Learn The Secrets Of Legally Filming Police While Avoiding Injuries Or Arrest
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Generally, In California, Public Recording of Civil Servants is Legal If No Reasonable Expectation of Privacy Exists.
Introduction.
My Intriguing Story - Why Filming Police Matters ("FPM")
Scroll Down To Take the Polls On Filming Police!
Yes, the short answer is that you can film the police in the regular course of their duties, but you mustn't interfere, obstruct or delay an officer. And that, my friends, presents a substantial ambiguous problem for someone trying to exercise their First Amendment rights. One misstep or confrontation with an overly aggressive officer could easily land you in jail. So let's explore the ins and outs of the sometimes dull, sometimes exciting topic of filming cops.
First of all, I am attorney Michael Ehline. Below I am going to talk about filming the police and why filming the police matters. ("FPM") Also addressed are the benefits, pitfalls, and legalities of recording police interactions and safeguarding free speech. At the outset, I concede that the right to free speech is not unlimited. But before that, I will first explain why I am an expert on the subject and my personal experiences in dealing with police, defending, and suing under civil rights law. After, we will go over a few scenarios, and I will provide some tips in dealing with angry cops not wanting to be filmed. When I worked for Bally's Total Fitness in West Covina back around 1996, I was loading my Jeep stopped at a red curb with my emergency blinkers on.
Since I am a disabled military veteran, I am a bit hobbled, so I stopped to quickly load the Jeep, which is perfectly legal in California. As I came back out of the gym, wearing my Bally's Total Fitness uniform, carrying sales materials, I noticed a man in a uniform writing my vehicle a ticket. I loaded my materials into the Jeep to prepare the Mall Show and approached the man writing me a ticket.
Poll 1 results. Do Power Hungry Police Regularly Find Pretexts To Arrest Citizens For Filming Police? Click Here To Take the Poll.
Poll 2 results. Should Police Cruisers and Beat Cops Be Forced To Have An Aerial Drone Film Every Single Public Interaction? Click Here To Take Poll.
I asked him what he was doing? He said he was writing me a "ticket for being illegally parked at a red curb." I explained, "I am a paralegal, and I also work here. The Vehicle Code is self-explanatory that I have the right to stop at a red curb to load and unload my baggage. I also am disabled, which means even without a handicapped placard, I can stop here for 3 minutes or less." "I am grabbing my baggage for the private shopping mall show at the Galleria." The man rolled his eyes and ignored me.
- Good Luck Getting Officers to Identify Themselves?
I asked him to show me a copy of a photo ID, and he pointed to his badge. At this point, I said: "Don't you have anything better to do than write parking tickets, like busting criminals? Can't you see I work here? Is interfering with commerce more important than protecting it?" After waiting for him to finish the ticket, he placed it under my windshield wiper.
So I said: "You have all the vehicle information, and I am moving it back into the parking space so I can go inside and change into a suit for a mall show we are doing." As I got into my car that was already running, I strapped on my seatbelt.
Next, the uniformed man approached me. He said, "let me see your ID." I asked for his ID and said I did not believe he was a law enforcement officer because he was writing a ticket that was not valid under California Law. Anyways, with a camera with audio, I guarantee you that officer would have been sacked on the spot by the mayor, as will be discussed.
Getting Beat Up By An Angry West Covina Cop Over A Parking Ticket? Really?
Believe it or not, it happens more than people want to believe. Next, I felt the impact of several blows on my head. And before I knew it, I was being pulled from my truck through the window. Since my seatbelt was on, I was trapped. So as he struck my face, I unlocked my seatbelt so he could get me out easier. While in front of my boss, gym members, and fellow employees, the man slammed me face first in the passenger window of my truck, placed me in an armlock, and handcuffed me.
Officer Milleson continued striking me in the back of the head as I shouted, "I comply!" multiple times. Ultimately, my fellow employees ran outside and shouted at the man. "Why are you hitting him? He works here? We saw everything. You are hitting him for no reason. He is not resisting." When Officer Mileson heard that, he immediately stopped and looked caught. Like he finally realized that: "this guy works here, and didn't do anything wrong except exercise his free speech."
I was humiliated and falsely arrested on a charge of Penal Code Section 148. You'll note further down in video number two that the West Covina Police are it again, claiming smartphones can be weapons, so if you don't put down your recording device, be expected to be beaten, handcuffed, and charged with a 148. Thanks, West Covina PD.
Ultimately, I got the charges dropped against me, thanks to friends who showed up at Bally's during my booking. They gathered recorded statements from each witness, made affidavits, and got them signed by the time I was out of jail! After being forced to spend thousands on defense lawyers, it was great seeing my judge scold the prosecutor.
Ultimately, I sued the West Covina PD and Officer Milleson, a total scumbag cop! I utilized Title 42 Section 1983 of the Civil Rights Act to obtain justice. And those folks were the events that helped inspire me to become a lawyer. And to think, earning my living, loading my vehicle for a mall display down the street. Milleson belongs in prison as far as I am concerned.
- Just Try Arguing With Police And See What Happens.
