BILL ANALYSIS Ó
AB 256
Page 1
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:
AB 256
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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