BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 411 Hearing Date: April 7, 2015
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|Author: |Lara |
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|Version: |February 25, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Crimes: Photographing or Recording Officers
HISTORY
Source: California Public Defenders and Conference of
California Bar Associations
Prior Legislation:No
Support: American Civil Liberties Union; Asian Law Alliance;
Bill of Rights Defense Committee; Courage Campaign;
Legal Services for Prisoners with Children
Opposition:None Known
PURPOSE
The purpose of this legislation it to expressly provide that it
is not a crime to take a photograph or record a law enforcement
officer while the officer is performing any official duty in a
public place or in a place where the person taking the
photograph or making the recording has a right to be.
Current law states that every person who attempts, by means of
any threat or violence, to deter or prevent an executive officer
from performing any duty imposed on the officer by law, or who
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knowingly resists, by the use of force or violence, such
officer, in the performance of his duty, is punishable by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment
pursuant to subdivision (h) of Section 1170, or in a county jail
not exceeding one year, or by both such fine and imprisonment.
(Penal Code § 69.)
Under existing law every person who willfully resists, delays,
or obstructs any public officer, peace officer, or an emergency
medical technician, as specified, in the discharge or attempt to
discharge any duty of his or her office or employment, when no
other punishment is prescribed, shall be punished by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in a
county jail not to exceed one year, or by both that fine and
imprisonment. And, except as otherwise provided, every person
who knowingly and maliciously interrupts, disrupts, impedes, or
otherwise interferes with the transmission of a communication
over a public safety radio frequency shall be punished by a fine
not exceeding one thousand dollars ($1,000), imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment. (Penal Code § 148(a).) Every person who, during
the commission of one of these offenses:
Removes or takes any weapon, other than a firearm, from
the person of, or immediate presence of, a public officer
or peace officer shall be punished by imprisonment in a
county jail not to exceed one year or pursuant to
subdivision (h) of Section 1170. (Penal Code § 148(b).)
Removes or takes a firearm from the person of, or
immediate presence of, a public officer or peace officer
shall be punished by imprisonment pursuant to subdivision
(h) of Section 1170. (Penal Code §148(c).)
This bill would provide that taking a photograph or making an
audio or video recording of an executive officer, while the
officer is in a public place or in a place where the person
taking the photograph or making the recording has the right to
be, does not, in and of itself, constitute interference with a
public duty, as specified.
This bill would provide that taking a photograph or making an
audio or video recording of a public officer or peace officer,
while the officer is in a public place or in a place where the
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person taking the photograph or making the recording has the
right to be, does not, in and of itself, constitute obstruction
of an officer, as specified, nor does it constitute reasonable
suspicion to detain the person or probable cause to arrest the
person.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
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31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the Author:
Over the past decade, technological advances have made
it so that nearly every citizen has a hand-held
recording device. Current statues do not reflect the
advancements of recording technology and existing law
is not clear on what constitutes an obstruction of an
officer when using these devices to record officers
exercising their duties in public. This lack of
clarity has increased conflict between police officers
and members of the public.
In several California cases and beyond, members of the
public have been arrested while recording or
photographing police activity in public places.
Videos and reports have surfaced online of civilians
being arrested for recording officers in the cities of
Los Angeles, Torrance, and San Diego, as well as the
County of Orange. This conflict extends past police
officers and civilians to professional photographers
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and media personnel. In Berkeley, CA a journalist was
arrested after recording law enforcement officers in a
public place.
As evidenced by these reports, the law's obscurity has
led to confusion about protected citizen oversight
activities, such as filming and photographing. While
many police officers understand the right of people to
exercise their first amendment right, current statutes
provide little guidance on whether recording
constitutes delaying or obstructing an officer. The
vagueness of the law necessitates a clarification to
give all citizens and law enforcement officers a clear
understanding that individuals have a right to record
police officers in public during the discharge of
their duties.
Additionally, the law should be clarified to include
that reasonable suspicion cannot be used against a
First Amendment right. When often people are found to
be recording an officer and they are detained or
arrested, reasonable suspicion is used as a tool for
the arrest.
Ultimately, clarifying the law can benefit both police
and civilians. A recent example of a civilian
recording helping the police occurred on February 28,
2015 when the LAPD turned to deadly force after
failing to subdue a man. Bystander video, as well as
video from a security camera, shows that the man acted
violently toward the police and attempted to grab the
officer's gun. Recordings of law enforcement activity
can create not only clear evidentiary accounts that
benefit civilians, but innocent police officers as
well.
As Los Angeles County Sherriff's Chief Bobby Denham of
the Central Patrol Division said in the LA Times in
response to the introduction of body cameras, "We're
in an age now where this kind of technology is
expected. It gives us an opportunity to do better." As
we move further into the smart-phone age and hand-held
recording technologies continue to become more
accessible to everyday citizens, SB 411 will help
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members of the public understand how they can use
their First Amendment rights in relation to public
police activities. It helps ensure the protections of
rights by promoting transparency and community trust.