I laugh when I hear stories about "white privilege" because it didn't help me at all. It made things worse. Here I was, the "smart guy" in a Bally's uniform, reciting the Penal code and Vehicle Code to these cops. I explained to the sergeant that "I am a disabled US Marine, and I took the same oath you did. I want to make a citizen's arrest against that man. He just assaulted and battered me with no corpus delicti, a crime under Penal Code Section 240. Furthermore, neither of you appear to be law enforcement, as you are trying to justify writing a parking ticket illegally and using that illegal ticket as a pretext to arrest me falsely."
I could hear them saying we "have to arrest him and hope he fucks up on the ride back to the station." The sergeant snidely told me, "I was a Marine too, so what?" I said, "oh yeah, what unit were you with?" He was lying and shrugged his shoulders. Later at his deposition, the sergeant admitted he never served. The guy was a lying sack of shit, "stolen valor." They placed me in a police cruiser vehicle with Milleson at the wheel, the guy who just attacked me, and he drove me slowly back to the station. As we arrived, I heard the jailers saying, "this is the Bally's dude Milleson beat up at the gym. He fucked up." And they looked scared.
My Personal Experience With LEO Is That We Must ALWAYS Film The Police.
I knew right then and there that we need to watch the police and spotlight everything they do. And this is the inspiration for the below article. All I can say is that if people had been filming my "contact" or had smartphones back then, that cop would have never had the guts to attack me. In my opinion, systemic statism and not racism is what drives police abuse. As politicians like mayors point their fingers at the police, they hired and cried racism. All they are doing is deflecting the real problem. The police are doing the will of the state. Don't blame the law for the systemic statism of tongue-in-cheek totalitarianism.
Fewer Laws Mean Less Police Contacts?
True, filming police helps keep them and the public honest. But the laws passed by the nanny state are the reason for all these contacts and associated personal injury or death claims. So before we begin our discussion on what is legal or not, I ask you to consider that a right is likely being infringed every time some highly paid politician passes a new law. Unless it directly helps commerce and loosens the shackles of government from the commoner's pursuit of happiness, it is likely "unlawful."
State-controlled schools no longer teach the beauty of our Constitution, which most state constitutions closely follow. In American justice, our Republic's design was limited government, so laws not restricting government and instead restrict people cause suspicion and distrust by our citizens. If I don't interfere with your ingress or egress or create direct, objective threats, no law should exist regulating me. Sounds revolutionary, right?
Not really. It's just that we see our current government take on the appearance of a King George, but with the new Lords being Silicon Valley and anyone else who can fund political campaigns. Like the IRS, municipal police are a tool of the state. Their job is to protect the bureaucracy and tax-funded pensions, benefits, vacation pay, wage increases, and fellow government employees. And they sure like to let you know it with their vast PACs and campaign funding efforts.
If racism were the problem, police abuse would not be such a massive problem in Democrat-run cities and states with black police officers and chiefs, right? So that got me thinking. Maybe police don't want to be filmed because it will show just how draconian the laws passed by the mayor and city council have become. And if these police officers get caught on film enforcing these silly regulations, it remains sort of an unspoken contract they must resign or get thrown to the wolves (press) as a scapegoat.
- Stomping On Cameras and Police?
When I worked for the Los Angeles City Attorney Criminal Prosecution Division back in 2000-2002, I noticed many police reports charged with a 148 mentioning "broken camera," or "smashed phone," etc., as part of the arrest property intake. As an aside, even if you win the false charge, attorney bills, an arrest record on your CLETS, and a "contact" with LEO are a pox on your public record. Good luck qualifying for a job with the police department or getting a CCW now. You are branded for life, even if you win your case!
After attending several criminal arraignments as an observer, it became clear that many of these smashed camera cases happened when a good Samaritan started filming a brutal arrest, and they had their phone stomped by cops to try and destroy the videotape. In other cases, the suspect would complain to the judge, "I was filming them beat this dude up, and the cops took my phone and arrested me. Where is my phone?" So it was clear to me that LAPD and even the Sheriff's deputies had a custom and practice of doing what Milleson had done. Piss off a public servant, get charged with a PC 148.
Although we usually only deal with severe injury cases, civil rights cases often become intertwined into a matter of terrible injuries, such as when the police beat the crap out of a person or shoot someone. Below, I will discuss the law and how many authorities evade it from losing their jobs. These are typical uniformed police tactics used to avoid internal affairs ("IA") investigations.
First, we will cover California's law as it exists right now and the history of private wiretapping laws used pretextually to stop people filming police. Next, we will cover filming private citizens versus public servants and the time, place, and recording manner. Last, we will discuss new tools police are using to discourage them from being filmed.
“Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” ― George Orwell
Q: Does California Have A Law About Recording Police?
Yes, it does. Besides the Constitution, California Penal Code Section 148 (g) provides special rules police must follow when you film them.
"(g) 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 a 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 subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person."
California maintains several laws dealing with the recording of public officials, including law enforcement. But this was not always so. But let's consider the police's extreme measures to stop filming them and why the new law does nothing to protect citizens from bad cops. As will be detailed below, cops and prosecutors even tried to go after regular people like you and me for filming them in the course of their duties.
They even used wiretapping laws! After Youtube came out and regular folks saw that police would attack people and destroy their cameras, the deep state had to find a scapegoat. So they blamed cops and amended Penal Code Section 148.
