Principal and Founding Member
Rains Lucia Stern St. Phalle & Silver, PC
Assembly Bill 748, introduced by Assembly Member Phil Ting, changes previous law under the California Public Records Act (CPRA) relating to video evidence captured by police officers during investigations and/or detentions of individuals. Governor Jerry Brown signed this bill into law September 30, and it will take effect July 1, 2019.
Prior to the enactment of AB 748, video and audio evidence of any type (i.e., light-bar camera, body camera, taser camera) was exempt from disclosure as an “investigatory record” under the California Public Records Act if the video evidence recorded an officer contacting/detaining anyone to investigate whether a violation of any law had occurred (Haney v. Superior Court (2001) 26 Cal.4th 1061).
Assembly Bill 748 will require a video or audio recording of a “critical incident” to be disclosed within time limits specified in the bill. The law defines a “critical incident” as either a discharge of a firearm by an officer or the use of any type of force that results in death or great bodily injury. The generally accepted definition of “great bodily injury” in California is any “significant or substantial physical injury.” (Penal Code § 12022.7(f)).
The rules concerning the obligation of a public agency to disclose video or audio evidence of a “critical incident” are somewhat murky. It undoubtedly will have to be clarified through future court proceedings, which will occur when an agency refuses to disclose video or audio evidence under the CPRA.
However, at present, the language of AB 748 provides that the public agency’s disclosure obligations are as follows:
1. In the event the agency receives a Public Records Act request relating to an “active criminal or administrative investigation” of an OIS or other use of force causing great bodily injury, the agency may initially delay disclosure of the video/audio under the “active criminal investigation” exemption for a maximum of 45 days.
Thereafter, if the “active criminal and or administrative investigation” continues beyond 45 days following receipt of the CPRA request, the agency may delay disclosure of the audio/video for up to one year if the agency can demonstrate that disclosure would continue to interfere with the active investigation. We expect that this issue will probably be litigated between the person/entity making the CPRA request and the governmental agency in the event that the agency declines to release the audio/video after the initial 45-day period.
AB 748 allows the agency to continue to delay disclosure even after one year. However, if the agency does that, it is required to demonstrate (most likely in a court of law in a writ of mandate proceeding) by “clear and convincing evidence” that disclosure of the audio/video would still “substantially interfere with the investigation.” In addition, if the agency continues to delay disclosure after one year, the agency must provide the requestor an estimated date when it will disclose the audio/video, and the agency is further required to reassess the withholding of the audio/video and notify the requestor every 30 days thereafter.
AB 748 allows the agency to use “redaction technology” (by blurring faces of persons depicted in a video) to “prevent violations of the reasonable expectation of privacy” of the person(s) depicted. This may mean that the agency would be permitted to blur the face of a juvenile, a crime victim, a bystander or a person whose image is captured by a body camera in a hospital (as examples). However, the bill also states that if the “reasonable expectation of privacy” of a person depicted in a video cannot be protected through the use of redaction technology, the agency then can continue to withhold disclosure of the audio/video pursuant to a CPRA request. However, in the event the Agency withholds the audio/video from public disclosure under these circumstances, it will be required to provide a copy of the audio/video to the person depicted in the video and/or his/her legal representative (who may then provide the video to the media).
The concern of this firm about the release of agency-captured video and audio of officer-involved shootings or other substantial uses of force resulting in great bodily injury is the fact that this type of evidence is always graphic and can be quite unsettling to persons unaccustomed to seeing the application of force to subdue or arrest individuals. Public disclosure has the potential to create public hysteria concerning virtually any police use of force and therefore increase political and media pressure on elected and appointed officials to take disciplinary action and/or file criminal charges against the peace officers depicted in these videos.
RLS has been undertaking careful analysis of video evidence of law enforcement actions for over two decades. We will continue to perform the critical analyses that often demonstrate that OISes and other uses of force are lawfully permitted uses of force. It is only through careful and considered analysis of these videos that we can ensure that officers involved in these matters are not subjected to erroneous and inflammatory assertions made by members of the public who have little understanding or appreciation of the rights and obligations of officers to use physical force under the law, and who will likely react to video and/or audio evidence of police use of force on only first impression and emotion.
About the Author
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 35 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
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Thank you for all your help!
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Outstanding service from bottom-to-top.
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Very well informed group.
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Everything went smooth. I think the current system works very well.
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Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
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Highly recommend this program for any LEO!
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[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
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[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Paul Barrolaza Twin Cities POA
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
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I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
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Very satisfied with the service I was given.
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
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[My representative] did a good job representing me. Kept me informed.
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Hope to never in a situation again, however, glad to know that LDF is there to help.
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Carl Miller Clearlake POA
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Micheal Chad Heiser Santa Rosa POA
LDF is a valuable resource that no law enforcement officer should be without.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- William Jackson Santa Maria POA
Keep up the great work.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.