Governor Signs Bills Banning Use of Grand Juries in Police Shootings and Allowing Citizen Recording of Police Officers

Copyright CS Muncy

recording-policeNearly a year to the day after a Ferguson police officer was accused of killing unarmed black teen Michael Brown, Governor Jerry Brown announced his signing of Senate Bill 227, authored by state Senator Holly J. Mitchell, into law.

The killing spawned protests, there was a police crackdown, but ultimately the prosecutor was criticized for using a grand jury as the vehicle to determine whether or not to charge the officer with a criminal offense.

Widely supported by a considerable coalition of activists and public interest groups, SB 227 calls for the elimination of use of a criminal grand jury to investigate cases where a member of law enforcement is alleged to have caused the death of a suspect, either by a shooting or by use of excessive force. According to a release from Senator Mitchell’s office, “It has been heralded by many as a necessary step towards restoring accountability and transparency to a system of justice that operates almost entirely outside any kind of meaningful oversight.”

“One doesn’t have to be a lawyer to understand why SB 227 makes sense,” said Senator Mitchell.  “The use of the criminal grand jury process, and the refusal to indict as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system.”

A chief criticism of the grand jury process is that criminal grand jury proceedings differ from traditional trials in a variety of ways – they are not adversarial, as no defense attorneys, or judges, participate. There are no cross-examinations of witnesses, or any objections. There is no oversight to how prosecutors explain the law to the jurors and what prosecutors say about the evidence – and the proceedings are secret.

“Communities want a criminal justice system that is transparent and which holds all of the players—law enforcement, prosecutors and judges, accountable when there are civilian deaths resulting from the conduct of officers. Criminal grand juries do neither,” said LaDoris Hazzard Cordell, northern California’s first African-American woman judge, and former San Jose police auditor.

As Judge Cordell notes, “No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.”

“In high-profile, controversial cases, where officers use lethal force, prosecutors face a dilemma,” she writes. “If they don’t file charges against officers, they risk the wrath of the community; if they do file charges, they risk the wrath of the police and their powerful unions. By opting for secret grand jury proceedings, prosecutors pass the buck, using grand jurors as pawns for political cover.”

The retired judge added, “I applaud Governor Brown for doing the right thing and sending a message to all Californians that his administration wants our criminal justice system to be fair, transparent and accountable.”

Groups representing communities of color have been especially vocal in their support of bills designed to bring greater transparency to law enforcement operations and justice proceedings.

Under California law, all felony cases which go to a trial by jury must first undergo a screening process consisting of either a “preliminary examination” or an “indictment” by a grand jury. The choice as to which route is taken is up to the prosecutor alone. SB 227 is supported by the CA chapter of the NAACP, the CA Alliance of Boys and Men of Color, the Mexican American Legal Defense and Education Fund, among others.

The Vanguard spoke with Senator Mitchell back in February of this year. She said at the time that the bill was not specifically about Ferguson or Staten Island.

“I am not drawing a direct correlation to those events,” she said. But she added, “I think those events have caused everyone across the country to look deeper into their systems in their own states to really figure out what the process is.”

As a policymaker, she is looking to “rebuild the sense of confidence and trust between my constituents and their expectation around the judicial process that protects them in the event a cop has used excessive force.”

Senator Mitchell said, “As I looked more deeply into the grand jury system, particularly criminal grand juries, I talked to constituents, I realized it is such a kind of black hole. People don’t generally understand the difference between a grand jury and a regular jury trial.”

“It really lacks transparency,” she added.

However, the California District Attorneys Association and the California Police Chiefs Association opposed the ban.  They argued instead that the grand jury should be preserved as an option, and that by imposing a blanket prohibition, it would discriminate against police officers based on occupation.

Also on Tuesday, Governor Jerry Brown signed Senate Bill 411 by Senator Ricardo Lara to clarify that civilians’ right to record public safety officers in California is permissible under the law. Known as the “Right to Record Act,” SB 411 has received bipartisan support as it advanced through the legislature and onto the governor’s desk.

 “Today, California makes it unequivocal – you have the right to record,” said Senator Lara. “With the stroke of a pen, Governor Brown reinforces our First Amendment right and ensures transparency, accountability and justice for all Californians. 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.”

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. Additionally, it makes clear that recording does not constitute reasonable suspicion to detain a person or probable cause to arrest. This bill also protects police by ensuring that these provisions do not allow a civilian to obstruct an officer.

“This law makes it crystal clear that a person who photographs or video records a public officer or police officer, in a public place, and does not physically interfere with that officer, is not committing a crime and is not subject to detention or arrest,” said Susan Israel of the California Public Defenders Association Legislative Committee Member.  “It is the embodiment of protections guaranteed by the First Amendment to the United States Constitution. We applaud Governor Brown’s signature on this measure at this crucial time in our nation’s history.”