Accordingly, on August 11, 2015, Governor Jerry Brown signed Senate Bill 411 into law.
California amended Section 69 of the Penal Code to read:
"(a) Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her 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. (b) 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 subdivision (a).
Next, the legislature amended Section II. Penal Code Section 148 was amended to read:
"(a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, 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.
(2) Except as provided by subdivision (d) of Section 653t, 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.
(b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
(c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred:
(1) The officer’s holster strap was unfastened by the defendant.
(2) The firearm was partially removed from the officer’s holster by the defendant.
(3) The firearm safety was released by the defendant.
(4) An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm.
(5) An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it.
(6) The defendant’s fingerprint was found on the firearm or holster.
(7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.
(8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.
(e) A person shall not be convicted of a violation of subdivision (a) in addition to a conviction of a violation of subdivision (b), (c), or (d) when the resistance, delay, or obstruction, and the removal or taking of the weapon or firearm or attempt thereof, was committed against the same public officer, peace officer, or emergency medical technician. A person may be convicted of multiple violations of this section if more than one public officer, peace officer, or emergency medical technician are victims.
(f) This section shall not apply if the public officer, peace officer, or emergency medical technician is disarmed while engaged in a criminal act.
(g) 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, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person." (Source).
Noteworthy here is that the amendments above are very vague and ambiguous as to what a "public place" is or what "a place he or she has the right to be" actually is. I would venture to say this is a time when all of a sudden, the police officer's body cam suddenly stops working, and your smartphone gets smashed. Again, I don't blame the police. They were trained by who? The state, that's who. Do you think the new amendment saying it's ok to film police matters to law enforcement who want to get at you for insulting officers of the state? Do you think that these amendments will stop police from using Section 148 to imprison people who are within their rights falsely?
“War is peace. Freedom is slavery. Ignorance is strength.”
― George Orwell, 1984.
Take the Poll:
Do you think police make up false charges to justify stomping on cell phones of people recording them as a matter of custom and practice? Or is it just media hype? We report, you decide.
Let's look at some more examples:
A corrupt cop may potentially use illegal or unreasonable force to stop you from filming his/her brutality during a suspect's detention or arrest. Other times, the cameraman lucks out and faces no issues. Sometimes the cameraman goes live with a partial video or shots from only one police contact angle with a suspect. Any little thing the cop does wrong can result in a riot. So it's understandable that police and municipalities want to block that. All it can mean is more personal injury lawsuits against the city. And that can only mean the government is using the cop as a scapegoat.
The recent protests surrounding George Floyd's death underline several key questions Americans have about the state of law enforcement in this country. The vast majority of police officers do their job silently day in and day out. They perform to the best of their ability. They make our cities and streets safer. However, the event's footage led to George Floyd's death that led us to the moment we're in now.
And for the foreseeable future, filming of police in one way, shape, or form will thoroughly affect our nation and our politics for a long time. The very act of filming the law has become controversial in some ways. Depending on your point of view, a jury may think you were creating a public record or see your act of filming as defiance. And yet, other people may think you are supporting the police to show they followed protocol. No matter which direction you take on the issue, I will break down some of the legal issues surrounding filming the police, hopefully reducing this topic's surrounding stigma. After all, that's what I'm here for as your legal eye.
Ehline Law wants to help consumers understand their rights and obligations while filming the police. First, let me start by saying that I love the police. And many of my Marine Corps brothers are now Deputy Sheriffs or CHP. I am pretty sure at least one Redondo Beach K-9 cop is also an inactive Marine. The bad things I am about to say about corrupt cops are about BAD Cops, not the good ones. In the Corps, we called them "sh+*birds."
Now that is out of the way, let's delve into the law. First, we will discuss the recording of non-police. That way, we can get a baseline and basic understanding of California privacy laws, and then we will go to the police. So, in California, if you record a private person and don't know, you are in trouble.
And this remains true even when filming in public or even semi-public places. So you could be out on the sidewalk, bike path, or eating establishment. What matters is if the individual you are taping does not have "an objectively reasonable expectation, no one is listening in or overhearing the conversation." If a court decides the person being filmed or photographed had a right to privacy, you are in trouble.
Courts determine this on a case-by-case basis, based upon the reasonableness of the conditions. So this means you cannot merely assume that you are not breaking the law when you make a recording of a person under such circumstances.
Failsafe When Recording Private Citizens – Get Consent First.
The Law:
The statute applies to "confidential communications" — i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to hidden video cameras to record conversations. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989).
In California, always try and get all parties' consent before recording them, especially if it is reasonable to assume their communications might be "private" or "confidential."
In addition to subjecting you to criminal prosecution, a violation could also trigger the California wiretapping law in a civil lawsuit for damages by the victim(s). (See also Cal. Penal Code § 637.2.) California's wiretapping law requires "two-party consent." It is a criminal act in California to record or eavesdrop on confidential communications, like private phone calls and private chats, without consent to the conversation. (See Cal. Penal Code § 632.) See also https://www.citmedialaw.org/legal-guide/california-recording-law.
Recording of Public Meetings:
In California, recording all public meetings is legal unless state or local bodies holding the meeting determine recording disrupts proceedings by noise, illumination, or obstruction of view. (Cal. Gov't Code § 11124.1(a); Cal Gov't Code §§ 54953.5(a).) *To learn more, see the "The Reporters Committee for Freedom of the Press's Open Government Guide: California." (Click Here.)
