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 Page 2 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: AB 256 Page 3 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 AB 256 Page 4 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 AB 256 Page 5 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 AB 256 Page 6 None Analysis Prepared by: Sandy Uribe/PUB. S./(916) 319-3744