“CACJ is proud to co-sponsor this timely legislation. Following various high profile incidents across the country, it is essential for the community to hold the police accountable without fear of being intimidated or arrested,” added Dennis Garcia of the California Attorneys for Criminal Justice.

Larry Doyle, from the Conference of California Bar Associations, stated, “SB 411 reaffirms the right of citizens to record the official actions of law enforcement in a reasonable, non-interfering manner.  This protects the public from misconduct and excess by law enforcement, and also protects good police officers who could otherwise have their careers and reputations damaged by untrue allegations of misconduct.  It is a win-win for justice.”

In California and beyond, members of the public have been arrested while recording or photographing police activity in public places.

News accounts and videos have surfaced showing that some civilians have been arrested for recording officers in the cities of Los Angeles, Torrance, and San Diego, as well as in the County of Orange. This conflict extends past police officers and civilians to professional photographers and media personnel.

In Berkeley, CA, a journalist was arrested after recording law enforcement officers in a public place. Last week, a bystander caught on video a police officer in North Charleston, SC, in a shooting incident that has led to charges being filed against that officer.

—David M. Greenwald reporting

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  • David Greenwald

    Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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36 comments

  1. “Nearly a year to the day after a Ferguson police officer was accused of killing unarmed black teen Michael Brown,”

    for which both a Grand Jury and the DOJ exonerated the Ferguson police officer Darren Wilson of any wrongdoing.

      1. Both.

        I just thought the whole story should be told about the Ferguson incident, not just the snippet that was used in the article.

        It turned out that indeed the Grand Jury had it right.

        1. The snippet used in the article was the justification for the law.

          “It turned out that indeed the Grand Jury had it right.”

          Possibly, but that doesn’t mean it was the right procedure.

          1. This is the concern with using the Grand Jury as expressed by Senator Mitchell: “A chief criticism of the grand jury process is that criminal grand jury proceedings differ from traditional trials in a variety of ways; they are not adversarial. No judges or defense attorneys participate. There are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.”

            Whether the Ferguson Grand Jury got it wrong or right, those concerns still remain. You can get the right result with a bad process.

  2. “…journalist was arrested after recording law enforcement officers in a public place.”

    And several years ago, when Davis P.D. had my child’s friend pinned to the ground for being drunk in public @ Davis High football game, they yelled at the kids and the housewives to back off, and turn off their cell phones. The moms mostly complied, the kids just moved further away from the cops.  It’s all on video, but I have a strong suspicion the city settled and there may even be a gag order. Have no idea & don’t want to know, for fear of officer retaliation against my kids.

    No matter how many readers try to push my buttons on this subject, I will not respond further.  Just ask around town, I’m sure there is at least one person who still lives in Davis & remembers that football game. The kid involved has moved on with his life and is successful and happy and no threat to anyone. I’m proud to know him. He is a good person.

    1. If the city “settled,” it’s expenditure of public funds, any you have the right to find out. So, move from the “strong suspicion” state. Go down to City Hall, give the particulars, and ask if any settlement was reached. Replace suspicion with facts, then return and tell us.

       

      1. Thanks Phil for the info.   I highly doubt if anyone were to do as you suggest and get the particulars that there would be any kind of police retaliation whatsoever.

  3. To the degree that this bill serves to promote transparency in the detection, investigation and ultimately the management of police use of excessive force, I see it as a step in the right direction. As Phil Coleman has pointed out, transparency also applies to the actions of those who are under suspicion and will most likely cause some to appreciate their own negative impact on police civilian interaction and hopefully lead to more civil interactions from both sides as awareness increases that all of our police / civilian interactions will be under direct scrutiny.

  4. if they do file charges, they risk the wrath of the police and their powerful unions.

    How much of this thinking clouds the judgement of the Police and the Courts? Ferguson? Wrath? or threats?

    Are Courts under threat from the Police? Sheriff? DOJ? I would think they would all be sworn to uphold the law, but this sounds like a movie plot, not real life. Human Nature screws up a good idea once again.

      1. Justice for All – I read it somewhere.. not “Justice if it doesn’t piss off the police” or “Justice as long as it is not an out of control cop because his buddies would retaliate.”

  5. No one has a reasonable expectation of privacy, in public places! Cops have routinely asserted this fictitious protection for decades. Hopefully, in California at least, we have heard the last of that.

    ;>)/

  6. Old Governor Moonbeam-Lawyer did what we would expect him to do… pander to his base and hand his political benefactor trial lawyers another money-making opportunity.