Ok, So Can I Record Cops?
Yes, you can. But the question's answer is not only yes or no.
- In California, it is well-settled law that it CAN be wonderful to videotape or snap photos of the police while in action. So with exceptions, discussed below, yes, filming the police is perfectly legal.
What Are The Rules For Filming Police In Public?
Good question. As we saw above, the California Penal Code just basically recites what we already know. Namely, there is a First Amendment. But it does nothing to help you as a concerned citizen or activist. So let's get into what you can and cannot do so you can stay safe while taking shots of the police inaction.
- You can only film the police while they are on duty, and you can't interfere with their official duties. And this is a gray area where a lousy cop may try to grab and smash your camera. (So look for corrupt cops trying to get in between the reporter, blocking their cameras, and then charging the photographer with resisting or obstructing them!). And if bullets start flying as you stand there filming the arrest of a violent felon, don't expect any sympathy from the police or the mayor if you want to sue for a penetrating bullet wound.
IMPORTANT: Even if you are within your rights to film the police and not interfering with an officer's official duties, a corrupt cop can still arrest, charge, and jail you. If the filing deputy DA or City Attorney believes the cop's version (e.g., that you interfered with the police and had no right to film), you can end up defending against bogus criminal charges. So it can become an expensive and risky proposition to film the police).
Otherwise, our laws will treat cops as private citizens, subject to the same protections as anyone else. Other jurisdictions agree. The First Court of Appeals stated that it is ok for the general public to videotape employees, e.g., police officers while working. This decision took place after cops were piecemeal arresting recording citizens while television news channels ran stories.
In California, Can I Record The Police With Video?
Take A Look At The YouTube Showing City Police Gone Mad Over Being Recorded!
At the outset, you must know I am not a cop. My training as a U.S. Marine is not a substitute for civil police training either. But I will say, if I were the attorney representing the people in these two videos, I would take the victims/suspects' side in both cases. Mind you, there may be more facts, so I am always willing to let the police involved or their department heads tell their side of the story.
So here we go. The internet, especially YouTube, has shown both the police's good and bad sides on video for the world to see. It's out there, especially when it comes to the federal TSA goons at the airports. Although having received multiple citizen complaints against individual rogue officers, many agencies just chose to act as though there was no problem until there was no denying it. Some police systemically attack people filming them, charge them with false crimes, and smash the phone or camera.
And this remained true in violation of their sacred oath(s) up until that time. Before that, prosecutors, judges, and juries pretty much believed whatever the arresting officer said. Modernly, the whole world is watching. Still, some police attacking people's videos do make it online, and others do not. For some, exercising their First Amendment Rights is more challenging when a cop stomps or confiscates the camera. Since the evidence is missing, this type of systemic police tactic used by departments all across California will ruin your life when all you did was film the police. It happens!
Above, you can see a man sitting on a curb after being detained by an angry police officer, outraged the citizen is chatting on the phone with his lawyer. They have surrounded the man; then they destroyed his property. If it were not for the other person filming the event, these officers would have escaped punishment. Nothing probably happened anyway, right? Below, in the following video, we see a frustrated officer using the power the state gave him to gain control. What do you think?
All you have to do is watch this woman who has a mother in the Sheriff's Department. She appears to be schooling this apparent rookie cop, and he loses it and commits what I would say is a battery and larceny against her, snatching her camera phone. The question is, how legal is it to film the police in public when the police themselves are trained to "take control?" You hear the rookie asserting:
"I am in control. I am in control." It reminds me of a Tony Robbins seminar. The sad man was trying to convince himself he, too, can be like L. Ron Hubbard and be a winner! " I am in charge!" Remarkably, there have been some individuals who have been prosecuted for filming the police. Police charged them using old wiretapping laws or Penal Code Section 148 (resisting, obstructing, delaying).
Can I Use A Hidden Camera To Record Police While On Duty?
Seems perfectly ok to me. As a general rule placing a camera in a public area is fine. Since people are already in a public space, they are afforded no reasonable expectation of privacy under the law. However, when someone leaves a populated place and heads into a public restroom, dressing room, locker rooms, or other similar private space, their “reasonable right to privacy” exists. Also, most people don't want to be recorded while naked without their express consent. And it would be a crime for them to expose themselves in public. So clearly, while these may be public facilities, they are not public spaces for purposes of deciphering privacy laws. A hidden camera at these local places is patently illegal.
Fact Check: Does Penal Code Section 647 Prohibit Filming Police With Hidden Cameras In Public Places?
NO! There are false rumors that secretly filming a police officer violates California Penal Code Section 647. A non-lawyer journalist over at SF Weekly apparently started spreading a false rumor that it was illegal to record police with a hidden camera under Penal Section 647.
Of course, it seemed like every personal injury and civil rights lawyer picked it up and started blogging that it is "illegal to record police with hidden cameras." That narrative is patently false, and it remains nowhere to be found in the California Penal Code. It would be illegal to be fair if the cop was naked or in a dressing room and secretly filmed. Another example of fake news spread by journalists that even remains accepted as valid by lawyers should know enough to open up the Penal Code and read the fine print.