In the end, it is the intent of SB 411 to limit future
conflicts between civilians and law enforcement. . .
Our Constitution guarantees us all the fundamental
right to freedom of speech. Recent events throughout
the country and here in California have raised
questions about when an individual can - and can't -
record. SB 411 will help erase ambiguity, enhance
transparency and ensure that freedom of speech is
protected for both civilians and police officers.
2. Effect of Legislation
This legislation expressly provides that it is not a crime to
take a photograph or record a law enforcement officer while the
officer is performing any official duty in a public place or in
a place where the person taking the photograph or making the
recording has a right to be.
This is consistent with 9th Circuit case law, which expressly
provides that the public be permitted to film matters of public
interest:
"In this Circuit, an individual has a right 'to be
free from police action motivated by retaliatory
animus." Ford v. City of Yakima, 706 F.3d 1188, 1193
(9th Cir. 2013) (quoting Skoog v. Cnty. of Clackamas,
469 F.3d 1221, 1231-32 (9th Cir. 2006)). In general,
the public enjoys a "First Amendment right to film
matters of public interest." Fordyce v. City of
Seattle, 55 F.3d 436, 439 (9th Cir. 1995); see also
Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)
("the First Amendment's aegis . . . encompasses a
range of conduct related to the gathering and
dissemination of information . . . The filming of
government officials engaged in their duties in a
public place, including police officers performing
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their responsibilities, fits comfortably within these
principles.").
"To demonstrate retaliation in violation of the First
Amendment, [a plaintiff] must [show] that [Defendants]
took action that would chill or silence a person of
ordinary firmness from future First Amendment
activities." Skoog, 469 F.3d at 1231-32. The Ninth
Circuit has explicitly "recognized that a retaliatory
police action such as an arrest or search and seizure
would chill a person of ordinary firmness from
engaging in future First Amendment activity." Ford,
706 F.3d at 1193.
(American News and Information Services, Inc. v. William D.
Gore, 2014 U.S. Dist. LEXIS 132591 (September 17, 2014).)
SHOULD CALIFORNIA LAW EXPLICITLY PERMIT THE PHOTOGRAPHING OR
RECORDING OF LAW ENFORCEMENT IN PUBLIC WHEN THE OFFICER IS
DISCHARGING AN OFFICIAL DUTY?
3. Argument in Support
According to the American Civil Liberties Union of
California:
There is a clear constitutional right to photograph
and record the police in the performance of their
duties. [Footnote omitted.] This right serves as an
important check and balance, and provides a means for
members of the public to safely and accurately record
matters of public importance. Indeed, as one federal
court found,
"The filming of government officials engaged in their
duties in a public place, including police officers
performing their responsibilities, fits comfortably
within these principles [of protected First Amendment
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activity]. Gathering information about government
officials in a form that can readily be disseminated
to others serves a cardinal First Amendment interest
in protecting and promoting the free discussion of
governmental affairs?[f]reedom of expression has
particular significance with respect to government
because [i]t is here that the state has a special
incentive to repress opposition and often wields a
more effective power of suppression?This is
particularly true of law enforcement officials, who
are granted substantial discretion that may be misused
to deprive individuals of their liberties?Ensuring the
public's right to gather information about their
officials not only aids in the uncovering of abuses,
but also may have a salutary effect on the functioning
of government more generally."
(Glik v. Cunniffe (1st Cir. 2011) 655 F.3d 78, 82-83,
internal citations and quotations omitted.) Likewise,
in a 2012 letter to the Baltimore Police Department,
the U.S. Department of Justice urged,
"Policies should affirmatively set forth the contours
of individuals' First Amendment right to observe and
record police officers engaged in the public discharge
of their duties. Recording governmental officers
engaged in public duties is a form of speech through
which private individuals may gather and disseminate
information of public concern, including the conduct
of law enforcement officers."
(Jonathan M. Smith, U.S. Dept. of Justice Letter to
Baltimore City Police Dept. (May 14, 2012)
http://www.justice.gov/crt/about/spl/documents/Sharp_lt
r_5-14-12.pdf.) Therefore, protecting our right to
photograph and record law enforcement in the
performance of their duties both strengthens our
communities and ensures the proper functioning of
government.
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Despite the well-established right to take photographs
and make audio and video recordings of police
officers, and despite the clear language of Penal Code
sections 69 and 148 - which specify that only when a
person uses threats or violence to deter or prevent an
officer from performing the officer's duties, or when
a person resists, delays, or obstructs an officer in
the performance of the officer's duties should that
person be punished - members of the public have
nonetheless been arrested and detained for lawfully
photographing and recording the police. Law
enforcement officers violate the Constitution's core
protections when they arrest and detain people for
legally pursuing constitutionally protected activity.
Such violations threaten our liberties and make our
communities less safe.
By recognizing the existing constitutional right to
photograph and record the police, SB 411 helps to
safeguard our collective freedoms and takes an
important step towards ensuring that individuals are
not punished for the mere exercise of their
constitutional rights.
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