BILL ANALYSIS Ó SB 411 Page A Date of Hearing: June 30, 2015 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair SB 411 (Lara) - As Introduced February 25, 2015 SUMMARY: Provides that the fact that a person takes a photograph or makes an audio or video recording of a public officer, peace officer, or executive 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 violation of specified offenses for obstruction of an officer, nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person. Specifically, this bill: SB 411 Page B 1)States that the fact that a person takes a photograph or makes an audio or video recording of an executive 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, does not constitute, in and of itself, a violation of attempting by means of threats or violence, to deter or prevent an executive officer from performing their duty, or resisting by the use of force or violence the officer, in performance of his or her duty. 2)Provides that the fact that a person takes a photograph or makes an audio or video recording of a public officer or peace 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 violation of willfully resisting, delaying, or obstructing a public officer, or peace officer, nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person. 3)States that the fact that a person takes a photograph or makes an audio or video recording of a public officer or peace 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, does not constitute reasonable suspicion to detain the person or probable cause to arrest the person. EXISTING LAW: 1)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 SB 411 Page C 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. (Pen. Code, § 69.) 2)Provides that 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. 3)States that 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. (Pen. Code, § 148, subd. (a).) 4)Provides that any person who removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer, while willfully resisting, delaying obstructing the officer in the discharge or attempt to discharge any official duty, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170. (Pen. Code, § 148, subd. (b).) SB 411 Page D 5)Provides that any person who removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer, while willfully resisting, delaying obstructing the officer in the discharge or attempt to discharge any official duty, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170. (Pen. Code, §148, subd. (c).) FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: According to the author, "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)Need for Clarification to Ensure Consistency in Encounters Between Law Enforcement and Citizens: With the prevalence of cell phones and other devices that can record video or take pictures, it is common practice for citizens to record interactions between law enforcement and the public. Cell phone video recordings have been used to expose misconduct on the part of police officers as well as exonerate police officers from wrongful accusations. However, the dynamic of cell phone use by citizens to record police conduct has led to SB 411 Page E situations in which law enforcement have stopped, sometimes forcefully, the use of a recording device by a citizen. In April 2015, a woman standing on the sidewalk used her cell phone to record video of two men standing a short distance away, wearing black shirts with tactical vests reading "Police" across the back. The men noticed her recording moments earlier and began to back up toward her to block her view. About 27 seconds into the video, a third man, a deputy U.S. marshal wearing a tactical vest and carrying a rifle, walks across a front lawn toward the sidewalk where the woman is standing. The marshal wrestled the device out of her hand and smashed it on the ground. The phone's screen was shattered and the device stopped working. The woman said she began recording when she saw the law enforcement presence, their military-style weapons and a line of people being detained. http://www.latimes.com/local/lanow/la-me-ln-feds-probe-video-ph one-in-south-gate-20150421-story.html Providing clear guidelines to law enforcement and the public can serve to ensure that interactions involving the use of a cell phone recording will be conducted in a consistent and lawful manner. 3)Federal Courts have Recognized the First Amendment Right to Record a Police Officer Engaged in Their Duties in a Public Place: 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: SB 411 Page F In this Circuit, an individual has a right 'to be free from police action motivated by retaliatory animus." Ford v. City of Yakima (9th Cir. 2013) 706 F.3d 1188, 1193 (quoting Skoog v. Cnty. of Clackamas (9th Cir. 2006) 469 F.3d 1221, 1231-32.) In general, the public enjoys a "First Amendment right to film matters of public interest." Fordyce v. City of Seattle (9th Cir. 1995) 55 F.3d 436, 439; see also Glik v. Cunniffe (1st Cir. 2011) 655 F.3d 78, 82. ("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 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 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, at 1193. Quoted from American News and Information Services, Inc. v. William D. Gore, (S.D.Ca. September 17, 2014, CA12-CV-2186) 2014 U.S. Dist. LEXIS 132591.) 4)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. 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 SB 411 Page G performing their responsibilities, fits comfortably within these principles [of protected First Amendment 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_ltr_5-14-1 2.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. SB 411 Page H "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. <1> 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." 5)Prior Legislation: AB 1492 (Lowenthal), of the 2009-2010 Legislative Session, would have made it illegal to fail to --------------------------- <1> The use of police authority against individuals to deter their protected speech - which includes photography - is unconstitutional. (See Duran v. City of Douglas, 904 F.2d 1372, 1375-78 (9th Cir. 1990) (holding that a police officer's traffic stop and subsequent arrest of an individual who directed obscene gestures and words toward that officer was unlawful because it was well-established that police officers may not exercise their authority for personal motives, especially in response to an individual's criticism or insults); see also Beck v. City of Upland, 527 F.3d 853, 871 (9th Cir. 2008) (holding that Duran clearly established that police officers could not use their power to retaliate against an individual for his free speech). SB 411 Page I comply with the officer's direction to stop using a wireless telephone or other communication device, when stopped for a traffic violation. Would not have prohibited a person from using a wireless telephone or other communication device to record, tape, or otherwise film anything that occurs during a traffic stop. AB 1492 was held in the Assembly Public Safety Committee. REGISTERED SUPPORT / OPPOSITION: Support California Public Defenders Association (Sponsor) California Attorneys for Criminal Justice (Co-Sponsor) Conference of California Bar Associations (Co-Sponsor) Alameda County Board of Supervisors Alliance for Boys and Men of Color American Civil Liberties Union of California Asian Law Alliance Bill of Rights Defense Committee California Immigrant Policy Center SB 411 Page J California Newspaper Publishers Association Californians United for a Responsible Budget City of Oakland Consumer Electronics Association Courage Campaign Drug Policy Alliance Ella Baker Center for Human Rights Friends Committee on Legislation of California Legal Services for Prisoners with Children Los Angeles Black Worker Center NAACP - California State Conference PolicyLink Progressive Christians Uniting 19 private individuals SB 411 Page K Opposition None Analysis Prepared by:David Billingsley / PUB. S. / (916) 319-3744