    First, I don’t have a problem with the recording part of this law.  As long as those recording do not impede or interfere with the work of the cops in any way, shape or form.

    Can someone explain what the new process will be?  It is irritatingly missing from all reports.  I am thinking that the liberal media purposely leaves it out because of the crap storm it will generate.  The liberal media loves this stuff, as does the ACLU and all other liberal activist groups.  The reason?  Today there are two trial system.  The formal judiciary and the court of public opinion driven by our immoral and politically-controlled main media.  This crap legislation destroys the formal process and turns it over to the latter.

    Darren Wilson has been exonerated after several investigations even up to the race-baiting Attorney General office of Eric Holder.  Yet he cannot get a job.  He cannot be out alone for fear of being executed.  And Old Governor Moonbeam just added more fuel to that type of fire.

    I read an interesting comparison to the various generations that make up current American society.  I need to find it and publish it.  But one point I remember is that the Baby Boomer generation and some of their offspring are prone to want to challenge all rules and change all rules, respectively.

    The problem is that they pursue these changes from an emotional basis lacking full impact  analysis.   And in doing so they keep us stuck on a rat wheel of constantly trading one set of problems for another in pursuit of unattainable utopian perfection.

    The Grand Jury process is not the root problem.  The root problem is primarily caused by those passing this legislation.  It is another smoke screen.  It is only a feel-good action that detracts from the truth.

    But misery loves company so we will all celebrate it as “progress”… except for those of us that know better.

    1. you’re missing a key point here – the grand jury system is largely obsolete and rarely used.  what has replaced it is a preliminary hearing system where evidence is put on before a judge, the defense can cross-examine and even put on their own witnesses (though they rarely do so).  your comment seems to have no understanding of this, you just want to make a political point about the liberal media, the aclu.  shouldn’t you have an understanding of the system that is in place before you start throwing rocks?

      1. If is is rarely used, then why the legislation?  Whether they are obsolete or not is just your opinion.  And it one that I don’t share.

        Preliminary hearings create more billable hours for attorneys.

        What do attorneys do?  Generate billable hours.

        And preliminary hearings are open are they not?  The media gets to harvest more sensational news and then activists can go to work trying the case in the court of public opinion.  Grand Jury processes are not open and so the media cries and the activists can only spin conspiracy theories.

        1. Frankly – It’s somewhat surprising to me that you are so in favor of secrecy in government. Grand juries are conducted behind closed doors with only prosecutors present to present whatever evidence they selectively choose with no other attorneys or a judge present, and no opportunity to challenge evidence or cross examine witnesses. In the case of police officers accused of crimes, prosecutors can withhold incriminating evidence or misrepresent evidence without any public scrutiny and without being challenged. Grand juries are anachronistic–dating back, in the U.S., to colonial times when there was open hostility between the colonies and the British government. I would think conservatives would favor more openness and transparency in government. I guess I’m wrong about that.

        2. “If is is rarely used, then why the legislation?  ”

          because it’s used when the prosecutor deems it necessary.

          “Preliminary hearings create more billable hours for attorneys.”

          not really.  most preliminary hearings are defended by public defenders who are on salary and most are very short.

          “What do attorneys do?  Generate billable hours.”

          unless you’re in prior practice, that’s not true.

          “And preliminary hearings are open are they not?  The media gets to harvest more sensational news and then activists can go to work trying the case in the court of public opinion.  Grand Jury processes are not open and so the media cries and the activists can only spin conspiracy theories.”

          and that’s the real reason for your objection – you don’t want transparency.

        3. Frankly – It’s somewhat surprising to me that you are so in favor of secrecy in government.

          Eric – I appreciate this question.  I don’t see juries as being part of government.  They are outside individual citizens.  I think that is how our judicial system is designed… to allow a review by peers.

          I think there is this view by some that the Grand Jury is going to be too sympathetic to cops.  But if you think about your question… if these are just citizens and not employees of the government with a vested interest to protect the government, they should have the same consideration you lay at my feet.  They would not want secrecy or unfairness or cops breaking the law.  They would consider their own self and family.

          Why would I trust an ACLU defense attorney who is likely to have more bias and a big agenda that disregards the truth and pursues that which fills his pockets and ego the most?  I would much rather trust the Grand Jury.

          And I do not buy that the DA will hide or withhold evidence to influence the decision in favor of the cop.  It is much more likely that a DA would push the Grand Jury to vote to indict on a dubious case so the DA could milk the political benefits… think Mike Nifong.  In terms of what I worry about, it is that and not cops getting away with murder.

        4. you don’t want transparency.

