Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data, including prohibiting agency personnel from uploading recorded data onto public and social media internet websites, when establishing policies and procedures for the implementation and operation of a body-worn camera system.

Existing law prohibits a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime, as defined, unless specified circumstances exist. Existing law requires a police department or sheriffs office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime to remove the information from its social media page, upon request, unless the same specified circumstances exist. Existing law also requires a police department or sheriffs office to remove the booking photo of a person who has committed any other crime from social media if the individuals record has been sealed, the individuals conviction has been dismissed, expunged, pardoned, or eradicated, the individual has been issued a certificate of rehabilitation, the individual is found not guilty of committing the crime for which they were arrested, or the individual was ultimately not charged with the crime or the charges were dismissed.

With respect to an individual who has been arrested for any crime, this bill would require a police department or sheriffs office, upon posting a booking photo on social media, to use the name and pronouns given by the individual arrested. The bill would authorize a police department or sheriffs office to use other legal names or known aliases of an individual in limited specified circumstances. This bill would also require that a police department or sheriffs office remove any booking photo shared on social media after 14 days unless specified circumstances exist. Because the bill would impose higher duties on local law enforcement, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data, including prohibiting agency personnel from uploading recorded data onto public and social media internet websites, when establishing policies and procedures for the implementation and operation of a body-worn camera system.

Existing law prohibits a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime, as defined, unless specified circumstances exist. Existing law requires a police department or sheriffs office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime to remove the information from its social media page, upon request, unless the same specified circumstances exist. Existing law also requires a police department or sheriffs office to remove the booking photo of a person who has committed any other crime from social media if the individuals record has been sealed, the individuals conviction has been dismissed, expunged, pardoned, or eradicated, the individual has been issued a certificate of rehabilitation, the individual is found not guilty of committing the crime for which they were arrested, or the individual was ultimately not charged with the crime or the charges were dismissed.

With respect to an individual who has been arrested for any crime, this bill would require a police department or sheriffs office, upon posting a booking photo on social media, to use the name and pronouns given by the individual arrested. The bill would authorize a police department or sheriffs office to use other legal names or known aliases of an individual in limited specified circumstances. This bill would also require that a police department or sheriffs office remove any booking photo shared on social media after 14 days unless specified circumstances exist. Because the bill would impose higher duties on local law enforcement, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data, including prohibiting agency personnel from uploading recorded data onto public and social media internet websites, when establishing policies and procedures for the implementation and operation of a body-worn camera system.

Existing law prohibits a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime, as defined, unless specified circumstances exist. Existing law requires a police department or sheriffs office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime to remove the information from its social media page, upon request, unless the same specified circumstances exist. Existing law also requires a police department or sheriffs office to remove the booking photo of a person who has committed any other crime from social media if the individuals record has been sealed, the individuals conviction has been dismissed, expunged, pardoned, or eradicated, the individual has been issued a certificate of rehabilitation, the individual is found not guilty of committing the crime for which they were arrested, or the individual was ultimately not charged with the crime or the charges were dismissed.

With respect to an individual who has been arrested for any crime, this bill would require a police department or sheriffs office, upon posting a booking photo on social media, to use the name and pronouns given by the individual arrested. The bill would authorize a police department or sheriffs office to use other legal names or known aliases of an individual in limited specified circumstances. This bill would also require that a police department or sheriffs office remove any booking photo shared on social media after 14 days unless specified circumstances exist. Because the bill would impose higher duties on local law enforcement, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data, including prohibiting agency personnel from uploading recorded data onto public and social media internet websites, when establishing policies and procedures for the implementation and operation of a body-worn camera system.

Existing law prohibits a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime, as defined, unless specified circumstances exist. Existing law requires a police department or sheriffs office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime to remove the information from its social media page, upon request, unless the same specified circumstances exist. Existing law also requires a police department or sheriffs office to remove the booking photo of a person who has committed any other crime from social media if the individuals record has been sealed, the individuals conviction has been dismissed, expunged, pardoned, or eradicated, the individual has been issued a certificate of rehabilitation, the individual is found not guilty of committing the crime for which they were arrested, or the individual was ultimately not charged with the crime or the charges were dismissed.

With respect to an individual who has been arrested for any crime, this bill would require a police department or sheriffs office, upon posting a booking photo on social media, to use the name and pronouns given by the individual arrested. The bill would authorize a police department or sheriffs office to use other legal names or known aliases of an individual in limited specified circumstances.

This bill would also require that a police department or sheriffs office remove any booking photo shared on social media after 14 days unless specified circumstances exist. Because the bill would impose higher duties on local law enforcement, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data, including prohibiting agency personnel from uploading recorded data onto public and social media internet websites, when establishing policies and procedures for the implementation and operation of a body-worn camera system.

Existing law prohibits a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime, as defined, unless specified circumstances exist. Existing law requires a police department or sheriffs office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime to remove the information from its social media page, upon request, unless the same specified circumstances exist. Existing law also requires a police department or sheriffs office to remove the booking photo of a person who has committed any other crime from social media if the individuals record has been sealed, the individuals conviction has been dismissed, expunged, pardoned, or eradicated, the individual has been issued a certificate of rehabilitation, the individual is found not guilty of committing the crime for which they were arrested, or the individual was ultimately not charged with the crime or the charges were dismissed.

This bill would prohibit a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing any crime unless specified circumstances exist. This bill would also require a police department or sheriffs office, upon posting a booking photo on social media, to use the name and pronouns given by the individual arrested. The bill would authorize a police department or sheriffs office to use other legal names or known aliases of an individual in limited specified circumstances.

This bill would require that a police department or sheriffs office remove any booking photo shared on social media after 14 days unless specified circumstances exist. Because the bill would impose higher duties on local law enforcement, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data, including prohibiting agency personnel from uploading recorded data onto public and social media internet websites, when establishing policies and procedures for the implementation and operation of a body-worn camera system.

Existing law prohibits a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime, as defined, unless specified circumstances exist. Existing law requires a police department or sheriffs office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime to remove the information from its social media page, upon request, unless the same specified circumstances exist. Existing law also requires a police department or sheriffs office to remove the booking photo of a person who has committed any other crime from social media if the individuals record has been sealed, the individuals conviction has been dismissed, expunged, pardoned, or eradicated, the individual has been issued a certificate of rehabilitation, the individual is found not guilty of committing the crime for which they were arrested, or the individual was ultimately not charged with the crime or the charges were dismissed.

This bill would prohibit a police department or sheriffs office from sharing, on social media, booking photos of an individual arrested on suspicion of committing any crime unless specified circumstances exist. This bill would also require a police department or sheriffs office, upon posting a booking photo on social media, to use the name and pronouns given by the individual arrested.

This bill would require that a police department or sheriffs office remove any booking photo shared on social media after 14 days unless specified circumstances exist. Because the bill would impose higher duties on local law enforcement, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 994

Author:(Jackson)

As Amended Ver:August 16, 2023

Majority vote

SUMMARY

Requires a police department or sheriff's office to remove a booking photo shared on the department's social media page within 14 days unless the subject of the image is a fugitive or an imminent threat to public safety, or continuing to share the image is otherwise justified by a legitimate law enforcement interest.

Senate Amendments

Allow a police department or sheriff's office to use a person's other legal names or known aliases on social media when sharing a booking photo if an exigent circumstance exists that necessitates their use due to an urgent and legitimate law enforcement interest.

COMMENTS

As Passed by the Assembly: This bill required a police department or sheriff's office to remove a booking photo shared on the department's social media page within 14 days unless the subject of the image is a fugitive or an imminent threat to public safety, or continuing to share the image is otherwise justified by a legitimate law enforcement interest.

Major Provisions

1. Required a police department or sheriff's office sharing a booking photo of an individual on social media, to use the name and pronouns given by the individual.
2. Allowed a police department or sheriff's office to include other legal names or known aliases of an individual, if using the names or aliases will assist in locating or apprehending the individual or in reducing or eliminating an imminent threat to an individual or to public safety.
3. Required the removal of a booking photo from the department's social media page within 14 days regardless of the crime, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo.
4. Eliminated the requirement that the individual who is the subject of a social media post, or their representative, request and make a showing, as specified, in order to have their booking photo removed from a police department's or sheriff's department's social media page.

Limitations on Posting Booking Photos: Social media mug shots have been compared to a modern-day scarlet letter. They have been used as a tool for public shaming. They become a public record used by other organizations like newspapers. And they can have long term consequences because they can be revealed much later by an internet search of a person's name. (See e.g. Seidman, Are Social Media Mugshots the New Scarlet Letter?, Sarasota Herald Tribune, https://www.heraldtribune.com/story/news/local/sarasota/2019/10/10/seidman-are-social-media-mugshots-new-scarlet-letter/2566182007/.)

Current law allows a police department or sheriff's office to share booking photos on social media of an individual arrested on suspicion of committing a violent crime. They can also share images of persons arrested on suspicion of committing nonviolent crimes if the person is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual. This bill would prohibit a police department or sheriff's office from sharing booking photos on social media of a person arrested on suspicion of any crime, violent or nonviolent, unless the person is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual.

Current law also requires a police department or sheriff's office that shares a booking photo on its social media page to remove the image within 14 days if the subject of the social media post or their representative requests it and shows that the individual's record has been sealed; the individual's conviction has been dismissed, expunged, pardoned, or eradicated; the individual has been issued a certificate of rehabilitation; the individual was found not guilty of the crime for which they were arrested; or the individual was ultimately not charged with the crime or the charges were dismissed. This bill would require automatic removal of a booking photo on social media within 14 days unless the subject of the booking photo is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual.

Finally, this bill would require a police department or sheriff's office that shares a booking photo on social media to use the name and pronouns given by the subject of the booking photo. However, if the individual is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual, a police department or sheriff's office would be authorized to include other known alias or names used by the subject of the booking photo.

According to the Author

"This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression."

Arguments in Support

According to Oakland Privacy, "Assembly Bill 994 builds upon and expands protections already enacted by the Legislature in 2022 in AB 1475, which passed the Assembly floor 74-0, and the Senate floor 39-0.

"Assemblymember Low's legislation was brought about by several municipal scandals, when law enforcement agencies chose to post mugshots to their social media accounts of individuals who had been charged with crimes, but not convicted. These mugshots ended up shared many, many times and caused reputational damage despite charges that were later dropped. Because of the nature of social media, the images remained in circulation long after the events transpired. Such pictures floating around can have downstream consequences for the people posted when seeking employment and housing for years to come, which is especially egregious when the mugshot is related to First Amendment protected activity and/or when charges are later dismissed.

"The events that transpired in Berkeley, California are a particularly instructive example and one which received national attention. In August of 2018, 'free speech protests' came to the university town and protesters and counterprotesters squared off in the city's Civic Center Park. The counterprotesters were characterized by the Berkeley Police Department as 'anti-fa' or antifascistic protesters who believed they were responding to a white-supremacist oriented attack on the city which has been famously liberal over the years in its politics. After some street scuffles, a number of counterprotesters were hit with charges that were never actually pursued and had their arrest images posted on the Berkeley Police Department's Twitter account. Police department emails later secured by Berkeley Copwatch and the Lucy Parsons Lab in Chicago showed that the stated intent of the postings was to create a 'counter narrative'. The emails further revealed that the police department had internally celebrated the number of retweets the postings had received. Arrest photos of 20 people were retweeted more than 8,000 times.

