New California Law Upholds Public Right to Record

Will major civil liberties measure change the way California police behave?


When I was covering the Republican National Convention in 2004, New York City police cast the widest nets — literally, orange nets — to nab some rambunctious protesters. Some news photographers and other journalists were caught up in those nets, also. They eventually were freed, only after spending hours in filthy, makeshift holding areas.

New York City ultimately paid $18 million to settle the resulting civil-rights lawsuits. But I remember seeing some of this take place and realizing how deeply this chilled the reporters' ability to cover the news of the day.

I thought of this as legislators this year debated a bill by Sen. Ricardo Lara, D-Bell Gardens, that makes it legally clear journalists and citizens with cameras (and cell phones) have every right to record the activities of police officials as long as they are in a public place — and aren't actually interfering with officers doing their job.

Obviously, it was wrong for New York cops to arrest photojournalists. It's also wrong for California police to do what they often have done — confiscate the cameras and even arrest people who are recording the actions of their public servants operating in public spaces. SB 411, which was on Aug. 11 signed into law by Gov. Jerry Brown, removes any doubts. The bill was long overdue.

"SB 411 clarifies individuals' First Amendment right to record police officers by stating that a civilian recording while an officer is in a public place, or the person recording is in a place he or she has the right to be, is not violating the law," according to a statement from Lara's office. "Additionally, it makes clear that recording does not constitute reasonable suspicion to detain a person or probable cause to arrest."

Not surprisingly, it garnered the backing of civil-liberties and journalistic organizations. "It's great news," said Jim Ewert, general counsel for the California Newspaper Publishers Association. "Not sure if agencies will act any differently, though. Not one law enforcement agency opposed the bill. (There's) nothing worse than bracing for a fight and no one shows up."

Ewert touches on the big question: Will it fundamentally change police behavior?

San Diego area freelance journalist Ed Baier, who has been arrested three times under the current statute, says existing law had been "vague and open to interpretation. It gives the officer a lot of leeway to arrest or cite someone." Police will now have less incentive to even approach journalists who are recording an incident unless they are directly in the way, he argued.

"To me, it's kind of a repeat of the obvious," said Mickey H. Osterreicher, general counsel of the National Press Photographers Association, noting that it "tell(s) them they need to uphold the Constitution they took an oath to uphold." Will it work as intended? "Like chicken soup, it might not help, but it doesn't hurt."

Osterreicher — a former deputy sheriff who trains police agencies on media-related matters — repeated a common police expression: "We can do this the easy way or we can do this the hard way." Police, in other words, can "respect people's rights or get sued."

Given the latter possibility, I expect most agencies to choose the former. And that's where the new law seems useful: It eliminates any vagueness. The beauty of SB 411 is it applies not only to credentialed journalists working for mainstream media outlets, or even to freelance writers and photographers. It is designed to protect everyone. After all, the First Amendment protects all Americans, not just special credentialed groups of them.

The timing is good given modern cell phones have turned almost everyone into a photographer and given recent nationwide news events. In a statement, Lara said the law is important "at a time when cell phone and video footage is helping steer important national civil rights conversations … ."

It's hard to have these "conversations" if people fear getting arrested or having their equipment confiscated. Thanks to this new law, police agencies are going to have to cast a much narrower net.

NEXT: Movie Review: American Ultra

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  1. Police will now have less incentive to even approach journalists who are recording an incident unless they are directly in the way, he argued.

    I don't understand how this journalist - and even it seems Greenhut - have optimism that police will be so concerned that taxpayer dollars are at risk in a lawsuit settlement that they'll change their ways. They have more incentive to destroy video evidence of misconduct and cause doubt it ever happened than to suffer the consequences of whatever might be on that recording. In other words, it's less personally damaging to a law enforcement officer to have evidence they smashed someone's property than to have evidence they smashed someone's face.

    1. Personal accountability is the only incentive that matters.

    2. Reverse Screws v US and start putting these pigs in PMITA Federal Prison.

    3. As cops like to say, "you can beat the rap but you can't beat the ride". In other words, the arrest and hassle IS the punishment. Not until LEOs are held personally liable for bad arrests will this change.

  2. "Police can respect peoples rights or get sued." Which would be a solution if that's what happens, however, the officer isn't the one paying the damages, it is either an insurance company or his employer's revenue source paying. Make the cops pay for their misdeeds and the problem wil be solved.

    1. Put cops in prison and their families in homeless shelters. Shit will change right quick.

      1. Not likely to happen. Besides, what charge would you lay against the offending persons family?

    2. LEOs need to have individually-underwritten liability insurance. Their employer can pay the premium, but they have to be individually underwritten--no group coverage. If you're uninsurable, you're unemployable. Maybe have a deductible to make them put more skin in the game.

  3. As municipal budgets suffer from a decreased tax base and bloated pensions I think police will be given wider latitude to enforce ever more meaningless and trivial rules to increase revenues. The number of lawsuits will increase as government unleashes the hounds to keep the revenue stream flowing resulting in increased insurance costs, thus causing government to hire more police and raise fines to compensate, a truly vicious circle of violence and constitutional violations will occur, with an ever more angry populace. Things will become even uglier than they are now.

    1. Yes, it does "speak for itself".

  4. Does the bill specify penalties for police who violate a citizen's right to record or who arrest them for exercising this right?

    If there aren't severe penalties (at least a year or more in prison and termination of employment in law enforcement), the bill is not likely to be effective.

    On to your smartphone. With this app anything your record is sent directly to the ACLU and you can set up your phone to lockout anyone trying to get into it.

    1. Now that sounds interesting, though looking at the record of the ACLU, cases they have taken, compared to cases they haven't, issues they fought, as opposed to those they haven't, I wonder.

  6. "tell(s) them they need to uphold the Constitution they took an oath to uphold."

    This is the key quote; if these thugs aren't going to respect the civil rights already codified into law, how is one more law going to help?

  7. Even if police aren't held individually responsible, in a better world they might get fired if they trigger a lawsuit that ends up costing their employer big bucks. Of course, with the strength of the police unions that probably won't happen either.

    1. There's a solution to police unions: RICO.

      1. Who might it be that prosecutes the case?

  8. Now if we can just get an app that will let us record widescreen while holding the phone upright...

    1. Oh, the hardships you have to deal's just inhuman!

  9. Not having seen/read this newly passed legislation, combined with the fact that my background was Mechanical Engineering Design and Construction, not Law nor Double-talk, the following might not sound especially good, it does however reflect my understanding of Life as it is, not as it Should be, as well as my understanding of Human Beings.

    Until the offending individuals are fired, loosing any and all pension benefits, and criminally prosecuted for their actions, the same strictures would of needs apply to "management", nothing will really change. By the way, notwithstanding some commotion, the scam of Civil Asset Forfeiture aka Theft Under Color of Law carries on still, doesn't it? I rest my case here.

  10. The only change of consequence would be the absolute removal of all sovereign protection from individual officers for infringing the civil-rights of another person.
    The have to have skin in the game.

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