          I don’t want more media circus and political fodder for the divide and conquer race-baiting strategy of the left.

        1. but they are primarily using the grand jury to investigate government agencies in yolo county, not to indict criminals.  how many times was the grand jury used to indict a criminal last year or this year in yolo county?  25 to 40 hours a month doesn’t answer that question.

    2. Frankly

      He cannot be out alone for fear of being executed”

      And I agree with you that this is a travesty and a personal tragedy for him. However, I see it in a much bigger context, the overall tolerance of violence as a means of conflict resolution in our society. Many other people find themselves in the same situation. Workers at clinics that provide abortions amongst their other services have faced death threats for decades. We have now added executives of StemExpress to those under what constitute bounties on their head on social media. No one should be living under threat of violence for doing their job in a legal manner. This is a condemnation of the violent nature of our society overall, not just the risks faced by the police.

  7. 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. Additionally, it makes clear that recording does not constitute reasonable suspicion to detain a person or probable cause to arrest. This bill also protects police by ensuring that these provisions do not allow a civilian to obstruct an officer.”

    IMO, this law is superfluous (since all it does it repeat what is already the law), and does absolutely nothing.  It is typical political twaddle that accomplishes little.  What is to stop a cop from declaring that a member of the public taking video was “interfering” with or “obstructing” the police?

    1. actually you are incorrect – it clarifies the state of the law in california which had been fuzzy.

      “What is to stop a cop from declaring that a member of the public taking video was “interfering” with or “obstructing” the police?”

      they would have to defend it in court.

    2. Your point is well taken, but the new statute does give some greater precision in instances where citizens record the actions of police officers. You can record, they can record. The exceptions are rare and still to be fully determined from the police perspective.

      Anecdotally, we’ve heard that police have commanded persons to stop recordings during a police action in a public place. I don’t dispute these stories, they seem plausible “in the heat of the moment.” Such a command to stop recording is unlawful and unenforceable. EXCEPT (example):

      Were you to walk up waving a recorder to an officer conducting an interview with, say, a sexual assault victim, you would be told to back away. And if you persisted, you would go to jail for “obstructing.” And you would be convicted.

      But as long as you don’t interfere, obstruct, or delay a police officer in the performance of his/her duty you can record. If you are stopped for a traffic violation, you can turn on your smart phone (In fact, I urge you to do so). You have no requirement to announce the recording being done. The officer can still perform the duties required, unimpeded. If the officer is unprofessional, complain, and supply the incontrovertible evidence. The officer behavior will change, or the officer will have to seek a new line of work.

    3. The so called “law” does not address copyright laws or the use and ownership of the video. If you sell it, you have to get Releases for the use of it. News agencies are notoriously exempt from this, because the pretend their “entertainment” is generated from the new divisions.

      1. Miwok–yes, I would like to find out more about that aspect of the law. Presumably in most cases a bystanders video could be immediately uploaded onto YOUTUBE or other internet venue; but surely there must be some cases where it cannot?–what about a minor caught in the act of arrest on the streets for a serious crime; and privacy rights of minors? As one example, there must be many more.

  8. Let the video wars begin!

    Given this new legislation re: citizen recordings; I would think that most CA PD’s would want to have their patrol officers outfitted with vest video cameras; to get the cops-vantage-view of interactions with the public–in fact perhaps a police-department drone circling over the cop to take a continuous panoramic view of the cop and his surroundings 360 at all times. Because we know that each and every public bystander would never adjust their frame of view to show only a portion of the action that makes the cops look bad, with bad behavior of a suspect left out of the frame of view; and bystanders would never edit their films to keep (and display on youtube) just those time portions of the incident that show the cop in a bad light; and not those time portions of the incident that show bad behavior on the part of a suspect or other member of the general public.

    So let the video wars begin!

  9. Frankly

    They would not want secrecy or unfairness or cops breaking the law.  They would consider their own self and family.”

    And with these two sentences, you neatly summarize one aspect of the problem. They see the information being presented to them only through the eyes of the prosecutor, and they see that evidence in view of how they want protection for themselves and their family…..not how an individual from another class or ethnicity might see protection and the acts of law enforcement individuals differently.

    Now I do not know the composition of grand juries by demographic, but I would be surprised if they did not lean heavily towards those who are affluent enough to have the time to serve, the knowledge of how to get on a grand jury and the interest  which would likely skew the participation to older, more affluent individuals who may or may not have the same perception of the appropriate actions of law enforcement as do the majority of the population of the area served. To understand that such a skewing of participation  might influence the outcome of their findings, one has to read no further than the comments on this blog.

    I would appreciate it if someone had the time in the near future to provide information on this topic.

     

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