"The department policy of posting mugshots to their Twitter account was restricted to events characterized as protests. While at the time of arrest, charges such as weapons and assault were offered up, it was later revealed that the weapons in question were scarves, bandanas and protest signs and that no significant injuries had taken place. Charges were either never filed or dismissed against all 20 people who had their arrest photos immortalized on Twitter. After a national outcry4, the local City Council moved to end the policy and AB 1475 followed.

"Assembly Bill 994 strengthens the work done in AB 1475 in three specific ways.

"Firstly, it erases the distinction between being charged with a nonviolent crime and being charged with a violent crime for the purposes of the protections offered in the bill. This is a correct identification that initial charges in first amendment-related events are often overstated and can be punitive in nature and in many cases are rapidly dropped or dismissed. The bill removes an incentive for overcharging in order to retain the ability to post a mugshot. AB 994 correctly links the available exemption to what matters: whether or not there is a clear public interest in posting the mugshot due to an imminent threat to the public that could be alleviated by posting the mugshot. There is no other public interest in posting a mugshot on social media.

"Secondly, AB 994 states that if it is found necessary to post a mugshot on social media, it is the responsibility of the posting entity to use the correct pronouns for the individual and not to deadname them.

"This is an important protection for people in transition, who may have different levels of openness in different sectors of their lives about their gender assignment at birth and avoids unanticipated collateral damage from a posted mugshot that can endure long beyond the particular arrest in question.

"Thirdly, AB 994 restricts the posting period to a maximum of 14 days and removes the impetus for removal from the individual whose mugshot was posted. Under AB 994, people whose mugshots were posted do not have the burden of specifically requesting a takedown. Instead, it happens by default after a maximum of 14 days."

Arguments in Opposition

According to the California Law Enforcement Association of Records Supervisors (CLEARS), "The law being amended by this bill was only created in 2021 and didn't take effect until last year. AB 994 seeks a significant expansion of a law that was negotiated to address many of the concerns that were raised during the debate. This bill rejects the limitation that was included in current law to keep the bill's reach to nonviolent crimes. The ability to post booking photos, while being restricted, left the door open for government to balance privacy considerations and the interest in communicating with the public about those who are accused of committing serious and violent crimes. AB 994 would prevent the posting of booking photos of a person arrested for a violent crime unless very specific and limited conditions exist."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, no state costs. To the extent law enforcement agencies (LEAs) incur costs complying with this bill, General Fund costs would depend on whether the Commission on State Mandates determines that the duties imposed by this bill constitute a reimbursable state mandate.

VOTES:

ASM PUBLIC SAFETY: 5-2-1

YES: Jones-Sawyer, Bryan, Ortega, Santiago, Zbur

NO: Alanis, Lackey

ABS, ABST OR NV: Bonta

ASM PRIVACY AND CONSUMER PROTECTION: 8-3-0

YES: Gabriel, Bauer-Kahan, Bennett, Irwin, Lowenthal, Papan, Wicks, Wilson

NO: Joe Patterson, Essayli, Vince Fong

ASM APPROPRIATIONS: 12-3-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Weber, Wilson

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis

ASSEMBLY FLOOR: 48-17-15

YES: Addis, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Papan, Pellerin, Reyes, Luz Rivas, Robert Rivas, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Aguiar-Curry, Bains, Cervantes, Irwin, Mathis, Muratsuchi, Pacheco, Petrie-Norris, Quirk-Silva, Ramos, Rodriguez, Blanca Rubio, Soria, Valencia, Villapudua

SENATE FLOOR: 26-11-3

YES: Allen, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Newman, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Archuleta, Dahle, Grove, Hurtado, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Dodd, Min, Padilla

UPDATED

VERSION: August 16, 2023

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0001778

 THIRD READING  

Bill No: AB 994

Author: Jackson (D), et al.

Amended: 8/16/23 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 6/20/23

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Ochoa Bogh

SENATE JUDICIARY COMMITTEE: 7-2, 7/6/23

AYES: Umberg, Allen, Ashby, Durazo, Laird, Stern, Wiener

NOES: Wilk, Niello

NO VOTE RECORDED: Caballero, Min

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 48-17, 5/25/23 - See last page for vote

SUBJECT: Law enforcement: social media

SOURCE: Author

DIGEST:

This bill requires a police department or sheriff’s office to remove a booking photo shared on the department’s social media page within 14 days unless specific circumstances exist, and requires a police department or sheriff’s office sharing a booking photo on social media to use the name and pronouns given by the subject of that photo.

Senate Floor Amendments of 8/16/23 clarify when law enforcement may include other legal names or known aliases of an arrestee in the context of posting mugshots on social media.

ANALYSIS:

Existing law:

1. Defines “booking photograph” to mean “a photograph of a subject individual taken pursuant to an arrest or other involvement in the criminal justice system.” (Civ. Code, § 1798.91.1, subd. (a)(1).)
2. Defines “subject individual” to mean “an individual who was arrested.” (Civ. Code, § 1798.91.1, subd. (a)(2).)
3. Provides that it shall be an unlawful practice for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. (Civ. Code, § 1798.91.1, subd. (b).)
4. Permits a public entity to require and accept a reasonable administrative fee to correct a booking photograph. (Civ. Code, § 1798.91.1, subd. (c).)
5. States that each payment solicited or accepted in violation of these provisions constitutes a separate violation, and permits a subject individual to bring a civil action for damages and attorney’s fees, and any other legal or equitable relief. (Civ. Code, § 1798.91.1, subd. (d)-(e).)
6. Prohibits a police department or sheriff’s office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime unless any of the following circumstances exist:
   1. A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat;
   2. A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest; or,
   3. There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest. (Pen. Code, § 13665, subd. (a)(1)-(3).)
7. Provides that a police department or sheriff’s office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime shall remove the booking photo from its social media page within 14 days, upon the request of the individual who is the subject of the social media post or the individual’s representative, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo, as specified. (Pen. Code, § 13665, subd. (b)(1).)
8. Requires a police department or sheriff’s office that shares a booking photo on social media of an individual arrested a violent felony, as specified, to remove the booking photo from its social media page within 14 days upon the request of the arrestee or their representative, if the individual or their representative demonstrates any of the following:
   1. The individual’s record has been sealed;
   2. The individual’s conviction has been dismissed, expunged, pardoned, or eradicated, as specified;
   3. The individual has been issued a certificate of rehabilitation;
   4. The individual was found not guilty of the crime for which they were arrested; or,
   5. The individual was ultimately not charged with the crime, or the charges were dismissed. (Pen. Code, § 13665, subd. (b)(2)(A)-(E).)
9. Defines, for the purpose of the provisions above, “nonviolent crime” as a crime not that is not included in Penal Code Section 667.5 as a “violent felony.”
10. Defines “social media” as an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. (Pen. Code §§ 13665, subd. (c)(2) &632.01, subd. (a)(1).)
11. Specifies that “social media” does not include an internet website or an electronic data system developed and administered by the police department or sheriff’s office. (Pen. Code § 13665, subd. (c)(2).)

This bill:

1. Requires a police department or sheriff's office sharing a booking photo of an individual on social media, to use the name and pronouns given by the individual.
2. Authorizes a police department or sheriff's office to include other legal names or known aliases of an individual, if using the names or aliases will assist in locating or apprehending the individual or in reducing or eliminating an imminent threat to an individual or to public safety or an exigent circumstance exists that necessitates the use of other legal names or known aliases of an individual due to an urgent and legitimate law enforcement interest.
3. Requires the removal of a booking photo from the department's social media page within 14 days regardless of the crime, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo.
4. Applies the above provisions retroactively to any booking photo shared on social media.
5. Eliminates the requirement that the individual who is the subject of a social media post, or their representative, request and make a showing, as specified, in order to have their booking photo removed from a police department's or sheriff's department's social media page.

Comments

According to the author, “This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression.”

Law enforcement generally captures a mugshot after an arrest at the time of booking, a practice that was historically intended to provide a photographic record of an arrested individual by victims, investigators and the public. However, since their introduction, the use of booking photos in various contexts has been increasingly recognized as prejudicial. The United States Court of Appeals for the District of Columbia has held that “the double-shot picture, with front and profile shots alongside each other, is so familiar, from 'wanted' posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic.” The release of a mugshot on a law enforcement social media account – a practice that has become more widespread in recent years – tells not only the community, but any user of the internet that a particular individual was arrested for an offense. Given the stigma associated with mugshots, these postings have the practical effect of giving the impression that the person portrayed in fact committed the crime for which they were arrested.

Existing law, enacted by AB 1475 (Low, Chapter 126, Statutes of 2021), prohibits a police department or sheriff’s office from sharing booking photos on social media of an individual arrested for a nonviolent offense unless (1) the arrestee is a fugitive or poses an imminent threat to public safety, (2) the dissemination of the image is due to a judicial order, or (3) there is an exigent circumstance that necessitates the release of the image in furtherance of an urgent and legitimate law enforcement interest. However, existing law also requires law enforcement agencies to remove posted booking shots of individuals arrested for a nonviolent offense within 14 days of a request from the individual or their representative, unless one of the above conditions is true. For individuals arrested for violent crimes, law enforcement may post booking photos on social media, but must remove them within 14 days if the individual or their representative demonstrates that the arrestee’s record has been sealed, the conviction has been dismissed or expunged, they have received a certificate of rehabilitation, or they were found not guilty of the crime or the charges were dismissed.

This bill builds upon the reforms of AB 1475 in two distinct ways. First, with respect to booking photos posted on social media of an individual arrested for any crime, this bill requires that the law enforcement agency use the name and pronouns given by the individual. The agency may include other legal names or known aliases of an individual if using the names or aliases will assist in locating or apprehending the individual or addressing an imminent threat to public safety. Using the name and pronouns provided by an arrestee constitutes an important step toward affirming the true racial and gender identities, and preventing “deadnaming,” or referring to a transgender or non-binary person by a name they used prior to transitioning. However, given that this bill mandates the use of any name provided by the arrestee, and allows the use of other aliases only if certain factors are present, this provision may lead to strange situations where, in the absence of those factors, a law enforcement agency is required to post only vulgarities or names they know to be false on social media when posting a mugshot. This may have the ultimate result of deterring the posting of mugshots altogether, even when doing so may serve a legitimate law enforcement interest, such as asking additional potential victims to come forward to assist with a prosecution.

Another provision of this bill requires law enforcement to remove any booking photo from its social media page – regardless of whether the individual or their representative has requested the removal – within 14 days of the photo being posted. However, the agency may keep the photo posted if (1) the arrestee is a fugitive or poses an imminent threat to public safety, (2) the dissemination of the image is due to a judicial order, or (3) there is an exigent circumstance that necessitates the release of the image in furtherance of an urgent and legitimate law enforcement interest.

