enforcement officers under this definition and the exception could have a chilling effect on law enforcement communications, hinder effective investigation and prosecution of criminal activity, and jeopardize the safety of crime victims, the public, and individuals who are in law enforcement custody.

     Accordingly, your Committee has amended this measure by:

     (1)  Deleting the language under section 3, which would have established a one-party consent exception to intercept communications that involve a law enforcement officer;

     (2)  Inserting an effective date of January 7, 2059, to encourage further discussion; and

     (3)  Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

     As affirmed by the record of votes of the members of your Committee on Judiciary and Labor that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2439, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2439, S.D. 1, and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Labor,

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GILBERT S.C. KEITH-AGARAN, Chair