Since its inception, our nation has struggled to find the right balance between protecting the rights of individuals—our civil liberties—and ensuring that government has the tools to protect the public's safety and security. Since the terrorist attacks on 9/11, that pendulum has swung sharply and understandably in the security direction.
Such a tilt has not only been obvious in national policymaking, but at the state level, where legislators are attuned to public attitudes and to the demands of special interests.
Police unions, for instance, are among the most powerful interest groups in California and few state legislators from either party want to endure their wrath during campaign season.
There are signs, however, the pendulum has hit its apex and is starting to shift direction. Because of the riots and protests over police killings in Ferguson, Mo., Baltimore and New York City, policing issues have become a hot topic in the Legislature, with more than 20 bills introduced this year that address police use-of-force issues.
The term "civil liberties" is a broad one that includes not only the question of when police should use deadly force—but matters of surveillance and privacy, and anything dealing with people's ability to exercise their basic freedoms of speech and association free from government overreach. Other events—such as data breaches and National Security Agency spying—have propelled such matters into the forefront, also.
Restoring the balance
"Communities are now alive with these issues and there needs to be a reset on the balance of power between the police and the national-security infrastructure and individual rights and it's just been so out of balance since 9/11," said Nicole Ozer, an attorney with the American Civil Liberties Union of California. Her group is backing a major privacy bill as well as model local ordinances requiring public debates before cities pass surveillance laws.
Police organizations agree that there's room for improving police accountability, but caution against going too far in the other direction. They welcome the discussion, but worry about excessive paperwork requirements mandated by some of the bills, and also raise some unresolved concerns about privacy issues.
"Our concern is it's maybe an overreach, it's maybe moving too fast and too soon," said Chula Vista Police Chief David Bejarano, head of theCalifornia Police Chiefs Association. For instance, he favors the use of body cameras, which have significantly reduced allegations over excessive force. But he wants any new laws to give local agencies the discretion to set their own policies. If the laws are too restrictive, he fears they will discourage police from embracing these cameras.
"We all have the same goals, even though there's a little difference of opinion on how we get there," Bejarano added. But he welcomes the discussion given that it's been nearly a half century since U.S. policymakers have taken a comprehensive look at the nation's approaches toward policing.
Likewise, Assemblyman Tom Lackey, a Palmdale Republican who spent 22 years with the California Highway Patrol, agrees the Legislature is having a timely discussion. "We've had a few instances that have really gotten a lot of attention that have hurt law enforcement's image and we need to do whatever we can to build that back—and some of these mitigation measures are possible pathways of accomplishing that."
There's been fevered activity at the Capitol on many fronts. Legislators have authored bills that restrict the use of drones, protect against the misuse of DNA samples and deal with public and private data breaches.
They also have authored bills to ensure the right of individuals to make cellphone recordings of police, restrict district attorneys' use of secret grand juries and halt acquisition of military equipment by local police.
Another one would restrict police agencies' use of "civil asset forfeiture"—the seizure of property from people who have never been convicted or even charged with a crime.
Assembly Speaker Toni Atkins, D-San Diego, even created a new Committee on Privacy and Consumer Protection to handle a panoply of privacy and individual liberties issues in one place—rather than as a hodgepodge manner in a variety of Assembly committees.
It's a small world
"We've taken a very big world with a lot of room and made it a whole lot smaller, where people really can keep tabs on each other," said the committee's philosophically minded chairman, Assemblyman Mike Gatto, D-Burbank. In other words, new technologies make it extremely easy for everyone—including the government—to monitor our behavior.
He lumps privacy-oriented legislation into three categories: "One of them is the need to protect citizens from … government intrusions on privacy. The other is the need to protect citizens from corporate intrusions of privacy. The third is the need to protect citizens from fellow citizens intruding on their privacy." The state is doing well on the third, not so well on the second and terribly on the first, he said. The fate of his health-privacy bill (SB 170), which would have restricted the government's use of DNA-related data, illustrates his point.
Newborn DNA screening is a public-health success story, but he is troubled about what happens after the screening takes place. In California, the state owns the samples and doesn't get the permission of parents before it sells the data to private companies for testing. Those samples, he said, can fall into the wrong hands and may—in a future scenario—be misused to discriminate against a person based on HIV status or a genetic predisposition toward, say, violence. Despite the dystopian imagery, this is a serious concern given rapid advancement of DNA technologies.
The bill, which would have required the state to notify parents that it keeps and tests DNA samples, has now been gutted. "Some of my colleagues… didn't feel that citizens could handle the truth and they actually did not want to disclose to the public that the state of California is taking their children's blood and DNA, storing it forever and leasing and selling it to researchers to be experimented on," he added.
"There are more (civil-libertarian) proposals, but a) Do they move the ball forward meaningfully and b) What are their fate?"
He remains skeptical of any long-term progress, especially given both parties' tilt to the political center—and civil-liberties concerns usually come from further reaches of left and right.
Policing the police
One noteworthy measure that is moving forward makes clear in the legal code the public has the right to videotape or photograph police officers while they are doing their jobs in a public place. Sometimes California police officers confiscate the cameras of onlookers and charge them with obstruction of justice. SB 411, by Sen. Ricardo Lara, D-Bell Gardens, says such photography "in and of itself" is not obstruction. A person can still be charged for actually interfering with an officer, but not just for recording the officer's activities.