In recent years, the Legislature has taken steps to curb the invasive use and commercial exploitation of booking photos. In 2014, the Legislature passed SB 1027 (Hill, Chapter 194, Statutes of 2014), which prohibited a person from publishing or otherwise disseminating a booking photograph to solicit payment of a fee or other consideration from a subject to remove, correct, modify, or to refrain from publishing or otherwise disseminating the photo. In 2017, this Legislature also passed AB 1008 (McCarty, Chapter 789, Statute of 2017), a so-called “ban the box” law, which prohibited an employer from inquiring about an applicant’s conviction history, and from considering, distributing, or disseminating information about arrests not followed by conviction, referral to or participation in pre- or post-trial diversion programs. Most recently, the Legislature passed AB 1475, which prohibited law enforcement agencies from sharing booking photos on social media of individuals arrested for non-violent offenses, except under specific circumstances.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/14/23)

ACLU California Action

California Public Defender Association

Equality California

Oakland Privacy

Prosecutors Alliance California

Sister Warriors Freedom Coalition

OPPOSITION: (Verified 8/14/23)

Arcadia Police Officers’ Association

Burbank Police Officers’ Association

California Law Enforcement Association of Records Supervisors

California Reserve Peace Officers Association

California State Sheriffs Association

Claremont Police Officers Association

Corona Police Officers Association

Culver City Police Officers’ Association

Deputy Sheriffs’ Association of Monterey County

Fullerton Police Officers’ Association

Murrieta Police Officers’ Association

Newport Beach Police Association

Novato Police Officers Association

Palos Verdes Police Officers Association

Placer County Deputy Sheriffs’ Association

Pomona Police Officers’ Association

Riverside Police Officers Association

Riverside Sheriffs’ Association

Santa Ana Police Officers Association

Upland Police Officers Association

ASSEMBLY FLOOR: 48-17, 5/25/23

AYES: Addis, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Papan, Pellerin, Reyes, Luz Rivas, Robert Rivas, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Aguiar-Curry, Bains, Cervantes, Irwin, Mathis, Muratsuchi, Pacheco, Petrie-Norris, Quirk-Silva, Ramos, Rodriguez, Blanca Rubio, Soria, Valencia, Villapudua

Prepared by: Alex Barnett / PUB. S. /

8/18/23 11:45:09

**** END ****

 THIRD READING  

Bill No: AB 994

Author: Jackson (D), et al.

Amended: 5/2/23 in Assembly

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 6/20/23

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Ochoa Bogh

SENATE JUDICIARY COMMITTEE: 7-2, 7/6/23

AYES: Umberg, Allen, Ashby, Durazo, Laird, Stern, Wiener

NOES: Wilk, Niello

NO VOTE RECORDED: Caballero, Min

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 48-17, 5/25/23 - See last page for vote

SUBJECT: Law enforcement: social media

SOURCE: Author

DIGEST:

This bill requires a police department or sheriff’s office to remove a booking photo shared on the department’s social media page within 14 days unless specific circumstances exist, and requires a police department or sheriff’s office sharing a booking photo on social media to use the name and pronouns given by the subject of that photo.

ANALYSIS:

Existing law:

1. Defines “booking photograph” to mean “a photograph of a subject individual taken pursuant to an arrest or other involvement in the criminal justice system.” (Civ. Code, § 1798.91.1, subd. (a)(1).)
2. Defines “subject individual” to mean “an individual who was arrested.” (Civ. Code, § 1798.91.1, subd. (a)(2).)
3. Provides that it shall be an unlawful practice for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. (Civ. Code, § 1798.91.1, subd. (b).)
4. Permits a public entity to require and accept a reasonable administrative fee to correct a booking photograph. (Civ. Code, § 1798.91.1, subd. (c).)
5. States that each payment solicited or accepted in violation of these provisions constitutes a separate violation, and permits a subject individual to bring a civil action for damages and attorney’s fees, and any other legal or equitable relief. (Civ. Code, § 1798.91.1, subd. (d)-(e).)
6. Prohibits a police department or sheriff’s office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime unless any of the following circumstances exist:
   1. A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat;
   2. A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest; or,
   3. There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest. (Pen. Code, § 13665, subd. (a)(1)-(3).)
7. Provides that a police department or sheriff’s office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime shall remove the booking photo from its social media page within 14 days, upon the request of the individual who is the subject of the social media post or the individual’s representative, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo, as specified. (Pen. Code, § 13665, subd. (b)(1).)
8. Requires a police department or sheriff’s office that shares a booking photo on social media of an individual arrested a violent felony, as specified, to remove the booking photo from its social media page within 14 days upon the request of the arrestee or their representative, if the individual or their representative demonstrates any of the following:
   1. The individual’s record has been sealed;
   2. The individual’s conviction has been dismissed, expunged, pardoned, or eradicated, as specified;
   3. The individual has been issued a certificate of rehabilitation;
   4. The individual was found not guilty of the crime for which they were arrested; or,
   5. The individual was ultimately not charged with the crime, or the charges were dismissed. (Pen. Code, § 13665, subd. (b)(2)(A)-(E).)
9. Defines, for the purpose of the provisions above, “nonviolent crime” as a crime not that is not included in Penal Code Section 667.5 as a “violent felony.”
10. Defines “social media” as an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. (Pen. Code §§ 13665, subd. (c)(2) &632.01, subd. (a)(1).)
11. Specifies that “social media” does not include an internet website or an electronic data system developed and administered by the police department or sheriff’s office. (Pen. Code § 13665, subd. (c)(2).)

This bill:

1. Requires a police department or sheriff's office sharing a booking photo of an individual on social media, to use the name and pronouns given by the individual.
2. Authorizes a police department or sheriff's office to include other legal names or known aliases of an individual, if using the names or aliases will assist in locating or apprehending the individual or in reducing or eliminating an imminent threat to an individual or to public safety.
3. Requires the removal of a booking photo from the department's social media page within 14 days regardless of the crime, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo.
4. Applies the above provisions retroactively to any booking photo shared on social media.
5. Eliminates the requirement that the individual who is the subject of a social media post, or their representative, request and make a showing, as specified, in order to have their booking photo removed from a police department's or sheriff's department's social media page.

Comments

According to the author, “This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression.”

Law enforcement generally captures a mugshot after an arrest at the time of booking, a practice that was historically intended to provide a photographic record of an arrested individual by victims, investigators and the public. However, since their introduction, the use of booking photos in various contexts has been increasingly recognized as prejudicial. The United States Court of Appeals for the District of Columbia has held that “the double-shot picture, with front and profile shots alongside each other, is so familiar, from 'wanted' posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic.” The release of a mugshot on a law enforcement social media account – a practice that has become more widespread in recent years – tells not only the community, but any user of the internet that a particular individual was arrested for an offense. Given the stigma associated with mugshots, these postings have the practical effect of giving the impression that the person portrayed in fact committed the crime for which they were arrested.

Existing law, enacted by AB 1475 (Low, Chapter 126, Statutes of 2021), prohibits a police department or sheriff’s office from sharing booking photos on social media of an individual arrested for a nonviolent offense unless (1) the arrestee is a fugitive or poses an imminent threat to public safety, (2) the dissemination of the image is due to a judicial order, or (3) there is an exigent circumstance that necessitates the release of the image in furtherance of an urgent and legitimate law enforcement interest. However, existing law also requires law enforcement agencies to remove posted booking shots of individuals arrested for a nonviolent offense within 14 days of a request from the individual or their representative, unless one of the above conditions is true. For individuals arrested for violent crimes, law enforcement may post booking photos on social media, but must remove them within 14 days if the individual or their representative demonstrates that the arrestee’s record has been sealed, the conviction has been dismissed or expunged, they have received a certificate of rehabilitation, or they were found not guilty of the crime or the charges were dismissed.

This bill builds upon the reforms of AB 1475 in two distinct ways. First, with respect to booking photos posted on social media of an individual arrested for any crime, the bill requires that the law enforcement agency use the name and pronouns given by the individual. The agency may include other legal names or known aliases of an individual if using the names or aliases will assist in locating or apprehending the individual or addressing an imminent threat to public safety. Using the name and pronouns provided by an arrestee constitutes an important step toward affirming the true racial and gender identities, and preventing “deadnaming,” or referring to a transgender or non-binary person by a name they used prior to transitioning. However, given that this bill mandates the use of any name provided by the arrestee, and allows the use of other aliases only if certain factors are present, this provision may lead to strange situations where, in the absence of those factors, a law enforcement agency is required to post only vulgarities or names they know to be false on social media when posting a mugshot. This may have the ultimate result of deterring the posting of mugshots altogether, even when doing so may serve a legitimate law enforcement interest, such as asking additional potential victims to come forward to assist with a prosecution.

Another provision of this bill requires law enforcement to remove any booking photo from its social media page – regardless of whether the individual or their representative has requested the removal – within 14 days of the photo being posted. However, the agency may keep the photo posted if (1) the arrestee is a fugitive or poses an imminent threat to public safety, (2) the dissemination of the image is due to a judicial order, or (3) there is an exigent circumstance that necessitates the release of the image in furtherance of an urgent and legitimate law enforcement interest.

In recent years, the Legislature has taken steps to curb the invasive use and commercial exploitation of booking photos. In 2014, the Legislature passed SB 1027 (Hill, Chapter 194, Statutes of 2014), which prohibited a person from publishing or otherwise disseminating a booking photograph to solicit payment of a fee or other consideration from a subject to remove, correct, modify, or to refrain from publishing or otherwise disseminating the photo. In 2017, this Legislature also passed AB 1008 (McCarty, Chapter 789, Statute of 2017), a so-called “ban the box” law, which prohibited an employer from inquiring about an applicant’s conviction history, and from considering, distributing, or disseminating information about arrests not followed by conviction, referral to or participation in pre- or post-trial diversion programs. Most recently, the Legislature passed AB 1475 (Low, 2021), which prohibited law enforcement agencies from sharing booking photos on social media of individuals arrested for non-violent offenses, except under specific circumstances.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/14/23)

ACLU California Action

California Public Defender Association

Equality California

Oakland Privacy

Prosecutors Alliance California

Sister Warriors Freedom Coalition

OPPOSITION: (Verified 8/14/23)

Arcadia Police Officers’ Association

Burbank Police Officers’ Association

California Law Enforcement Association of Records Supervisors

California Reserve Peace Officers Association

California State Sheriffs Association

Claremont Police Officers Association

Corona Police Officers Association

Culver City Police Officers’ Association

Deputy Sheriffs’ Association of Monterey County

Fullerton Police Officers’ Association

Murrieta Police Officers’ Association

Newport Beach Police Association

Novato Police Officers Association

Palos Verdes Police Officers Association

Placer County Deputy Sheriffs’ Association

Pomona Police Officers’ Association

Riverside Police Officers Association

Riverside Sheriffs’ Association

Santa Ana Police Officers Association

Upland Police Officers Association

ASSEMBLY FLOOR: 48-17, 5/25/23

AYES: Addis, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Papan, Pellerin, Reyes, Luz Rivas, Robert Rivas, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Aguiar-Curry, Bains, Cervantes, Irwin, Mathis, Muratsuchi, Pacheco, Petrie-Norris, Quirk-Silva, Ramos, Rodriguez, Blanca Rubio, Soria, Valencia, Villapudua

Prepared by: Alex Barnett / PUB. S. /

8/16/23 14:04:42

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 994 (Author:Jackson)

Version: May 2, 2023

Hearing Date: July 6, 2023

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Law enforcement: social media

DIGEST

This bill requires booking photos posted on social media to be taken down within 14 days, except as provided. It requires law enforcement to use the name and pronouns given by an individual, as specified.

EXECUTIVE SUMMARY

Society has reached a near universal embrace of some form of social media, individuals from all generations, companies from big to small, and certainly plenty of elected officials, for better or worse. In addition, public agencies have increasingly used social media to connect with the communities they serve; even the CIA has a Twitter account. This includes law enforcement departments across the country.

Just as with any other users, police departments and sheriff’s offices can use accounts to build trust and familiarity with their communities. However, a troubling trend has arisen in which law enforcement departments have utilized their social media accounts to shame suspects by posting an individual’s mugshots and other information online.

