BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 256


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          Date of Hearing:  March 24, 2015
          Counsel:               Sandra Uribe



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                  256 (Jones-Sawyer) - As Introduced  February 9, 2015


                       As Proposed to be Amended in Committee

          SUMMARY:  Expands the prohibition against knowingly, willfully,  
          and intentionally tampering with evidence to include digital  
          images and video recordings.  Specifically, this bill:

          1)Specifies that the prohibition against any individual  
            knowingly, willfully, and intentionally tampering with  
            physical evidence includes tampering with a digital image or  
            video recording.

          2)Specifies that the prohibition against a peace officer  
            knowingly, willfully and intentionally tampering with physical  
            evidence to charge someone with a crime or to produce as true  
            evidence at trial includes tampering with a digital image or  
            video recording.

          3)Prohibits a peace officer from knowingly, willfully, and  
            intentionally tampering with physical matter, a digital image,  
            or video recording with the specific intent that the item be  
            unavailable for production.

          EXISTING LAW:  









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          1)Makes it a misdemeanor for a person to knowingly, willfully,  
            and intentionally alter, modify, plant, place, manufacture,  
            conceal, or move any physical matter, with specific intent  
            that the action will result in a person being charged with a  
            crime, or with the specific intent that the physical matter be  
            will be wrongfully produced as genuine or true upon any trial,  
            proceeding or inquiry.  (Pen. Code, § 141, subd. (a).)

          2)Makes it a felony for a peace officer to knowingly, willfully,  
            and intentionally alter, modify, plant, place, manufacture,  
            conceal, or move any physical matter, with specific intent  
            that the action will result in a person being charged with a  
            crime, or with the specific intent that the physical matter be  
            will be wrongfully produced as genuine or true upon any trial,  
            proceeding or inquiry.  (Pen. Code, § 141, subd. (b).)

          3)Provides that every person who, knowing that any book, paper,  
            record, instrument in writing, or other matter or thing, is  
            about to be produced in evidence upon any trial, inquiry, or  
            investigation whatever, authorized by law, willfully destroys  
            or conceals the same, with intent thereby to prevent it from  
            being produced, is guilty of a misdemeanor (Pen. Code, § 135.)

          4)Provides that every peace officer who files any report with  
            the agency which employs him or her regarding the commission  
            of any crime or any investigation of any crime, if he or she  
            knowingly and intentionally makes any statement regarding any  
            material matter in the report which the officer knows to be  
            false, is guilty of filing a false report punishable by  
            imprisonment in the county jail for up to one year, or in the  
            state prison for one, two, or three years.  (Pen. Code, §  
            118.1.)

          5)Provides that every person who reports to any peace officer,  
            or district attorney, that a felony or misdemeanor has been  
            committed, knowing the report to be false, is guilty of a  
            misdemeanor.  (Pen. Code, § 148.5, subd. (a).) 

          FISCAL EFFECT:  Unknown

          COMMENTS:  









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          1)Author's Statement:  According to the author, "Increasingly,  
            as the public captures questionable police practices on video,  
            it is critical that we send a message that altering or  
            deleting these videos will not be tolerated."

          2)Recording the Police:  "The First Amendment protects a  
            significant amount of verbal criticism and challenge directed  
            at police officers."  (Houston v. Hill (1987) 482 U.S. 451,  
            461.)  Moreover, "The First Amendment protects not just the  
            right of the press to gather news - it affords that right to  
            the general public as well. (citation.)  Technology has put  
            the ability to gather and disseminate newsworthy information  
            literally in the hands of anyone who has a cell phone. With  
            increasingly [sic] frequency, events of local, regional,  
            national, and even international significance first and  
            frequently most vividly come to public attention because a  
            bystander saw, recorded, and, often as those events were  
            underway, transmitted what was happening."  (Crawford v.  
            Geiger (2014) 996 F.Supp.2d 603, 614, citation omitted.)