Let's take a look at the statute and see what Penal Code Section 647 says.
"Except as provided in paragraph (5) of subdivision (b) and subdivision (k), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
(a) An individual who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
(b) (1) An individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with the intent to receive compensation, money, or anything of value from another person. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, the individual manifests an acceptance of an offer or solicitation by another person to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution.
(2) An individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is 18 years of age or older in exchange for the individual providing compensation, money, or anything of value to the other person. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, the individual manifests an acceptance of an offer or solicitation by another person who is 18 years of age or older to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution.
(3) An individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, the individual manifests an acceptance of an offer or solicitation by someone who is a minor to so engage, regardless of whether the offer or solicitation was made by a minor who also possessed the specific intent to engage in an act of prostitution.
(4) A manifestation of acceptance of an offer or solicitation to engage in an act of prostitution does not constitute a violation of this subdivision unless some act, in addition to the manifestation of acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.
(5) Notwithstanding paragraphs (1) to (3), inclusive, this subdivision does not apply to a child under 18 years of age who is alleged to have engaged in conduct to receive money or other consideration that would, if committed by an adult, violate this subdivision. A commercially exploited child under this paragraph may be adjudged a dependent child of the court pursuant to paragraph (2) of subdivision (b) of Section 300 of the Welfare and Institutions Code and may be taken into temporary custody pursuant to subdivision (a) of Section 305 of the Welfare and Institutions Code, if the conditions allowing temporary custody without warrant are met.
(c) Who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms.
(d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.
(e) Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.
(f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that they are unable to exercise care for their own safety or the safety of others, or by reason of being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.
(g) If a person has violated subdivision (f), a peace officer, if reasonably able to do so, shall place the person, or cause the person to be placed, in civil protective custody.
The person shall be taken to a facility, designated pursuant to Section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates. A peace officer may place a person in civil protective custody with that kind and degree of force authorized to effect an arrest for a misdemeanor without a warrant. A person who has been placed in civil protective custody shall not thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement.
This subdivision does not apply to the following persons:
(1) A person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug.
(2) A person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor in addition to subdivision (f).
(3) A person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control.
(h) Who loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. As used in this subdivision, “loiter” means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.
(i) Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant.
(j) (1) A person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, mobile phone, electronic device, or unmanned aircraft system, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside.
This subdivision does not apply to those areas of a private business used to count currency or other negotiable instruments.
(2) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. For the purposes of this paragraph, “identifiable” means capable of identification, or capable of being recognized, meaning that someone, including the victim, could identify or recognize the victim.
It does not require the victim’s identity to actually be established.
(3) (A) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person. For the purposes of this paragraph, “identifiable” means capable of identification, or capable of being recognized, meaning that someone, including the victim, could identify or recognize the victim.
It does not require the victim’s identity to actually be established.
(B) Neither of the following is a defense to the crime specified in this paragraph:
(i) The defendant was a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner or associate of the victim, or an agent of any of these.
(ii) The victim was not in a state of full or partial undress.
(4) (A) A person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
(B) A person intentionally distributes an image described in subparagraph
(A) when that person personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.
(C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.
(D) It shall not be a violation of this paragraph to distribute an image described in subparagraph
(A) if any of the following applies:
(i) The distribution is made in the course of reporting an unlawful activity.
(ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.
(iii) The distribution is made in the course of a lawful public proceeding.
(5) This subdivision does not preclude punishment under any section of law providing for greater punishment.
(k) (1) A second or subsequent violation of subdivision (j) is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.
(2) If the victim of a violation of subdivision (j) was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.
(l) (1) If a crime is committed in violation of subdivision (b) and the person who was solicited was a minor at the time of the offense, and if the defendant knew or should have known that the person who was solicited was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail for not less than two days and not more than one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment.
(2) The court may, in unusual cases, when the interests of justice are best served, reduce or eliminate the mandatory two days of imprisonment in a county jail required by this subdivision. If the court reduces or eliminates the mandatory two days’ imprisonment, the court shall specify the reason on the record."
There is no code section stating that videotaping a police officer with a concealed camera is a misdemeanor. And no, the law does not carry with it up to one year in the county jail and fines of up to $1000 if you record police with a hidden camera. It's dumb, it's not the, and it's wrong. And the same applies to an audio recording in a public place. Whoever tells you otherwise is not a real lawyer. Did the person being recorded have a reasonable expectation of privacy? Yes, or no? Simple.
When All Else Fails Penal Code Sec. 148?
California Penal Code Section 148 is the favored section bad cops use to charge people with crimes who did nothing wrong. Usually, it was the police who had just violated a citizen. So they scramble to make up a story and hope no one caught what they did on tape! Before the advent of smartphones, it was much easier for lousy police to violate a person's civil rights and use excessive force while doing it.
This remains a common practice by corrupt cops to accuse someone they just beat up with a crime. Usually, the Smartphone or camera is "accidentally" destroyed during the arrest. Many nefarious police officers do this to get leverage in a future civil case if they are sued. Plus, this gives the police union some firepower when the bad cops try not to get terminated for being, well, a bad cop.