To address these concerns, AB 1475 (Low, Ch. 126, Stats. 2021) was passed prohibiting police departments and sheriff’s offices (collectively “law enforcement”) from sharing booking photos of an individual arrested on suspicion of committing a nonviolent crime unless certain circumstances exist, such as where the individual is a fugitive and the posting will assist in apprehension. It also provided individuals the ability to request the removal of their booking photos for arrests for both nonviolent and violent crimes, under certain circumstances. This bill goes further and requires all booking photos to be taken down within 14 days unless certain circumstances exist. It also requires law enforcement to use the name and pronouns given by the individual, but allows law enforcement to include other legal names or aliases, as provided.

This bill is author-sponsored. It is supported by various advocacy and civil liberties groups, including Equality California and the Prosecutors Alliance of California. It is opposed by a coalition of law enforcement associations, including the Newport Beach Police Association. This bill passed out of the Senate Public Safety Committee on a 4 to 1 vote.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Prohibits a police department or sheriff’s office (law enforcement) from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime unless any of the following circumstances exist:
   1. A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat.
   2. A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest.
   3. There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest. (Pen. Code § 13665(a).)
2. Requires law enforcement, after sharing such a photo of a person suspected of a nonviolent crime, to remove the booking photo from its social media page within 14 days, upon the request of the individual who is the subject of the post or their representative, unless the above circumstances continue to exist. (Pen. Code § 13665(b)(1).)
3. Requires law enforcement that share, on social media, a booking photo of an individual arrested for the suspected commission of a crime identified in subdivision (c) of Section 667.5 of the Penal Code to remove the booking photo within 14 days, upon the request of the individual or their representative, if the individual or representative demonstrates any of the following:
   1. The individual’s record has been sealed.
   2. The individual’s conviction has been dismissed, expunged, pardoned, or eradicated pursuant to law.
   3. The individual has been issued a certificate of rehabilitation.
   4. The individual was found not guilty of the crime for which they were arrested.
   5. The individual was ultimately not charged with the crime or the charges were dismissed. (Pen. Code § 13665(b)(2).)
4. Defines “nonviolent crime” as a crime not identified in subdivision (c) of Section 667.5. (Pen. Code § 13665(c).)
5. Defines “violent felony” to include all of the following: murder or voluntary manslaughter; mayhem; rape; sodomy, as defined; oral copulation, as defined; lewd or lascivious act, as defined; any felony punishable by death or imprisonment in the state prison for life; any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, as specified, or any felony in which the defendant uses a firearm, as specified; any robbery; arson; sexual penetration, as defined; attempted murder; kidnapping; assault with the intent to commit a specified felony; continuous sexual abuse of a child; carjacking; extortion; threats to victims or witnesses, as specified; any burglary of the first degree; and the use of explosives that causes bodily injury or death, or with the intent to commit murder. (Pen. Code § 667.5(c).)
6. Provides that it shall be an unlawful practice for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. Each payment solicited or accepted in violation constitutes a separate violation, and permits a subject individual to bring a civil action for damages and attorney’s fees, and any other legal or equitable relief. (Civ. Code § 1798.91.1.)
7. Permits a public entity to require and accept a reasonable administrative fee to correct a booking photograph. (Civ. Code § 1798.91.1(c).)
8. Provides pursuant to the California Public Records Act that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt. (Gov. Code § 6250 et seq.)
9. Defines “booking photograph” to mean “a photograph of a subject individual taken pursuant to an arrest or other involvement in the criminal justice system.” (Civ. Code § 1798.91.1(a)(1).)

This bill:

1. Requires booking photos posted on social media to be taken down within 14 days unless a circumstance laid out in Penal Code § 13665(a) exists.
2. Requires law enforcement to use the name and pronouns given by the individual when posting a booking photo on social media. However, law enforcement is permitted to include other legal names or known aliases of an individual if using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety.

COMMENTS

1. Protecting the privacy of those arrested

In 2014, the Legislature responded to a disturbing practice whereby companies would scrape various websites and other sources for mugshots and arrest information and then post it online. These companies would then coerce the depicted individuals to pay to have them removed to avoid the public humiliation. SB 1027 (Hill, Ch. 194, Stats. 2014) was enacted, which prohibits a person who publishes a booking photograph from soliciting, requiring, or accepting a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that photograph, as specified. An aggrieved individual is authorized to bring a civil action to recover the greater of actual damages or a $1,000 penalty for each violation, as specified.

As discussed above, law enforcement has been increasingly using social media to post mugshots in a way that also shames or humiliates individuals without a positive public purpose. However, there is little recourse for individuals and no way to legally have the photos removed. One media report described the issue:

Police departments are increasingly using Facebook to inform the community about what they’re doing and who they’re arresting. Some add a little humor to the mix. But civil rights advocates say posting mugshots and written, pejorative descriptions of suspects amounts to public shaming of people who have not yet been convicted. . . .

Police have traditionally made mugshots and details on suspects available to journalists for publication. But journalists, for the most part, selectively choose to write stories and use mugshots based on the severity or unusual nature of the crime. Many crimes don’t get any coverage. . . .

Jaleel Bussey, 24, of Philadelphia, said he nearly got kicked out of a cosmetology school when instructors saw his mugshot on Facebook. Bussey was charged in 2016 after drugs were found during a police search of a house he was visiting to style a client’s hair. Most of the charges were dismissed before trial; he was acquitted of the final charge, according to the Philadelphia public defender’s office.

Bussey said he was allowed to continue school after explaining that he did not have any drugs and that the charges had been dropped. He felt humiliated, he said, when his family and teachers saw his mugshot.^[1]

Some jurisdictions have made the decision to curtail the practice, such as the San Francisco Police Department, whose police chief described it as “a groundbreaking attempt to curb implicit bias in policing.”^[2]

The Legislature acted in 2021 with the passage of AB 1475, creating Section 13665 of the Penal Code. That law provided protections for individuals based on whether they were alleged to have committed a nonviolent crime or a violent felony, as defined.

Section 13665 outright prohibits the posting of a booking photo of an individual arrested on suspicion of committing a nonviolent felony, except under these limited circumstances:

• The suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the image will assist in locating or apprehending the suspect or reducing or eliminating the threat.
• A judge orders it based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest.
• There is an exigent circumstance that necessitates it in furtherance of an urgent and legitimate law enforcement interest.

Section 13665 also provides individuals a path to remove booking photos that have already been posted. Law enforcement that share booking photos on social media of individuals suspected of committing nonviolent crimes must remove them upon request of the individual, unless the above circumstances continue to exist.

Separately, for mugshots of individuals arrested on suspicion of committing violent crimes, law enforcement must take down the photo upon request if the individual or their representative can demonstrate any of the following:

• The individual’s record has been sealed.
• The individual’s conviction has been dismissed, expunged, pardoned, or eradicated pursuant to law.
• The individual has been issued a certificate of rehabilitation.
• The individual was found not guilty of the crime, the charges were dismissed, or charges were never brought.

This ensures that individuals have some control over images that when posted and remain public can amount to serious collateral consequences for them, even when they have committed no crime. But for those that have and are seeking to move forward, and possibly reenter society after incarceration, the publishing of these photos can be a major barrier to employment, housing, and other crucial steps for reentry.

1. Bolstering Section 13665

According to the author:

This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression.

This bill bolsters the protections of Section 13665 by requiring booking photos to be taken down by default within 14 days without requiring the individual depicted to take action. Law enforcement are authorized to maintain the postings where the above exigent circumstances and legitimate law enforcement interests exist.

Other concerns have arisen in connection with the purported practice whereby law enforcement publicly out transgender men and women and non-binary people on the internet by using their former name and the wrong pronouns. This bill is intended to address that by requiring that when law enforcement agencies post booking photos online, they use the preferred name and pronouns of the person in the picture. To ensure this does not interfere with legitimate law enforcement interests, the bill allows law enforcement to include other legal names or known aliases of an individual if using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety.

1. Stakeholder positions

Writing in support, the Prosecutors Alliance of California explains the need for the bill:

The presumption of innocence is a fundamental pillar of American jurisprudence. This principle notwithstanding, California law currently permits police departments to engage in the public shaming of presumptively innocent people arrested for an offense by publicly posting their booking photo and name on social media−even when no crime is charged. (Pen. Code § 13665.) The damage done by these posts can be incalculable – leaving people unable to find work or housing long after they have concluded their cases, and forever harming those who were wrongfully arrested.

In addition, some law enforcement have intentionally posted booking photos to social media with the incorrect gender pronouns and name of the arrested person. This conduct is deeply harmful not just to the individual but to the entire LGBTQI community.

Equality California writes in support:

[L]aw enforcement has a long history of deadnaming and misgendering transgender and non-binary individuals. Not only can this strain relationships with family and friends, but it can also contribute to adverse mental health outcomes and even violence – especially with the exponential increase in anti-LGBTQ+ and anti-trans rhetoric over the past several years. AB 994 will help to protect the safety and privacy of transgender and non-binary Californians, while at the same time ensuring other legal names or known aliases can be used if necessary to assist in locating an individual or eliminating an imminent threat to public safety.

Writing in opposition, a coalition of law enforcement associations, including the Novato Police Officer’s Association, argue:

AB 994 requires law enforcement agencies that post booking photos of persons arrested for violent crimes to use only the name the arrestees provide - regardless of their legal name. AB 994 is truly mindboggling in that it mandates sworn law enforcement officers provide knowingly false information to the public.

The bill goes even further by prohibiting the release of an “also known as” or aka, including the arrestee’s real name, unless the person is a fugitive or imminent threat to public safety. If an arrestee prefers to be called “Gavin Newsom” or even “Mickey Mouse,” the law enforcement agency would be mandated under AB 994 to publish only that name in conjunction with the booking photo,

The author has asserted that AB 994 is needed to prevent law enforcement from deadnaming transgender persons via the posting of booking photos on their social media pages. We are sympathetic to this concern and remain willing to work to find a workable solution to that issue - but this bill is not the answer.

SUPPORT

ACLU California Action

California Civil Liberties Advocacy

Equality California

Prosecutors Alliance California

Sister Warriors Freedom Coalition

OPPOSITION

Arcadia Police Officers’ Association

Burbank Police Officers’ Association

California Law Enforcement Association of Records Supervisors

California Reserve Peace Officers Association

California State Sheriffs’ Association

Claremont Police Officers Association

Corona Police Officers Association

Culver City Police Officers’ Association

Deputy Sheriffs’ Association of Monterey County

Fullerton Police Officers’ Association

Murrieta Police Officers’ Association

Newport Beach Police Association

Novato Police Officers Association

Palos Verdes Police Officers Association

Placer County Deputy Sheriffs’ Association

Pomona Police Officers’ Association

Riverside Police Officers Association

Riverside Sheriffs’ Association

Santa Ana Police Officers Association

Upland Police Officers Association

RELATED LEGISLATION

Pending Legislation: AB 760 (Wilson, 2023) requires the Trustees of the California State University to implement a system for allowing students, staff, and faculty to declare an affirmed name and gender to be used in their records and other documents, as provided. It requests the same of the Regents of the University of California. AB 760 is currently in the Senate Appropriations Committee.

Prior Legislation:

AB 1475 (Low, Ch. 126, Stats. 2023) See Executive Summary & Comment 1.

SB 1027 (Hill, Ch. 194, Stats. 2014) See Comment 1.

