Legal experts took issue this week with a proposal to create a new felony in Maine when someone records a serious crime occurring but fails to report it to the police immediately.

The bill, under consideration by the Criminal Justice and Public Safety Committee, arose after a constituent complained to state Sen. Matt Pouliot, R-Augusta, about people recording shootings, accidents and other incidents for social media audiences rather than phoning 911.

State Sen. Matthew Pouliot

A backer of the proposal, Caleb Merendino, told the committee that “our youth and my generation seem more interested in the number of hits and views they can get on social media” rather than caring for others by reporting a crime in progress.

Another, Benjamin Swanson, said videos too often “pop up across our Twitter feeds, showing horrible and violent crimes” taken by someone who failed report the crime they watched unfold.

“When a crime is in progress, one of our first inclinations should be to find a way to help,” he said. “However, we see all too often that people prioritize their online presence over helping one another.”

The Maine State Bar Association, the American Civil Liberties Union of Maine, the Maine Association of Criminal Defense Lawyers, the Criminal Law Advisory Commission and other legal groups warned legislators to steer clear of the measure.

Kelly McDonald, president of the bar association’s board of governors, said the bill would undermine justice.

The Maine ACLU’s policy counsel, Michael Kebede, said it “would violate the constitution, shield police from public scrutiny, chill free speech and unduly expand our criminal code.”

Kebede said it would be “bad policy” to enact a new crime that might cause people to think twice before recording police.

“This bill may discourage the very activity it seeks to encourage,” McDonald said. “These recordings may be intentionally taken by an individual on their cellphone, or taken by video recording systems protecting homes or businesses. However, if the state moves to attach criminal liability for taking such a recording and then not turning it over, we would be concerned that individuals or businesses would respond by avoiding such recordings at all in order to avoid the risk of being subject to criminal liability.”

Attorney Walter McKee said Maine has never had a requirement that people report criminal activity.

“This is a very classic ‘Big Brother’ bill,” he said. “Countries of old who were ruled by dictators who encouraged reporting on one’s neighbors had laws just like this and it created a system of fear that tore through the core of those societies.

The risk of potentially facing six months in jail for failing to report something would encourage people “to never record an incident that might involve a crime,” McKee said, resulting in fewer recordings.

Pouliot said, though, that “the first thing that anyone should be doing if there is an accident or a crime taking place is calling 911 and making sure themselves and everyone else is safe and not recording for social media or personal use.”

“For someone who does this and does report an incident there needs to be a serious consequence,” he said.

The committee is slated to take up the measure for discussion next week.


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