What happens if an arrested criminal defendant pleads out to the false charge (no contest, not guilty, etc.) out of fear? For example, what if they lack money to pay a lawyer, is "strong-armed" by the public defender, etc.? If so, the officer can later argue they used reasonable force, or the defendant would not have copped a plea. And that is res judicata, etc., in any future civil rights lawsuit. This is the favored method municipal police departments historically have used, and it is very effective at restricting the sovereign's inalienable rights (you).
Seal Your Coffin With Outdated Wiretap Laws?
Now, these old wiretap laws were enacted in the past to prevent the recording of private conversations. District attorneys faced with prosecuting anyone arrested by police for filming have only been able to find wiretapping laws to nail the citizen or try and use obstruction charges above. But of course, this is just a pretext and punishment. It's unjust and Orwellian, right? Well, the Courts agree!
Enter Alvarez.
This attitude by overzealous prosecutors changed recently with the actions of the U.S. Supreme Court. This came when the court declined the pleas of the ACLU v. Alvarez. The court left in place a ruling by a U.S. Federal Appeals Court ruling. Here, the Appeals Court declared that Illinois wiretapping laws used for police filming violated individuals' First Amendment rights. Amen!
This ruling was a decision that makes sense and is right? But UCLA Law Professor Eugene Volokh said there will still be problems. Professor Volokh expressed in a recent television interview; those police officers are not even sure what the law is. And this can lead to your arrest when you disobey the officer ordering the filming to be stopped. He said the worst thing that can happen is being taken to the station, where you would be released a few hours later.
This subject is also one of significant controversy-- but one with a clear answer. To recap, yes-- you have the definite right to film the police! Yes, that includes a traffic stop. It also includes filming a distance. It includes filming during a raid during the application of a warrant. Yes, you can film the police even if they tell you not to film. Legall, you may do so even if it seems technically tricky for you.
Yes, it may also include cases in which you may or may not be charged with a crime. In case the last paragraph wasn't clear enough-- you should never doubt that you have the power to film the police in all interactions. Your time with the law is a public event. Interactions with public agencies-- which this would undoubtedly represent are all able to be recorded. This can happen in multiple ways, including both audio and video recording.
What Are Some Recent Cases?
Twelve states do restrict the right of individuals to record others without their consent. However, the First Amendment and recent court precedent show clearly that an individual can film the police in any reasonable situation. Take several recent cases into account regarding your rights. In one case, Simon Gilk received $170,000 in damages from Boston's City after being charged for videotaping police. Police didn't just arrest him, the city forced a bogus felony charge upon him.
This false crime was vacated unanimously by the First Circuit Court of Appeals. Among the tips and recent case precedent-- you should always record out in the open. Don't hide it-- let the law enforcement officers know and show them your phone or camera. Courts have been nearly universal in rejecting such a creative, anti-American application of the law used by many modern police agencies.
Do Police Have To Honor My Right Of Privacy From Being Filmed In Private?
Generally, suppose the police have a lawful presence in your location. In that case, you are probably not protected fully with your 4th Amendment and other unalienable, universal rights to be secure in your person and property. But if it turns out later, they violated your rights, and the police could not argue they had the right to film you privately. Let's look at the laws related to police use of hidden and noticeable bodycams, data storage, and privacy rights.
Penal Code Section 832. There are laws in place exempting police California's invasion of the right of privacy laws to aid them in the performance of their official duties. For example, in 2015, AB 69 amended California Penal Code Section 832 with guidelines for storing “non-evidentiary incident” data for 60 days. Also, it required data storage for at least two years anytime officers use force or arrest someone or when personnel complaints are filed against a cop or the arresting agency.
It also sets forth a chain of custody and storage protocols to preserve evidence and body camera data storage locations. And in some instances, it may allow third-party data storage vendors to protect information. Also, the police departments must retain ownership of body cameras. Last, they are not supposed to be accessed or released for any unauthorized purpose and shall not be uploaded onto published c and, social media type social or another online type of interweb.
Budget Act of 2015. On June 24, 2015, AB 93 was approved by our governor with one line-item veto. This bill appropriated $10 million to the Board of State and Community Corrections. Their task was in part to "administer grants" that included one-time body-worn camera program expenses.
Penal Code Section 633.02. In August 2015, California's governor signed AB 424 into law, which amended Penal Code Section 633.02 to exempt law enforcement officers with body cams from wiretapping statutes.
Section 135 of the Code of Civil Procedure, to amend Sections 30029.05, 30061, 70602.6, 70616, 70617, 70657, and 70677 of the Government Code, to amend Sections 1230, 1231, 1232, 1233.1, 1233.3, 1233.5, 1233.6, 1233.61, 1233.9, 1233.10, 1369.1, 1370, 6402, and 13602.1 to add Section 42008.8, Vehicle Code Sections 4117 and 4143 of, and to add Sections 3313, 4023.6, 4023.7, and 4023.8 to, the Welfare and Institutions Code. In June of 2015, our governor signed SB 85 into law, amending and adding the above sections. This set up a slush fund for the CHP to "study" the use of bodycams.
Government Code Section 6254.4.5. In September 2017, AB 459 was signed into law by California's governor. It provided that the California Public Records Act shall not require disclosure of a video or audio recording created during the commission or investigation of crimes like rape. So it covers incest, sexual assault, domestic violence, or child abuse showing a face, intimate body part, or depicting the voice of a victim in the recording.