PRIOR VOTES:

Senate Public Safety Committee (Ayes 4, Noes 1)

Assembly Floor (Ayes 48, Noes 17)

Assembly Appropriations Committee (Ayes 12, Noes 3)

Assembly Privacy and Consumer Protection Committee (Ayes 8, Noes 3)

Assembly Public Safety Committee (Ayes 5, Noes 2)

**************

1. Denise Lavoie, Should police be allowed to shame suspects on Facebook? (July 14, 2017) AP News, https://apnews.com/article/police-us-news-ap-top-news-north-america-boston-ca79ccc2adfe41679e72e91b9e910915. All internet citations are current as of June 22, 2023. ↑

2. Alejandro Serrano & Bob Egelko, San Francisco police to stop releasing suspect mug shots in effort to prevent racial bias (July 1, 2020) San Francisco Chronicle, https://www.sfchronicle.com/crime/article/San-Francisco-police-to-stop-releasing-suspect-15379672.php. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 994 Hearing Date: June 20, 2023

Subject: Law enforcement: social media

HISTORY

Source: Author

Prior Legislation: AB 1475 (Low, Ch. 126, Stats. of 2021)

SB 1027 (Hill, Ch. 194, Stats. of 2014)

Support: ACLU California Action; California Public Defender Association; Oakland Privacy; Prosecutors Alliance California

Opposition: California State Sheriffs Association

Assembly Floor Vote: 48 - 17

PURPOSE

The purpose of this bill is to require a police department or sheriff’s office to remove a booking photo shared on the department’s social media page within 14 days unless specific circumstances exist, and requires a police department or sheriff’s office sharing a booking photo on social media to use the name and pronouns given by the subject of that photo.

Existing law defines “booking photograph” to mean “a photograph of a subject individual taken pursuant to an arrest or other involvement in the criminal justice system.” (Civ. Code, § 1798.91.1, subd. (a)(1).)

Existing law defines “subject individual” to mean “an individual who was arrested.” (Civ. Code, § 1798.91.1, subd. (a)(2).)

Existing law provides that it shall be an unlawful practice for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. (Civ. Code, § 1798.91.1, subd. (b).)

Existing law permits a public entity to require and accept a reasonable administrative fee to correct a booking photograph. (Civ. Code, § 1798.91.1, subd. (c).)

Existing law states that each payment solicited or accepted in violation of these provisions constitutes a separate violation, and permits a subject individual to bring a civil action for damages and attorney’s fees, and any other legal or equitable relief. (Civ. Code, § 1798.91.1, subd. (d)-(e).)

Existing law prohibits a police department or sheriff’s office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime unless any of the following circumstances exist:

• • A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat;
    
  • A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest; or,
    
  • There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest. (Pen. Code, § 13665, subd. (a)(1)-(3).)

Existing law provides that a police department or sheriff’s office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime shall remove the booking photo from its social media page within 14 days, upon the request of the individual who is the subject of the social media post or the individual’s representative, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo, as specified. (Pen. Code, § 13665, subd. (b)(1).)

Existing law requires a police department or sheriff’s office that shares a booking photo on social media of an individual arrested a violent felony, as specified, to remove the booking photo from its social media page within 14 days upon the request of the arrestee or their representative, if the individual or their representative demonstrates any of the following:

• • The individual’s record has been sealed;
    
  • The individual’s conviction has been dismissed, expunged, pardoned, or eradicated, as specified;
    
  • The individual has been issued a certificate of rehabilitation;
    
  • The individual was found not guilty of the crime for which they were arrested; or,
  • The individual was ultimately not charged with the crime, or the charges were dismissed. (Pen. Code, § 13665, subd. (b)(2)(A)-(E).)

Existing law, for the purpose of the provisions above, defines “nonviolent crime” as a crime not that is not included in Penal Code § 667.5 as a “violent felony.”

Existing law defines “social media” as an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. (Pen. Code §§ 13665, subd. (c)(2) &632.01, subd. (a)(1).)

Existing law specifies that “social media” does not include an internet website or an electronic data system developed and administered by the police department or sheriff’s office. (Pen. Code § 13665, subd. (c)(2).)

This bill requires a police department or sheriff's office sharing a booking photo of an individual on social media, to use the name and pronouns given by the individual.

This bill authorizes a police department or sheriff's office to include other legal names or known aliases of an individual, if using the names or aliases will assist in locating or apprehending the individual or in reducing or eliminating an imminent threat to an individual or to public safety.

This bill requires the removal of a booking photo from the department's social media page within 14 days regardless of the crime, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo.

This bill applies the above provisions retroactively to any booking photo shared on social media.

This bill eliminates the requirement that the individual who is the subject of a social media post, or their representative, request and make a showing, as specified, in order to have their booking photo removed from a police department's or sheriff's department's social media page.

COMMENTS

1. Need for This Bill

According to the Author:

This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression.

1. Release of Mugshots by Law Enforcement

The presumption of innocence is a cornerstone of our nation’s criminal justice system. When a person is arrested for a crime, their interaction with the criminal justice system for the purpose of the alleged crime is minimal, and they have not yet been afforded the full measure of constitutional safeguards, such as due process, that are required in order to be convicted of committing a crime. Police officers may make an arrest on the basis of “probable cause,” which requires a showing that the facts and circumstances known to the officer at the time of the arrest form a reasonable basis for believing that a crime may have been committed by the person arrested.^[1] Probable cause requires more than a mere hunch or suspicion, and depends on a consideration of the totality of the circumstances.^[2] The United States Supreme Court has opined that the probable cause standard “protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community’s protection.”^[3]

Law enforcement generally captures a mugshot after an arrest at the time of booking, a practice that was historically intended to provide a photographic record of an arrested individual by victims, investigators and the public. However, since their introduction, the use of booking photos in various contexts has been increasingly recognized as prejudicial. The United States Court of Appeals for the District of Columbia has held that “the double-shot picture, with front and profile shots alongside each other, is so familiar, from 'wanted' posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic.”^[4] The release of a mugshot on a law enforcement social media account – a practice that has become more widespread in recent years – tells not only the community, but any user of the internet that a particular individual was arrested for an offense. Given the stigma associated with mugshots, these postings have the practical effect of giving the impression that the person portrayed in fact committed the crime for which they were arrested.

In 2015, The New York Times reported on the widespread practice of police departments posting booking photos of arrestees on their social media pages, either with the objective of informing the public, or in an attempt to evoke greater community engagement. As the article explains:

“Posting on the Internet is kind of like a bell you can’t unring,” Chief Whipple said at the time. But uploading the photographs has become a common practice at some police departments from New England to California, where Facebook pages and department websites have become a popular spot for posting digital lineups.

Police officers often say their aim is transparency, not public shaming. But Ms. Foley’s case highlights a challenge for the digital age: When does public notice become public punishment in a world where digital images can live forever? Many states consider the photographs to be public information, and those deemed newsworthy are published by the news media, sometimes in great numbers. But as the police put them on their own websites, lawyers, residents and the accused have raised concerns. They say the practice can serve as its own punishment and violate the privacy of individuals who have not been convicted of a crime.^[5]

In recent years the Legislature has taken steps to curb the invasive use and commercial exploitation of booking photos. In 2014, the Legislature passed SB 1027 (Hill, Ch. 194, Stats. 2014), which prohibited a person from publishing or otherwise disseminating a booking photograph to solicit payment of a fee or other consideration from a subject to remove, correct, modify, or to refrain from publishing or otherwise disseminating the photo. In 2017, this Legislature also passed AB 1008 (McCarty, Ch. 789, Stats. 2017), a so-called “ban the box” law, which prohibited an employer from inquiring about an applicant’s conviction history, and from considering, distributing, or disseminating information about arrests not followed by conviction, referral to or participation in pre- or post-trial diversion programs. Most recently, the Legislature passed AB 1475 (Low, Ch. 126, Stats. of 2021), which prohibited law enforcement agencies from sharing booking photos on social media of individuals arrested for non-violent offenses, except under specific circumstances.

1. Effect of This Bill

Existing law, enacted by AB 1475, prohibits a police department or sheriff’s office from sharing booking photos on social media of an individual arrested for a nonviolent offense unless 1) the arrestee is a fugitive or poses an imminent threat to public safety, 2) the dissemination of the image is due to a judicial order, or 3) there is an exigent circumstance that necessitates the release of the image in furtherance of an urgent and legitimate law enforcement interest. However, existing law also requires law enforcement agencies to remove posted booking shots of individuals arrested for a nonviolent offense within 14 days of a request from the individual or their representative, unless one of the above conditions is true. For individuals arrested for violent crimes, law enforcement may post booking photos on social media, but must remove them within 14 days if the individual or their representative demonstrates that the arrestee’s record has been sealed, the conviction has been dismissed or expunged, they have received a certificate of rehabilitation, or they were found not guilty of the crime or the charges were dismissed.^[6]

This bill builds upon the reforms of AB 1475 in two distinct ways. First, with respect to booking photos posted on social media of an individual arrested for any crime, the bill requires that the law enforcement agency use the name and pronouns given by the individual. The agency may include other legal names or known aliases of an individual if using the names or aliases will assist in locating or apprehending the individual or addressing an imminent threat to public safety. Using the name and pronouns provided by an arrestee constitutes an important step toward affirming the true racial and gender identities, and preventing “deadnaming,” or referring to a transgender or non-binary person by a name they used prior to transitioning. However, given that the bill mandates the use of any name provided by the arrestee, and allows the use of other aliases only if certain factors are present, this provision may lead to strange situations where, in the absence of those factors, a law enforcement agency is required to post only vulgarities or names they know to be false on social media when posting a mugshot. This may have the ultimate result of deterring the posting of mugshots altogether, even when doing so may serve a legitimate law enforcement interest, such as asking additional potential victims to come forward to assist with a prosecution.

Another provision of this bill requires law enforcement to remove any booking photo from its social media page – regardless of whether the individual or their representative has requested the removal – within 14 days of the photo being posted. However, the agency may keep the photo posted if 1) the arrestee is a fugitive or poses an imminent threat to public safety, 2) the dissemination of the image is due to a judicial order, or 3) there is an exigent circumstance that necessitates the release of the image in furtherance of an urgent and legitimate law enforcement interest.

1. Argument in Support

According to Oakland Privacy:

Assembly Bill 994 builds upon and expands protections already enacted by the Legislature in 2022 in AB 1475, which passed the Assembly floor 74-0, and the Senate floor 39-0. Assemblymember Low’s legislation was brought about by several municipal scandals, when law enforcement agencies chose to post mugshots to their social media accounts of individuals who had been charged with crimes, but not convicted. These mugshots ended up shared many, many times and caused reputational damage despite charges that were later dropped. Because of the nature of social media, the images remained in circulation long after the events transpired. Such pictures floating around can have downstream consequences for the people posted when seeking employment and housing for years to come, which is especially egregious when the mugshot is related to First Amendment protected activity and/or when charges are later dismissed.

The events that transpired in Berkeley, California are a particularly instructive example and one which received national attention. In August of 2018, “free speech protests” came to the university town and protesters and counterprotesters squared off in the city’s Civic Center Park. The counterprotesters were characterized by the Berkeley Police Department as “anti-fa” or anti-fascistic protesters who believed they were responding to a white-supremacist oriented attack on the city which has been famously liberal over the years in its politics. After some street scuffles, a number of counterprotesters were hit with charges that were never actually pursued and had their arrest images posted on the Berkeley Police Department’s Twitter account. Police department emails later secured by Berkeley Copwatch and the Lucy Parsons Lab in Chicago showed that the stated intent of the postings was to create a “counter narrative”. The emails further revealed that the police department had internally celebrated the number of retweets the postings had received. Arrest photos of 20 people were retweeted more than 8,000 times.

