BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                     SB 411


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          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: 













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          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  











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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. (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).)














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          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  











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            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: 














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               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  











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               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.











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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. <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).  










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            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













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          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














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          Opposition


          


          None





          Analysis Prepared by:David Billingsley / PUB. S. / (916)  
          319-3744