So we can see that law enforcement has superior rights to hold on to information gathered in public and private. The rules are expanding into the realm of drones and other surveillance methods our founding fathers would indeed have frowned upon in California's single party "police state."
They're YOUR Rights, So Know Them!
Don't let anyone officer or news channel change your mind. No law supersedes the First Amendment. Your rights are just that.
Filming our Public Servants Helps Keep them Honest?
The good news is that some law enforcement officials are protecting citizen's Constitutional rights. One example of this occurred during Thanksgiving weekend at an airport in Albany. A grassroots movement informed travelers about the TSA body scanner's dangers and filmed the Albany International Airport's encroaching pat-downs. One airport official demanded the activists stop shooting, show their identification, and threatened arrest for breaking the law.
Local law enforcement arrived at the scene, where the sheriff told the airport official that the activists were not breaking the law. He could not arrest them or order them to show their identification. This is no surprise since the Sheriffs almost universally understand that many federal enforcement officials trample on individual rights, as a matter of course.
The sad part about this is that not all law enforcement members will behave in this manner, as did the Shire of the Reef above. In most cases, law enforcement threats of arrest and intimidation are usually enough to make the activist or individual stop filming. The one thing to remember, it is legal to film the police.
In the Golden State, each jurisdiction and department wants to handle these primarily "false arrest" cases differently. Sadly, the many state prosecutorial agencies needed to see it in writing from the governor. Until that happened, they failed to force their officers to start honoring the law on filming police. But Gov. Jerry Brown signed into law Bill 411. So now California is in accord with the Supreme Court on filming police while on duty.
This rule means when police officers detain a suspect or make an arrest, witnesses can use cell phones to record the incidents. Even the person that is detained may record the event. In the past, many of the recorded videos have later posted on social media websites or YouTube. Many have gone viral, according to Sacramento County Sgt. Jason Ramos, it is the way the world has become. Cops hate it!
- Yawn
Sgt. Ramos said that the officer's jobs are more difficult in many cases due to citizens' recording activity. So, the argument goes, there is a potential for officers to become preoccupied with the people making the videos. And of so, officers won't stay focused on the arrestee or the investigation. And officer Ramos went on to say there is a "fine line between being a diligent citizen with a camera and interfering." I call nonsense. A diligent person would just remain outside the zone of interference. Then they would exercise good judgment. The film of the altercation can at least show evidence of reasonableness or not.
Senate Bill 411.
State Senator Ricardo Lara was the author of Senate Bill 411. And he says he believed it was essential for it to be clear in a statute. Now an average person can lawfully record a police officer without concern of arrest or intimidation. Of course, that is pure poppycock, as noted at the beginning. Knowing cops as I understand them will not stop cameras from being stomped. Also, other methods will likely get employed to "get control."
Lara said that having the code in the state's law helps cell phone evidence keep people safe. The new law comes after an early August incident. In that case, a Rohnert Park officer pointed a gun at a man who recorded the event on his cell phone. The officer is now facing a lawsuit. One of the cell phone videos recorded made national headlines. This was the Eric Garner choking video.
Lara said everyone has cell phones today. And now, we may find them a helpful way to "deter violence." The Garner video is one of the examples. And mobile videos can provide evidence in police wrongdoing investigations. The Senator did make it clear that the bill does not in any way give citizens the legal right to interfere with police. But this is already what the law was before the bill passing.
Bill 411 Support From ACLU.
Sen. Lara had support from the ACLU for the bill. In a written statement and the law, Lara would help ensure every citizen can exercise their Constitutional right. Making audio or video recordings or taking photos is a protected right. The letter goes on to say it is a "clear constitutional right to photograph and record the police in the performance of their duties."
The letter ends by stating the bill ensures the public's right to gather information about their officials. Also, it shows abuses. And it may affect the functioning of government in a more general sense.
We applaud the ACLU's efforts at getting the state to notify its agencies. But we question the need to spend so much time and energy on this bill. Passing a law to mandate what already is the law is not an efficient administration of justice. Also, it sheds light on why jury nullification is making more and more sense.
How Do I Film and Still Avoid False Charges for Obstructing or Delaying?
- Do stand far away enough from the law enforcement officer to allow him or her to feel safe from any violence on your end.
- Do not run, at, or stand close to an officer who is performing their duties if, in any way, you provide a physical barrier to them.
- Be respectful.
- They are not your enemy.
- Let them know that you are exercising your First Amendment Right to film.
- And tell them if they feel you are a threat, to say to you right away.
- That way, you can alter any perceived behavior to make them feel safe in the performance of their duties, short of you not exercising your right to record them.
At the end of the day, when tempers flare, you may never be able to avoid injuries when filming confident police. But if you remain in compliance with your rights, duties, and obligations as a citizen, the law is on your side. If you were attacked while filming law enforcement, let us know.
The Case For Police Themselves Recording Detentions And Arrests.
You may be asking yourself what all of the debate is over. After all, the police often record themselves. In a national and local push over the last ten years, many police departments switched over to a system where police wear body cameras. This enables a record of their interactions with the public. It also helps clear up many questions revolving around law enforcement and their activities. The overall program tends to work.
