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