By Tamara Bogosian and Jordan Ferguson.
As deputy U.S. marshals detained a group of people in Beatriz Paez’s neighborhood, the 34-year-old South Gate, Calif. resident began recording the incident. Video from another camera-wielding bystander rolls as a different scene unfolds — one where an officer grabs Paez’s phone and slams it to the ground.
Similar scenarios are playing out across the nation as amateur photographers from Staten Island to Los Angeles’ Skid Row have thrust police and public tensions into the national spotlight.
The ever-present, camera-equipped cellphone has made recording of law enforcement officials increasingly easy and thus progressively more common. Coupled with this uptick in police-related recordings is the question: What can individuals record when it pertains to law enforcement? That’s the question a recently adopted California law (SB 411) intends to answer.
Last month, legislation clarifying protections for citizens videotaping police without interfering with investigations was passed.
The new law is two-fold. On one end, the law reinforces the public’s constitutionally-protected right to record police in public spaces. On the other, it strengthens an officer’s ability to detain and/or arrest individuals whose recording deters or prevents an officer from performing duties.
“At a time when cell phone and video footage is helping steer important national civil rights conversations, passage of the Right to Record Act sets an example for the rest of the nation to follow,” the bill’s author, Sen. Ricardo Lara, said in a press release, adding that, with the signing, Gov. Jerry Brown ensured “transparency, accountability and justice for all Californians.”
Legislators in Oregon passed a similar measure in June, ensuring protection for people recording openly and in plain sight of a law enforcement officer. Previously, citizens were in violation of the state’s eavesdropping statute if they recorded without “specifically informing” all parties.
On the flip side of the issue, one Texas representative sought to make it a misdemeanor offense for private citizens to record police within 25 feet — a privilege the bill would only grant to members of radio or television organizations with Federal Communications Commissions’ issued licenses. Strong social media backlash lead Rep. Jason Villalba to drop his proposed bill.
The public’s right to record has been unwavering since before George Holliday stepped onto his balcony and filmed Los Angeles Police Department officers beating Rodney King 24 years ago.
The public recording of police conduct has risen ever since.
Then, and now, the First Amendment has protected citizens and journalists recording police in public and other places where they have the right to be. Courts and lawmakers, too, have affirmed that right to record – as long as the action doesn’t get in the way of police activities.
Citizens and officers, however, walk a fine line between protected First Amendment rights and interfering in law enforcement activities in ways that may endanger lives.
Especially in instances where there is no yellow caution tape, that line can be blurred and situations can quickly escalate. The South Gate encounter demonstrates just that.
In the video, which ended up on YouTube and garnered more than a million views, Paez is seen standing on a neighborhood sidewalk aiming a cellphone at two men wearing tactical vests. Paez can be heard saying, “You are making me feel unsafe, and I have the right to be here.” About 30 seconds into the recording, a third marshal walks across the lawn toward Paez. She appears to aim her phone at him as she steps away from the men. The approaching deputy then rushes toward Paez and grabs the device from her hand before slamming it to the ground.
The recording sparked a federal investigation.
This year, following a string of officer-related incidents — many involving use of force — a wave of police accountability proposals were introduced by California legislators, among them the recently adopted “right to record” law.
While two other controversial bills regarding body-worn cameras and reporting use-of-force incidents failed to move forward, Brown also approved a measure prohibiting grand juries to weigh in on cases involving excessive or deadly force by an officer. The bill, SB 227, approved by Brown, was in response to the deaths of Michael Brown and Eric Garner where grand juries in both Ferguson, Mo. and New York City declined to indict officers. Officials in Los Angeles and Santa Clara counties had already opted out of the grand jury route in such instances and now the law covers the entire state. It was signed on the same day as SB 411, the “right to record” bill.
The new “right to record” law is aimed to address issues arising across the board where the filming of law enforcement is concerned. Ultimately, the law doesn’t provide a dramatic shift, or any real change, in existing policy. What it does is act as a legislative reminder for citizens and public agencies to be more aware of individual rights and cases in which officers have the power to intervene.
The bill was backed by the American Civil Liberties Union, which said in a statement that SB 411 “helps to safeguard our collective freedoms and takes an important step toward ensuring that individuals are not punished for the mere exercise of their constitutional rights.”
Earlier this year, the ACLU launched an app, Mobile Justice CA, exclusively in California that allows users to record and automatically preserve their recordings. The app, which sends videos directly to the ACLU, is meant to protect recordings of police encounters and the documentation of alleged civil rights violations in case the user’s phone is seized or destroyed.
Videos, whether captured on a bystander’s handheld camera, surveillance footage or an officer-worn body camera, provide a critical source of evidence when public agencies are conducting criminal investigations and incident reviews.
With California’s reinforcement of the public’s constitutional right to record and an officer’s power to detain more clearly defined, citizens may see an increased level of engagement, and a decreased number of camera misunderstandings, with officers in the field.
Tamara Bogosian is of counsel in Best Best & Krieger’s Municipal Law practice group. With more than 15 years of experience working in city and district attorney’s offices, Bogosian continues to represent public agencies in proceedings involving Public Records Act, civil rights, police liability and law enforcement related constitutional claims. She can be reached at Tamara.Bogosian@bbklaw.com.
Jordan Ferguson is an associate in Best Best & Krieger’s Los Angeles office. A member of the Municipal Law and Special Districts practice groups, Ferguson is well-versed in the issues of emerging technologies and the sharing economy, conflicts of interest, free speech regulations, privacy rights, the Brown Act, public safety regulations and elections law matters. He can be reached at Jordan.Ferguson@bbklaw.com.