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.