The department policy of posting mugshots to their Twitter account was restricted to events characterized as protests. While at the time of arrest, charges such as weapons and assault were offered up, it was later revealed that the weapons in question were scarves, bandanas and protest signs and that no significant injuries had taken place. Charges were either never filed or dismissed against all 20 people who had their arrest photos immortalized on Twitter. After a national outcry, the local City Council moved to end the policy and AB 1475 followed.

Assembly Bill 994 strengthens the work done in AB 1475 in three specific ways. Firstly, AB 994 correctly links the available exemption to what matters: whether or not there is a clear public interest in posting the mugshot due to an imminent threat to the public that could be alleviated by posting the mugshot. There is no other public interest in posting a mugshot on social media. Secondly, AB 994 states that if it is found necessary to post a mugshot on social media, it is the responsibility of the posting entity to use the correct pronouns for the individual and not to dead name them. This is an important protection for people in transition, who may have different levels of openness in different sectors of their lives about their gender assignment at birth and avoids unanticipated collateral damage from a posted mugshot that can endure long beyond the particular arrest in question. Thirdly, AB 994 restricts the posting period to a maximum of 14 days and removes the impetus for removal from the individual whose mugshot was posted. Under AB 994, people whose mugshots were posted do not have the burden of specifically requesting a takedown. Instead, it happens by default after a maximum of 14 days.

1. Argument in Opposition

According to the California State Sheriffs’ Association:

By requiring an agency that posts a booking photo to use the name given by the individual, AB 994 seems to mandate that the posting agency use whatever name the arrestee gives, even if it is known to be false. Our concern with this provision is not related to a person’s ability to use their preferred name and pronouns, but rather the ability to clearly articulate who is shown in a photo. While AB 994 allows an agency to include other legal names or aliases, it only does so if using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety.

Additionally, the bill requires the posting agency to remove the booking photo within 14 days as opposed to current law, which requires the individual to request the photo be removed. This provision creates additional workload for public agencies.

-- END –

1. Ohio v. Beck (1964) 379 U.S. 89, 91. ↑

2. District of Columbia v. Wesby 138 S. Ct. 577 (2018) ↑

3. Brinegar v. United States 338 U.S. 160, 176 (1949) ↑

4. Barnes v. United States 365 F.2d 509, 510-511 (1966) ↑

5. Jess Bidgood, “After Arrests, Quandary for Police on Posting Booking Photos,” The New York Times, Jun. 26, 2015, https://www.nytimes.com/2015/06/27/us/after-arrests-quandary-for-police-on-posting-booking-photos.html, [as of Apr. 20, 2021]. ↑

6. Penal Code §13665 ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 994

Author:(Jackson)

As Amended Ver:May 2, 2023

Majority vote

SUMMARY

Requires a police department or sheriff's office to remove a booking photo shared on the department's social media page within 14 days unless the subject of the image is a fugitive or an imminent threat to public safety, or continuing to share the image is otherwise justified by a legitimate law enforcement interest.

Major Provisions

1. Requires a police department or sheriff's office sharing a booking photo of an individual on social media, to use the name and pronouns given by the individual.
2. Allows a police department or sheriff's office to include other legal names or known aliases of an individual, if using the names or aliases will assist in locating or apprehending the individual or in reducing or eliminating an imminent threat to an individual or to public safety.
3. Requires the removal of a booking photo from the department's social media page within 14 days regardless of the crime, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo.
4. Eliminates the requirement that the individual who is the subject of a social media post, or their representative, request and make a showing, as specified, in order to have their booking photo removed from a police department's or sheriff's department's social media page.

COMMENTS

Limitations on Posting Booking Photos: Social media mug shots have been compared to a modern-day scarlet letter. They have been used as a tool for public shaming. They become a public record used by other organizations like newspapers. And they can have long term consequences because they can be revealed much later by an internet search of a person's name. (See e.g. Seidman, Are Social Media Mugshots the New Scarlet Letter?, Sarasota Herald Tribune, https://www.heraldtribune.com/story/news/local/sarasota/2019/10/10/seidman-are-social-media-mugshots-new-scarlet-letter/2566182007/.)

Current law allows a police department or sheriff's office to share booking photos on social media of an individual arrested on suspicion of committing a violent crime. They can also share images of persons arrested on suspicion of committing nonviolent crimes if the person is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual. This bill would prohibit a police department or sheriff's office from sharing booking photos on social media of a person arrested on suspicion of any crime, violent or nonviolent, unless the person is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual.

Current law also requires a police department or sheriff's office that shares a booking photo on its social media page to remove the image within 14 days if the subject of the social media post or their representative requests it and shows that the individual's record has been sealed; the individual's conviction has been dismissed, expunged, pardoned, or eradicated; the individual has been issued a certificate of rehabilitation; the individual was found not guilty of the crime for which they were arrested; or the individual was ultimately not charged with the crime or the charges were dismissed. This bill would require automatic removal of a booking photo on social media within 14 days unless the subject of the booking photo is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual.

Finally, this bill would require a police department or sheriff's office that shares a booking photo on social media to use the name and pronouns given by the subject of the booking photo. However, if the individual is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual, a police department or sheriff's office would be authorized to include other known alias or names used by the subject of the booking photo.

According to the Author

"This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression."

Arguments in Support

According to Oakland Privacy, "Assembly Bill 994 builds upon and expands protections already enacted by the Legislature in 2022 in AB 1475, which passed the Assembly floor 74-0, and the Senate floor 39-0.

"Assemblymember Low's legislation was brought about by several municipal scandals, when law enforcement agencies chose to post mugshots to their social media accounts of individuals who had been charged with crimes, but not convicted. These mugshots ended up shared many, many times and caused reputational damage despite charges that were later dropped. Because of the nature of social media, the images remained in circulation long after the events transpired. Such pictures floating around can have downstream consequences for the people posted when seeking employment and housing for years to come, which is especially egregious when the mugshot is related to First Amendment protected activity and/or when charges are later dismissed.

"The events that transpired in Berkeley, California are a particularly instructive example and one which received national attention. In August of 2018, 'free speech protests' came to the university town and protesters and counterprotesters squared off in the city's Civic Center Park. The counterprotesters were characterized by the Berkeley Police Department as 'anti-fa' or antifascistic protesters who believed they were responding to a white-supremacist oriented attack on the city which has been famously liberal over the years in its politics. After some street scuffles, a number of counterprotesters were hit with charges that were never actually pursued and had their arrest images posted on the Berkeley Police Department's Twitter account. Police department emails later secured by Berkeley Copwatch and the Lucy Parsons Lab in Chicago showed that the stated intent of the postings was to create a 'counter narrative'. The emails further revealed that the police department had internally celebrated the number of retweets the postings had received. Arrest photos of 20 people were retweeted more than 8,000 times.

"The department policy of posting mugshots to their Twitter account was restricted to events characterized as protests. While at the time of arrest, charges such as weapons and assault were offered up, it was later revealed that the weapons in question were scarves, bandanas and protest signs and that no significant injuries had taken place. Charges were either never filed or dismissed against all 20 people who had their arrest photos immortalized on Twitter. After a national outcry4, the local City Council moved to end the policy and AB 1475 followed.

"Assembly Bill 994 strengthens the work done in AB 1475 in three specific ways.

"Firstly, it erases the distinction between being charged with a nonviolent crime and being charged with a violent crime for the purposes of the protections offered in the bill. This is a correct identification that initial charges in first amendment-related events are often overstated and can be punitive in nature and in many cases are rapidly dropped or dismissed. The bill removes an incentive for overcharging in order to retain the ability to post a mugshot. AB 994 correctly links the available exemption to what matters: whether or not there is a clear public interest in posting the mugshot due to an imminent threat to the public that could be alleviated by posting the mugshot. There is no other public interest in posting a mugshot on social media.

"Secondly, AB 994 states that if it is found necessary to post a mugshot on social media, it is the responsibility of the posting entity to use the correct pronouns for the individual and not to deadname them.

"This is an important protection for people in transition, who may have different levels of openness in different sectors of their lives about their gender assignment at birth and avoids unanticipated collateral damage from a posted mugshot that can endure long beyond the particular arrest in question.

"Thirdly, AB 994 restricts the posting period to a maximum of 14 days and removes the impetus for removal from the individual whose mugshot was posted. Under AB 994, people whose mugshots were posted do not have the burden of specifically requesting a takedown. Instead, it happens by default after a maximum of 14 days."

Arguments in Opposition

According to the California Law Enforcement Association of Records Supervisors (CLEARS), "The law being amended by this bill was only created in 2021 and didn't take effect until last year. AB 994 seeks a significant expansion of a law that was negotiated to address many of the concerns that were raised during the debate. This bill rejects the limitation that was included in current law to keep the bill's reach to nonviolent crimes. The ability to post booking photos, while being restricted, left the door open for government to balance privacy considerations and the interest in communicating with the public about those who are accused of committing serious and violent crimes. AB 994 would prevent the posting of booking photos of a person arrested for a violent crime unless very specific and limited conditions exist."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, no state costs. To the extent law enforcement agencies (LEAs) incur costs complying with this bill, General Fund costs would depend on whether the Commission on State Mandates determines that the duties imposed by this bill constitute a reimbursable state mandate.

VOTES

ASM PUBLIC SAFETY: 5-2-1

YES: Jones-Sawyer, Bryan, Ortega, Santiago, Zbur

NO: Alanis, Lackey

ABS, ABST OR NV: Bonta

ASM PRIVACY AND CONSUMER PROTECTION: 8-3-0

YES: Gabriel, Bauer-Kahan, Bennett, Irwin, Lowenthal, Papan, Wicks, Wilson

NO: Joe Patterson, Essayli, Vince Fong

ASM APPROPRIATIONS: 12-3-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Weber, Wilson

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis

UPDATED

VERSION: March 16, 2023

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0000354

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 994

Author:(Jackson) – As Amended Ver:May 2, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

If a law enforcement agency (LEA) shares on social media the booking photo of someone who has been arrested, this bill requires the LEA to use the name and pronouns given by the person. The LEA may include other names and aliases if doing so will assist in locating or apprehending the person or in reducing or eliminating an imminent threat. The bill also requires an LEA to remove any booking photo from social media within 14 days of posting it, except in specified circumstances.

FISCAL EFFECT:

No state costs. To the extent LEAs incur costs complying with this bill, General Fund costs would depend on whether the Commission on State Mandates determines that the duties imposed by this bill constitute a reimbursable state mandate.

COMMENTS:

1. Author’s Statement. According to the author:

This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression.

1. Background. Current law allows a police department or sheriff’s office to share on social media the booking photos of an individual arrested on suspicion of committing a violent crime. Under existing law, an LEA must remove the person’s photos within 14 days upon request if the person meets specified criteria, like if their record has been sealed or they were found not guilty of the crime for which they were arrested.

LEAs can also share images of persons arrested on suspicion of committing nonviolent crimes, but only if the person is a fugitive or poses an imminent threat and releasing the image will reduce the threat or help locate the individual, if a judge ordered release of the photo, or if there is an exigent circumstance that requires the photo to be disseminated. Existing law also requires an LEA to remove a booking photo from social media within 14 days upon request of the person depicted in the photo, subject to some exceptions.

This bill eliminates the requirement that someone must request to have their booking photo removed from social media, and instead require an LEA to automatically remove such photos within 14 days unless the person is a fugitive or poses an imminent threat and releasing the image will reduce the threat or help locate the individual, if a judge ordered release of the photo, or if there is an exigent circumstance that requires the photo to be disseminated.