But other police-reform bills are struggling to survive—or stay true to their original intent. Assemblywoman Shirley Weber, D-San Diego, introduced AB 66, which includes some reporting requirements for body cameras but mainly "would prohibit law-enforcement officers involved in serious use-of-force incidents that result in serious bodily injury or death from viewing the video until they have filed an initial report."
That issue became a huge stumbling block in the committee. Civil-libertarian groups worry that police accused of wrongdoing are given a chance—not available to the public—to align their reports with what happened. It makes it hard to know what they were thinking at the time of the incident. But police officers fear they will be punished for simple lapses of memory if they don't get to see the video first.
Weber agreed to a compromise that would allow the watching of the video to be a local decision. "We came back and for whatever reason something went here, something went there, one member went south, boom, boom, boom, bang, bang, bang and what we saw in the end that came out was not what we thought we agreed upon," she said. In her view, the bill now would do more harm than good because it was reworked to give officers the right to first view the video—the opposite of what she had intended.
Lackey said he couldn't support it in its original form: "Why wouldn't we afford law enforcement, who has a responsibility for documenting the event, full access to all information that would refresh their memory and make them build the trust and replace some ill-conceived perception that they are trying to trick somebody or trying to exaggerate?"
But others saw the conundrum. "There are pluses and minuses to reviewing the tape on the part of the officer," said Joe Vargas, a retired Anaheim Police Department captain, who now is a consultant for law-enforcement agencies. "On the one hand, he'll probably write a heck of a lot more accurate report. On the other hand, it also contaminates his impression of what he thought he saw as opposed to what he's actually seen."
Weber's bill requiring the state Department of Justice to compile racial data on police stops is moving forward—but legislation requiring agencies to compile an expanded list of data on use-of-force incidents was held in committee.
"We're into this battle that continues," Weber added. "You've got a lot of chatter now but I'm not sure how far we're going to move with it. It will be interesting to see what bills come out and what they look like in their final form. That will be the critical issue."
Perhaps the most far-reaching civil-liberties bill moving forward this session is the California Electronic Privacy Act, which would require police officers to get a warrant or wiretap order to access electronic communications from companies such as Facebook or Google. It was introduced by one of the Senate's most liberal members, Sen. Mark Leno, D-San Francisco, and one of its most conservative members, Sen. Joel Anderson, R-El Cajon.
In the past, it "die(d) on the vine in the face of opposition from law enforcement, which for some reason finds it wholly objectionable that they'd be forced to get a warrant before demanding personal information," said the ACLU's Will Matthews. "But what makes this effort so distinct… is that every major player in Silicon Valley is lined up in favor of this bill.… These companies know that it is imperative to their bottom line that their customers feel secure in knowing that their electronic information is secure and protected."
The big question is whether Gov. Jerry Brown—who is a mixed bag on such civil-liberties legislation—will agree. "The problem is eyeing the needle," Anderson told me. "We always need to balance civil liberties against proposed security.… We need to stop terrorism but not at the cost of our liberties."
He believes SB 178 strikes the right balance, but the California State Sheriff's Association argues the bill would imperil legitimate investigations—and includes "burdensome and unnecessary reporting requirements."
The privacy conundrum
Some argue that for all its flurry of activity, the Legislature isn't tackling the tough issues that need to be resolved.
"The body camera is a technology whose time has come," said Vargas, the retired Anaheim police captain. But he wonders why the state's open-records laws, developed mainly in the 1970s, haven't kept pace with the rapidly advancing technologies. That's an area he believes state legislators need to act—and provide some local guidance and a modern update.
Vargas uses the hypothetical example of a city councilmember, who gets in a drunken argument in public and a police officer is called and the body camera records the incident. Should that be released to the public? How about when a police officer pulls a driver over for a routine stop and records the person doing something potentially embarrassing? What are the standards? Who gets to see what and when?
Some of these bills assert such a strong privacy protection they "make it more difficult for the public to access the data and oversee the government," said Jim Ewert, general counsel for the California Newspaper Publishers Association. It would be ironic, he notes, if bills designed to protect the civil liberties of the public end up shrouding more government behavior in secrecy. Yet he's not the only one to see a changing debate.
In 2014, then-Sen. Ted Lieu, D-Torrance, co-authored a bill (with Republican Sen. Anderson) that would have prohibited the state government from cooperating with the National Security Agency in its efforts to collect electronic information or metadata from anyone in California. The governor signed this largely symbolic law, but vetoed another more substantive bill by Lieu and Anderson to place limits on police use of drones.
Since being elected to Congress last year, Lieu has been a steady voice against the NSA's warrantless record collection activities, but it hasn't always been that way—a point he readily acknowledges. "I've always believed that the most important duty of any legislator is to defend and protect the Constitution," Lieu said. "I just wasn't aware of all these violations of our constitutional rights by our federal government and in some cases state and local governments. I think part of it was just awareness."
The leads to the big question: Are we seeing a long-term shift in awareness or just a passing fad? As the news cycle changes, Ewert fears legislators will move on to other things. "Reacting to headlines is not always the greatest way to develop public policy," he said. "It takes a great deal of time to work through these issues."
Likewise, Chapman University law professor John Eastman sees the legislative push as being "a lot more political than civil-liberties driven." In his view, it's more about politicians capitalizing on national issues for a coming election than anything else.
But whatever the political realities or motives of legislators, there's no question this legislative session has resulted in the introduction of many bills that at least try to readjust the balance between liberty and security—something Sacramento observers haven't seen for many years. Despite disagreements over many of the bills' details, civil libertarians and police advocates agree that this is a generally good thing.