The Federal government found that police officers tend to be more mindful of their surroundings when wearing the cameras. In one trial involving the Las Vegas Metropolitan Police Department, or the LVMPD, there were significant benefits to wearing the cameras. In the U.S. study, researchers followed over 400 officers in four different districts and examined bodycam footage. Overall, there was a clear benefit, as the report indicated below. Overall, it resulted in potential cost savings and better outcomes for both the police and the general public.
The findings of this study suggest that BWCs have strong potential to benefit police agencies and communities alike. Not only do they reduce complaints against officers and use of force incidents in large measure (and the corresponding costs of resolving those complaints and use of force incidents), they seem to increase police productivity, evidenced by the modest but significant increases in police citations and arrests.
Cases like George Floyd's are examples, but not every type of footage is the same.
But
Body cams are likely a good option for police departments. They are no longer monstrously expensive. They're comfortable to wear and easy to track. Easy for the Department to keep the footage from the officers' patrols. However, they are often just a stopgap in the overall picture. In other research conducted, the cameras are not a panacea or a total conclusion to the question. Consider the recent analysis by Pew Trusts on the subject. There are several concerns, including the need for more studies and training behind the cameras. Furthermore, as we see in the case of George Floyd's death, it's not clear whether or not wearing the cameras makes a significant difference in outcomes for police and the general public.
Other Methods Of New Surveillance Methods And Your Rights Of Privacy.
With drones, wall piercing hearing technology, and other evolving, ever-evolving high tech, it's getting more challenging ad harder to be left to your own devices. Orwell warned of Big Brother watching you. But on his best day, I doubt he could have imagined how powerful the surveillance state has become. For example, is your backyard, swimming pool, or open bedroom window free from law enforcement's prying eyes? Do police need a warrant for that? What about dash cams?
Although allegedly all of this is being pushed on us to stop police abuse, could the cure be more deadly to our rights than the disease of police abuse? Some legal scholars believe pretextually; these tactics make us like Communist China. After all, California already has a leftist, citizen, and social media monitoring/censoring, a single-party system in place. Now it's just a matter of doing away with the electoral college and offering people more free things in exchange for safety, so they say.
So far, we see no evidence that body cameras are stopping police misconduct. What we are witnessing is terrible police using more creative methods to thwart being filmed or filming. From blocking their webcam or turning away from the suspects as they abuse them, so the camera does not capture the event. So was giving up your privacy worth it? What do you think? We do see evidence that citizens filming police and filing internal affairs complaints do help thwart excessive use of force claims.
What About Drive Alongs with Drones?
One solution is to drive along with police drones; in that scenario, rather than unreliable bodycams for preventing police misconduct, a drone film the event from the suspect and the officer's perspective. In that case, the officer could wear a webcam with an audio feed to the drone. If the officer faces rioters or someone causing trouble, now the drone has everything on tape, and then maybe LEO will do the right thing.
POLL Should Ride Along Drones Be Used In Tandem With Police Patrols To Record Arrests and Contacts?
If you own property needing surveillance cameras or think hidden cameras are watching you, an attorney who understands privacy laws would be a helpful start in your quest to maintain your sovereignty. You can speak with a local personal injury lawyer by visiting one of our nearby offices or using our online attorney search function to help resolve the issues pressing in your case. Also, contacting law enforcement asking for protections or even seeking a court injunction or restraining order may be advisable.
Conclusion.
Above, we discussed the law as it relates to recording police and being recorded by the police. We discovered it is not illegal to privately or openly record police in the location. They have no reasonable expectation of privacy. We learned about recent changes in the laws dealing with police bodycams. And we also talked about the ways technology and how police states invade our lives.
We hope you learned a lot. However, even knowing your rights won't protect you from a bad cop. So if you were falsely charged with a crime related to recording and personally injured, our helpful, expert lawyers want to hear about your problem. We want to solve your problem by helping you sue the City or State and get you money to try and make you whole. Our police misconduct attorneys are among the best and brightest injury lawyers in Los Angeles. And we even offer a free case review with a local personal injury attorney to discuss your case and explain your rights! If you want to learn more about the next steps to take, you can receive a confidential consultation with a Multi-Million Dollar Advocate's forum member today. You can call us today at (213) 596-9642 or you can use our convenient online contact form.
Sources:
- Ehline Law blog: Civil Rights: https://ehlinelaw.com/blog?t=civil-rights
- New Findings from a Randomized Controlled Trial at the Las Vegas Metropolitan Police Department, 2017: https://www.ncjrs.gov/pdffiles1/nij/grants/251416.pdf
- Pew Trusts: "Body Cameras May Not Be the Easy Answer Everyone Was Looking For": https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/01/14/body-cameras-may-not-be-the-easy-answer-everyone-was-looking-for.
- Reason: "7 Rules for Recording Police": https://reason.com/2012/04/05/7-rules-for-recording-police
- Recording Police Officers and Public Officials | Digital Media Law Project: https://www.dmlp.org/legal-guide/recording-police-officers-and-public-officials
- ACLU of Northern California Title: "Know Your Rights: Police Interactions": https://www.aclunc.org/our-work/know-your-rights/your-rights-and-police
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