This bill also requires LEAs to use the name and pronouns provided by the person if the LEA posts their booking picture on social media, which may help reduce instances of deadnaming by LEAs. However, the bill allows an LEA to include on social media the person’s former names and aliases if doing so will assist in locating or apprehending the individual or in eliminating an imminent threat, so the practice may remain largely within the discretion of LEAs.

1. Prior Legislation. AB 1475 (Low), Chapter 126, Statutes of 2021, limits the ability of police departments and sheriff’s departments to share mug shots on social media.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 25, 2023

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Jesse Gabriel, Chair

ABPCA Bill Id:AB 994 (

Author:Jackson) – As Amended Ver:March 16, 2023

As Proposed to be Amended

SUBJECT: Law enforcement: social media

SYNOPSIS

In recent years, local law enforcement agencies have begun regularly posting the booking photos of individuals online, often referring to them as “Wanted Wednesdays,” “Turn Yourself In Thursdays,” and “Felony Fridays.” This practice of publicly shaming people who have been arrested, but not convicted of a crime, significantly infringes on those people’s right to privacy.

In 2021, the Legislature banned this practice for people accused of non-violent crimes. However the practice continues to allow law enforcement agencies to publicly out transgender men and women and non-binary people on the internet by using their former name (also known as a “dead name”) and the wrong pronouns. This bill is intended to address that by requiring that when law enforcement agencies post booking photos online, they use the preferred name and pronouns of the person in the picture.

In addition, this bill seeks to ensure that a booking photo does not remain online in perpetuity by requiring that the booking photo be removed after 14 days, unless there is a legitimate public safety reason to continue to leave up the post.

Committee staff does have one significant concern with the bill as it is currently in print. The author recently amended the section of the bill prohibiting dead naming people on social media platforms when posting a booking photo to include the following language:

A police department or sheriff’s office may include other legal names or known aliases of an individual if using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety.

This amendment leaves the decision of whether or not a situation warrants dead naming entirely up to the law enforcement agency without requiring any justification beyond the agency deciding that doing so will “assist in locating or apprehending the individual.” The author may wish to strengthen this language to require evidence supporting the agency’s decision and a court order prior to posting something other than the name they were provided by the individual. Absent this, it is possible that this bill will fail to live up to the author’s intention to prohibit the public outing of transgender and nonbinary people on social media platforms.

This bill is author sponsored and supported by the ACLU, Oakland Privacy, and a number of other privacy and social justice organizations. On the other hand, the California Police Chiefs Association, the California State Sheriffs’ Association, and a number of law enforcement organizations oppose this bill.

The bill was previously heard in the Assembly Public Safety Committee, where it passed on a 5-2-1 vote.

SUMMARY: Requires that when a police department or sheriff’s office shares a booking photo of someone on social media, as defined, they must use the name and pronouns given by the individual. Specifically, this bill:

1. Requires that when a police department of sheriff’s department shares a booking photo of someone on social media, as defined, they must use the name and pronouns given by the individual in the post.
2. Limits the use of a person’s former names only if using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety.
3. Requires that a booking photo shared on social media be removed within 14 days of posting unless specific circumstances exist.

EXISTING LAW:

1. Provides, pursuant to the California Constitution, that all people have inalienable rights, including the right to pursue and obtain privacy. (Cal. Const., art. I, § 1.)
2. Prohibits a police department or sheriff’s office from sharing on social media the booking photos of an individual arrested on suspicion of committing a nonviolent crime unless any of the following circumstances exist:
   1. A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat.
   2. A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest.
   3. There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest. (Pen. Code § 13665(a)(1)-(3).)
3. Requires a police department or sheriff’s office that shares a booking photo of an individual arrested for a nonviolent crime on social media to remove the booking photo from any place it was electronically posted within 14 days, upon the request of the subject of booking photo or their representative, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo, as specified. (Pen. Code § 13665(b)(1).)
4. Requires a police department or sheriff’s office that electronically shares a booking photo of an individual arrested for a violent felony, as specified, to remove the booking photo within 14 days upon the request of the arrestee or their representative, if the individual or their representative demonstrates any of the following:
   1. The individual’s record has been sealed.
   2. The individual’s conviction has been dismissed, expunged, pardoned, or eradicated, as specified.
   3. The individual has been issued a certificate of rehabilitation.
   4. The individual was found not guilty of the crime for which they were arrested.
   5. The individual was ultimately not charged with the crime, or the charges were dismissed. (Pen. Code § 13665(b)(2)(A)-(E).)
5. Defines “social media” to mean “an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” (Pen. Code § 632.01.)
6. Defines “booking photograph” to mean “a photograph of a subject individual taken pursuant to an arrest or other involvement in the criminal justice system.” (Civ. Code § 1798.91.1(a)(1).)
7. Defines “subject individual” to mean “an individual who was arrested.” (Civ. Code § 1798.91.1(a)(2).)
8. Defines “public records” to include any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 6252(e).)
9. Defines “violent felony” to include all of the following: murder or voluntary manslaughter; mayhem; rape; sodomy, as defined; oral copulation, as defined; lewd or lascivious act, as defined; any felony punishable by death or imprisonment in the state prison for life; any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, as specified, or any felony in which the defendant uses a firearm, as specified; any robbery; arson; sexual penetration, as defined; attempted murder; kidnapping; assault with the intent to commit a specified felony; continuous sexual abuse of a child; carjacking; extortion; threats to victims or witnesses, as specified; any burglary of the first degree; and the use of explosives that causes bodily injury or death, or with the intent to commit murder. (Pen. Code § 667.5(c).)
10. Requires that during the initial intake and classification process, in a private setting the California Department of Corrections (CDCR) shall ask each person in private:
    1. The individual’s gender identity of female, male, or nonbinary.
    2. Whether the individual identifies as transgender, nonbinary, or intersex.
    3. The individual’s gender pronoun and honorific. (Pen. Code § 2605(a).)
11. Prohibits staff, contractors, and volunteers at CDCR from consistently failing to use the gender pronoun and honorific an individual has specified in all verbal and written communications with or regarding the individual that involve use of a pronoun and honorific. (Pen. Code § 3605(d).)
12. Requires that in all documentation of a person under the jurisdiction of CDCR or imprisoned within a county jail, the new name of a person who obtains a name change to be used, and prior names to be listed as an alias. (Code Civ. Proc. § 1279.5 (d).)
13. Provides that it shall be an unlawful practice for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. (Civ. Code § 1798.91.1.)
14. Permits a public entity to require and accept a reasonable administrative fee to correct a booking photograph. (Civ. Code § 1798.91.1(c).)
15. States that each payment solicited or accepted in violation of these provisions constitutes a separate violation, and permits a subject individual to bring a civil action for damages and attorney’s fees, and any other legal or equitable relief. (Civ. Code § 1798.91.1(d) and (e).)
16. Provides pursuant to the California Public Records Act (PRA) that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt. (Gov. Code § 6250 et seq.)
17. States that, except as in other sections of the PRA, the PRA does not require the disclosure of specified records, which includes among other things: records of complaints to, or investigations conducted by specified agencies, including any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. (Gov. Code § 6254(f).)
18. Provides the process by which a person may petition the court for a name change, including a name change to conform the petitioner’s name to the petitioner’s gender identity. (Code Civ. Proc. §§ 1276, 1277.5.)
19. Provides that a person may file a petition with the superior court in any county seeking a judgment recognizing the change of gender to female, male, or nonbinary. (Health & Saf. Code, § 103425(a).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS:

1) Purpose. This bill is intended to do two things:

a) Prohibit a law enforcement agency from dead naming an individual if it shares or posts that individual’s booking photo. Instead, the agency must use the person’s affirmed name and preferred pronouns. As the author notes, this bill, in its previous version, focused on preventing the public outing of an individual on the world stage, which could ultimately subject the person to humiliation, increased discrimination, and even violence. “This remains entirely preventable by simply using the name and pronouns given by the individual. And yet, no existing law requires the police department to respect the privacy and humanity of these individuals by using the name and pronouns provided.”

b) Require that if law enforcement does have a reason for posting a photo online, that photo must be removed within 14 days, unless:

1. The suspect is still a fugitive or an imminent threat to an individual or to public safety and continuing to post the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat.

2. A court order is in place requiring the dissemination of the suspect’s image based on a finding that the dissemination is in furtherance of a legitimate law enforcement interest.

3. There is an exigent circumstance that necessitates the continued dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest.

2) Author’s Statement. According to the author:

This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression.

3) The importance of requiring law enforcement to use a person’s given name and preferred pronouns, in the event a booking photo is shared on social media. Over the past decade, the struggles of the transgender and gender nonconforming communities have become part of the American zeitgeist, particularly as various media have explored the institutional challenges facing these communities and as the history of violence against transgender people, transgender women in particular, has been highlighted in the media. In the current political environment, the attacks on LGBTQ people have increased significantly. The American Civil Liberties Union (ACLU) is currently tracking 451 anti-LGBTQ bills introduced this year throughout the country, including one in California. In addition, transgender people face extraordinary levels of physical and sexual violence, whether on the streets, at school or work, at home, or at the hands of government officials. More than one in four transgender people have faced a bias-driven assault, and rates are higher for transgender women and transgender people of color. (The Report of the 2015 U.S. Transgender Survey. The National Center for Transgender Equality, available at https://transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf.)

The importance of affirming a person’s new name cannot be understated. When people refuse to acknowledge a person’s new name and continue to use their old name, it can cause significant trauma and negatively impact the person’s mental health. Furthermore, when government entities, like law enforcement, refuse to use a person’s chosen name and intentionally mis-gender them, it not only is cruel and unnecessary, but it can hinder their own criminal investigations.

ProPublica investigated the impact of law enforcement deliberately using former names and mis-gendering murder victims. In an August 2018 report, they noted that they had found 65 different law enforcement agencies in the United States that had investigated murders of transgender people since January 1, 2015. In 74 of the 85 cases they reviewed, victims were referred to by law enforcement officials by names and genders they no longer used. According to the reports, not using the name and pronouns a victim is known by can slow down an investigation if potential witnesses and others people who interacted with the victim only know them by their preferred name and gender. As police in the few agencies that routinely use victim’s preferred names and gender, like the Los Angeles Police Department, pointed out, routinely and purposefully misidentifying people means that they might lose the cooperation of friends and family—the exact people they need to solve the case. (Waldron and Schwencke, Deadnamed, ProPublica (Aug 10, 2018), available at https://www.propublica.org/article/deadnamed-transgender-black-women-murders-jacksonville-police-investigation.) This legislation is intended to ensure that investigations are not, in fact, hindered by law enforcement officials persistently mis-gendering and dead naming people that they may be searching for during the investigation of a serious crime.