          Several U.S. Courts of Appeals have specifically recognized a  
            First Amendment right to record the police and/or other public  
            officials in a public place.  (See Glik v. Cunniffe (1st Cir.  
            2011) 655 F.3d 78, 85 ("[A] citizen's right to film government  
            officials, including law enforcement officers, in the  
            discharge of their duties in a public space is a basic, vital,  
            and well-established liberty safeguarded by the First  
            Amendment."]; ACLU of Illinios v. Alvarez (7th. Cir. 2012) 679  
            F.3d 583, 595 ["The act of making an audio or audiovisual  
            recording is necessarily included within the First Amendment's  
            guarantee of speech and press rights as a corollary of the  
            right to disseminate the resulting recording."]; Fordyce v.  
            City of Seattle (9th Cir. 1995)  55 F.3d 436, 438 (assuming a  
            First Amendment right to record the police); and Smith v. City  
            of Cumming (11th Cir. 2000)  212 F.3d 1332, 1333 ["The First  
            Amendment protects the right to gather information about what  
            public officials do on public property, and specifically, a  
            right to record matters of public interest."].)

          In California there is no law preventing a civilian from openly  
            recording a police officer carrying out his or her duties in a  
            public place.  However, a person does not have the right to  








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            interfere with the police when recording.  If an individual  
            does interfere with an officer doing his or her work, that  
            person may be charged with obstruction of justice.

          In this day and age where many cell phones have cameras and  
            video recording capabilities, recording an interaction between  
            police and a member of the public is becoming more and more  
            common.  There have been reported incidents of police officers  
            either trying to arrest individuals or destroy photographs or  
            recordings when the officers realize they are being recorded.   
            This bill would subject an officer to felony prosecution for  
            tampering with or confiscating such photographs or video  
            recordings.
          
          3)Argument in Support:  According to the California Attorneys  
            for Criminal Justice, the sponsor of this bill, "In 2000,  
            Assembly Bill 1993(Romero) was signed into law making it a  
            felony for a peace officer to knowingly alter, place, or move  
            physical matter with the specific intent to wrongfully charge  
            another person for a crime. The AB 1993 was inspired by the  
            Los Angeles Police Department Rampart scandal.

          "However, with technological advancements, this law has not been  
            updated to accommodate these developments. Personal mobile  
            phones and other electronic devices now allow individuals to  
            capture images and videos.  This recording capability has  
            provided the public an opportunity to lawfully monitor  
            instances of police misconduct.

          "There is an additional importance to updating P.C. 141;  
            preservation of videos taken by the public of police  
            interactions is integral for accountability and oversight.   
            Throughout the state, there have been several instances of  
            police misconduct documented by civilians on their personal  
            mobile devices. In many instances, peace officers have  
            temporarily confiscated person's mobile devices as possible  
            evidence, only to return the mobile devices with material  
            digital images and/or videos altered, modified, or completely  
            deleted. For example, in May 2013, police in Bakersfield  
            temporarily confiscated the mobile devices of two witnesses  
            who recorded police beating a 33-year-old father of four. The  
            victim of the police beating subsequently died. The police  








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            returned the devices with the video of the incident deleted.   
            Increasingly, as the public captures questionable police  
            practices on video, it is critical that we send a message that  
            altering or deleting these videos will not be tolerated."

          4)Argument in Opposition:  None submitted.

          5)Related Legislation:  SB 411 (Lara) specifies that taking a  
            photograph or making a recording of an officer, while the  
            officer is in a public place or the person taking the  
            photograph or making the recording is in a place he or she has  
            the right to be, is not in and of itself a crime, nor does it  
            constitute reasonable suspicion to detain the person, or  
            probable cause to arrest the person.  SB 411 is pending  
            hearing in the Senate Public Safety Committee.

          6)Prior Legislation:  AB 1993 (Romero), Chapter 620, Statutes of  
            2000, made it a crime to intentionally alter physical matter  
            with the intent that the evidence be used to charge a person  
            with a crime.  

          REGISTERED SUPPORT / OPPOSITION:
          
          Support


          California Attorneys for Criminal Justice (Sponsor)
          American Civil Liberties Union of California
          American Friends Service Committee
          California Public Defenders Association
          California State Conference of the National Association for the  
          Advancement of Colored People
          California State Sheriffs' Association
          Homies Unidos
          Justice Now
          Lawyers Committee for Civil Rights of the San Francisco Bay Area
          Motivating Individual Leadership for Public Advancement
          Policy Link
          One private individual


          Opposition








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          None


          Analysis Prepared  
          by:              Sandy Uribe/PUB. S./(916) 319-3744