BILL ANALYSIS �
AB 1356
Page 1
ASSEMBLY THIRD READING
AB 1356 (Bloom)
As Amended January 17, 2014
Majority vote
JUDICIARY 8-1
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|Ayes:|Wieckowski, Alejo, Chau, | | |
| |Dickinson, Garcia, | | |
| |Maienschein, Muratsuchi, | | |
| |Stone | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner | | |
| | | | |
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SUMMARY : Amends the existing statute that creates the civil
tort of "stalking" to include within the definition of
"stalking" a pattern of conduct that is intended to place
another person under "surveillance," as defined. Specifically,
this bill :
1)Expands liability for the tort of stalking by adding "place
under surveillance" to the list of intentional patterns of
conduct that constitute "stalking." Provides that such
surveillance would only create liability if the plaintiff
could also prove that: a) the conduct placed the plaintiff in
reasonable fear for his or her safety, or the safety of an
immediate family member, or, alternatively, caused the
plaintiff substantial emotional distress; b) as part of the
conduct the defendant made a credible threat, as defined, to
the plaintiff or a member of his or her immediate family; and
c) the plaintiff clearly demanded that the defendant cease the
conduct and the defendant persisted in the conduct.
2)Defines "place under surveillance" to mean remaining present
outside of the plaintiff's school, place of employment,
vehicle, residence, other than the residence of the defendant,
or other place occupied by the plaintiff. Specifies that
"place under surveillance" does not include any lawful
activity of licensed private or public investigators or law
enforcement personnel who, within the course of their
employment, are attempting to obtain evidence of suspected
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illegal activity or other misconduct, as described. Specifies
also that "place under surveillance" does not include any
newsgathering conduct temporally connected to a newsworthy
event.
3)Defines "follows" to mean to move in relative proximity to a
person as that person moves from place to place or to remain
in relative proximity to a person who is stationary or whose
movements are confined to a small area but does not include
following the plaintiff within the residence of the defendant.
Specifies that "place under surveillance" does not include
any lawful activity of licensed private or public
investigators or law enforcement personnel who, within the
course of their employment, are attempting to obtain evidence
of suspected illegal activity or other misconduct, as
described. Specifies also that "place under surveillance"
does not include any newsgathering conduct temporally
connected to a newsworthy event.
EXISTING LAW :
1)Makes a person liable for the tort of stalking when the
plaintiff proves all of the following elements: a) the
defendant engaged in a pattern of conduct with the intent to
follow, alarm, or harass the plaintiff; b) as a result of that
conduct, the plaintiff reasonably feared for his or her
safety, or the safety of an immediate family member; c) the
defendant made a credible threat with the intent of placing
the plaintiff in such fear, OR the defendant's conduct was in
violation of a restraining order prohibiting the conduct.
Provides further that the plaintiff must have made a clear
demand that the defendant cease the conduct and the defendant
nonetheless persisted.
2)Defines "credible threat" to mean a verbal or written threat,
including an electronic communication, or a threat implied by
a pattern of conduct, or a combination thereof, made with the
intent and apparent ability to carry out the threat so as to
cause the person who is the target of the threat to reasonably
fear for his or her safety or the safety of his or her
immediate family.
3)Defines "pattern of conduct" to mean conduct composed of a
series of acts over a period of time, however, short,
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evidencing a continuity of purpose. Specifies that
constitutionally protected activity is not included within the
meaning of "pattern of conduct."
4)Permits a person who has suffered harassment to obtain a
temporary restraining order or injunction, as specified,
against the person who engaged in the harassment. Defines the
course of conduct that constitutes harassment to include
following or stalking an individual.
FISCAL EFFECT : None
COMMENTS : This bill seeks to protect celebrities, and others
nearby, from the sometimes aggressive behavior of the paparazzi.
Several similar bills have come before the Assembly Judiciary
Committee in recent years, most of which have tried in one way
or another to draw a line between the inappropriate behavior of
the most aggressive paparazzi, on the one hand, and reasonable
and legitimate newsgathering efforts, on the other. Past
efforts to address this problem have typically attempted to
expand existing statutes that create civil liability - for
invasion of privacy, stalking, harassment, or some other
actionable conduct - to expressly include efforts to capture a
person's image or voice in an offensive, harassing, threatening,
or dangerous manner. This bill takes a somewhat different
approach, as it does not expressly mention attempts to capture a
visual image or sound recording. Instead, this bill reflects a
modest and seemingly measured attempt to modify the existing
civil "stalking" statute, so as to extend liability to forms of
"surveillance" sometimes used by the paparazzi.
Existing law defines "stalking" as a pattern of conduct that is
intended to "follow, alarm, or harass" another person. This
bill would add to that list forms of conduct that are intended
to place another person "under surveillance," which in turn is
defined as remaining outside of another person's home, school,
or workplace with no legitimate purpose. In order to prevail
under the existing anti-stalking statute, a plaintiff must prove
all the following elements: 1) the defendant engaged in a
pattern of conduct that constituted stalking; 2) that as a
result of that conduct the plaintiff reasonably feared for his
or her safety, or for the safety of an immediate family member;
and 3) the defendant made a credible threat with the intent to
place the plaintiff (or family member) in such fear. In
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addition, existing law requires that the plaintiff must have, on
at least one occasion, clearly demanded that the defendant cease
the conduct and the defendant nevertheless persisted.
While this bill expands what constitutes "stalking" to include
placing a person under surveillance, it nonetheless retains
essentially the same elements necessary to establish liability.
The most significant difference in the elements is that, whereas
existing law requires, as one element, that the pattern of
conduct placed the plaintiff in fear of his or her safety (or
the safety of an immediate family member), this bill would,
alternatively, meet this one element if the plaintiff suffered
"substantial emotional distress" as a result of the pattern of
conduct. However, this expansion is not as great as it may
seem. While a plaintiff under this bill could substitute
"substantial emotional distress" for "fear for his or her
safety," the plaintiff would still need to meet all of the other
required elements of the tort to establish liability. It would
not be enough that the surveillance caused substantial emotional
distress. It would also require, for example, that the
defendant made a "credible threat" that placed the plaintiff in
fear for his or her safety AND the plaintiff must still have, on
at least one occasion, "clearly and definitively," but
unsuccessfully, demanded that the defendant cease the activity.
Because there has been some confusion on this point in the past,
it should be stressed that the bill does not make placing a
person under surveillance, and nothing more, an independent
basis for civil liability. The surveillance must still meet all
of the other elements of stalking, as set forth in the statute.
Adding "surveillance" simply makes it clear that stalking does
not literally require "following" a person, if that term, as
commonly understood, means staying in close proximity to another
person as that person moves from place to place. According to
many reports, the paparazzi often wait outside of a home,
school, or workplace waiting for celebrities to come and go.
This stationary waiting might not involve "following" the
plaintiff, but it might nevertheless be a source of substantial
emotional distress if hordes of paparazzi are constantly camped
outside of the plaintiff's home.
According the Paparazzi Reform Initiative (PRI), the sponsor,
this bill will "provide much needed protections for those who
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are placed in serious emotional distress by unauthorized and
overt surveillance."
Newsgathering associations oppose this bill because, they
contend, it is unconstitutional and will increase liability for
legitimate newsgathering activity while doing little to curtail
the most irresponsible of the paparazzi.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0002959