Along with the concerns associated with refusing to recognize a transgender or non-binary person’s chosen name, in the Black community, there is a long history of Black Americans adopting new names as a way of self-determination and liberation that dates back to slavery and emancipation. There are many well-known examples: Araminta Ross, after liberating herself from slavery chose the name Harriet Tubman; in 1964, Cassius Clay became known as Muhammad Ali; born Paulette Linda Williams, the poet and playwright became Ntozake Shange; and, in 1952, Malcolm Little became Malcolm X. As the latter noted in The Autobiography of Malcom X, “[C]ut these black people off from all knowledge of their own kind, and cut them off from any knowledge of their own language, religion, and past culture, until the black man in America was the earth’s only race of people who had absolutely no knowledge of his true identity.” (Malcolm X and Alex Haley, The Autobiography of Malcom X, p. 188)

Within this history is also a history of government officials and others refusing to recognize those names, similar to the experiences of people who are transgender or nonbinary. One example of this is Assata Shakur, author and former leader in the Black Panther Party and the Black Liberation Army. She was born Joanne Byron, and after marrying in 1967, she became Joanne Chesimard. In 1971, she adopted the name Assata Olugbala Shakur and has been widely known by that name for over 50 years, including as the author of her well known 2001 autobiography, Assata: An Autobiography. However, at the time of her arrest for her involvement in a confrontation in 1973 in New Jersey that left a state trooper dead, through her conviction and escape to Cuba, where she continues to live in exile, the FBI, New Jersey officials, and other government entities, along with many news outlets, have continually referred to her as Joanne Chesimard, rather than by the name that she is widely recognized by. In 2013, on the 40th anniversary of the confrontation in New Jersey, when the FBI decided to place her on their list of most wanted terrorists, making her the first woman on the list, they continued to refer to her as Joanne Chesimard throughout their press conference and in public statements. (Harris, FBI makes Joanne Chesimard the first woman to appear on most-wanted list. The Guardian (May 3, 2013), available at https://www.theguardian.com/world/2013/may/03/fbi-wanted-first-woman-joanne-chesimard.)

This example is notable because, as with the example above of the dead naming of murdered transgender women hindering investigations into their killing, using the former name of Joanne Chesimard, which most people would not recognize, does not appear to serve the purpose of asking the public to help find her and provide information on her whereabouts if she returns to the United States. On the contrary, research has shown that the deliberate refusal on behalf of law enforcement officials to use the chosen name of a person and their appropriate gender not only has the potential to negatively impact the person’s mental health and inflict unnecessary trauma, but it also impedes the investigations, rather than helping collect information. If a person saw a social media post or a press conference asking for information about Araminta Ross and Joanne Chesimard, for example, that person could have no idea who the FBI is looking for, even though they may have had brunch with Harriet Tubman and Assata Shakur just last week.

4) Legislative efforts to address barriers faced by transgender and non-binary communities. In recent years, the Legislature has addressed a number of hurdles faced by the transgender community. To address the barriers faced by transgender individuals going through the court process for name changes, AB 1121 (Atkins, Chap. 651, Stats. 2013) was introduced and enacted into law. It required courts to grant petitions for a change of name sought to conform an individual’s name to the individual’s gender identity without a hearing if no timely objection is made. Four years later, SB 179 (Atkins, Chap. 853, Stats. 2017) further streamlined these processes and updated the required documentation to reflect an evolved understanding of gender identity.

In 2021, AB 218 (Ward, Chap. 577, Stats. 2021) took the next step in providing more inclusive processes for the transgender and gender nonconforming communities. That bill extended the existing framework for petitioners changing their names and/or genders on their own birth certificates to further update their marriage licenses and certificates and the birth certificates of their children. It also extended eligibility for certain processes to persons not born or residing within the state and recognizes orders in foreign jurisdictions for purposes of sufficient documentation.

In the realm of criminal justice, in particular, SB 132 (Wiener, Chap. 182, Stats. 2020) specifically requires that CDCR ask each person entering prison their gender identify, preferred first name, pronouns and honorific. It further requires the prisons to use those preferred identifiers and issue CDCR identification reflecting that name and gender identity.

5) Broad definition of “social media” in the current statute. As this Committee noted in its 2021 analysis of AB 1475 (Low, Chap. 126, Stats. 2021), the code section referenced (Pen. Code § 632.01.(a)(1)) defines “social media” broadly.

6) Potential concerns with recent amendments. The author recently amended the section of the bill prohibiting dead naming people on social media platforms when posting a booking photo to include the following language:

A police department or sheriff’s office may include other legal names or known aliases of an individual if using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety.

This amendment leaves the decision of whether or not a situation warrants dead naming when their booking photo is posted entirely up to the law enforcement agency without requiring any justification beyond the agency deciding that doing so will “assist in locating or apprehending the individual.” The author may wish to strengthen this language to require evidence supporting the agency’s decision and a court order prior to posting something other than the name provided by the individual. Otherwise, it is possible that this bill will fail to live up to the author’s intention to protect the privacy and prohibit the public outing of transgender and nonbinary people on social media platforms. As an example, if the New York Police Department arrested Marsha P. Johnson and posted her mug shot and information on social media as “Marsha P. Johnson, also known as Malcolm Michaels, Jr.” it has the same effect as outing her by referring to her by her dead name. The opposition argued that the original language in the bill would lead suspects to give a false name and gender identity to muddy an investigation. If this were to happen, such an effort would be the kind of evidence that can be presented to obtain a court order to post former names.

7) Committee amendments. The law limiting the posting of the booking photos of people who are suspected of committing non-violent crimes has only been in place for just over one year. Giving the Legislature more time to determine the impact of that restriction seems prudent. Toward that end, the amendments remove the expansion of this prohibition to any crime that is committed.

So, under the bill as it will be amended, law enforcement agencies will be required to use the given name and pronouns to identify someone in a booking photo that is shared online. In addition, dead naming anyone through the addition of aliases or former names in a posted booking photo is prohibited, unless there is a legitimate law enforcement reason.

8) Related legislation. AB 223 (Ward, 2023) of this Session enhances protections for minors seeking changes of name or gender by making the proceedings presumptively confidential. This bill is currently pending in the Senate.

AB 1475 (Low, Chap. 126, Stats. 2021) limited police departments and sheriff’s departments from sharing mug shots electronically.

AB 218 (Ward, Chap. 577, Stats. 2021) extended the existing framework for petitioners changing their names and/or genders on their own birth certificates to further update their marriage licenses and certificates and the birth certificates of their children. It also extended eligibility for certain processes to persons not born or residing within the state and recognizes orders in foreign jurisdictions for purposes of sufficient documentation.

SB 132 (Wiener, Chap. 182, Stats. 2020) required the California Department of Corrections and Rehabilitation (CDCR), during the initial intake and classification process, to ask each individual entering into its custody to specify the individual’s gender identity and sex assigned at birth, as well as preferred first name, gender pronoun, and honorific. In addition, the bill required a person incarcerated by CDCR to be issued identification reflecting a gender marker consistent with the gender identity the individual has most recently specified.

SB 179 (Atkins, Chap. 853, Stats. 2017) streamlined the process by which a person could obtain a name change to conform with their gender identity and updated the required documentation to reflect an evolved understanding of gender identity.

SB 1027 (Hill, Chap. 194, Stats. 2014) prohibited a person or private entity from soliciting or accepting a fee to remove, correct, or modify a booking photograph.

AB 1121 (Atkins, Chap. 651, Stats. 2013) required courts to grant petitions for a change of name seeking to conform an individual’s name to the individual’s gender identity without a hearing, if no timely objection is made.

ARGUMENTS IN SUPPORT: American Civil Liberties Union California Action writes in support:

Our criminal justice system is built on the premise that the accused is innocent until proven guilty. The routine practice by some local police departments of posting mugshots on Facebook to shame and ridicule the arrested person flies in the face of that premise. This practice can cause great financial harm to the accused if such a post is shared with a current or prospective employer and great emotional harm if family and friends see it.

With a quick internet search, a prospective employer can find information about an arrest that may not have been justified, charges that were not prosecuted, or charges for which the person was found not guilty. AB 994 addresses this problem through its general prohibition on law enforcement posting booking photos and its 14-day removal timeline for any photos that are posted due to exigent circumstances. This bill will ensure that people who come into contact with law enforcement have one less barrier to obtaining employment and housing and will not have to live in fear that a social media post will follow them forever. It is also likely to reduce some of the sources of implicit bias and stereotyping.

Prosecutors Alliance California writes in support:

In addition, some law enforcement have intentionally posted booking photos to social media with the incorrect gender pronouns and name of the arrested person. This conduct is deeply harmful not just to the individual but to the entire LGBTQI community.

AB 994 will […] require that a booking photo shared on social media be removed within 14 days, except for limited circumstances. Finally, AB 994 will require that postings to social media use the chosen name and gender pronouns of the arrested individual, with limited exceptions for posting aliases.

ARGUMENTS IN OPPOSITION: The California State Sheriffs’ Association writes in opposition:

The law being amended by this bill was only created in 2021 and did not take effect until last year. AB 994 seeks a significant expansion of a law that was negotiated to address many of the concerns that were raised during the debate. This bill rejects the limitation that was included in current law to keep the bill’s reach to nonviolent crimes. The ability to post booking photos, while being restricted, left the door open for government to balance privacy considerations and the interest in communicating with the public about those who are accused of committing serious and violent crimes.

Note: provisions affecting posting of photos involving violent crimes will be removed by Committee amendments. See Section 7 above.

A coalition of police officers associations argues in their opposition letter that:

If an arrestee prefers to go by his street name of “Mickey Mouse” or any other moniker, the sheriff’s department would be mandated under AB 994 to publish that information, preventing the publication of the arrestee’s real name which could lead to additional information coming forward [sic] from the public.

As amended, the bill no longer precludes the listing of other names the person has used in the past, “if using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety.”

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
California Public Defenders Association (CPDA)
Communities United for Restorative Youth Justice (CURYJ)
Ella Baker Center for Human Rights
Initiate Justice
Oakland Privacy
Prosecutors Alliance California
Sacramento LGBT Community Center
Sister Warriors Freedom Coalition
The San Diego LGBT Community Center
The Source LGBT + Center
The Translatin@ Coalition
Transgender, Gendervariant, Intersex Justice Project

Opposition

Arcadia Police Officers' Association
Burbank Police Officers' Association
California Coalition of School Safety Professionals
California Law Enforcement Association of Records Supervisors (CLEARS)
California Police Chiefs Association
California State Sheriffs' Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Palos Verdes Police Officers Association
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Upland Police Officers Association

Analysis Prepared by: Julie Salley / P. & C.P. / (916) 319-2200

Date of Hearing: March 21, 2023

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Prohibits a police department or sheriff’s office from sharing a booking photo on social media unless the subject of the image is a fugitive or an imminent threat to public safety, or sharing the image is otherwise justified by a legitimate law enforcement interest. Specifically, this bill:

1. Expands the prohibition on the sharing of booking photos by a police department or sheriff’s office, on social media, of an individual arrested on suspicion of committing a nonviolent crime, to apply to individuals arrested on suspicion of committing any crime, except as specified.
   
2. Requires a police department or sheriff’s office sharing a booking photo of an individual on social media, to use the name and pronouns given by the individual.
   
3. Allows a police department or sheriff’s office to include other legal names or known aliases of an individual, if using the names or aliases will assist in locating or apprehending the individual or in reducing or eliminating an imminent threat to an individual or to public safety.
   
4. Requires the removal of a booking photo from the department’s social media page within 14 days regardless of the crime, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo.
   
5. Eliminates the requirement that the individual who is the subject of a social media post, or their representative, request and make a showing, as specified, in order to have their booking photo removed from a police department’s or sheriff’s department’s social media page.
   

EXISTING LAW:

1. Prohibits a police department or shreiff’s office from sharing, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime unless any of the following circumstances exist:
   
   1. A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat;
      
   2. A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest; or,
      
   3. There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest. (Pen. Code, § 13665, subd. (a)(1)-(3).)
      
2. Requires a police department or sheriff’s office that posts a booking photo on social media, of an individual arrested for a nonviolent crime to remove the booking photo from its social media page within 14 days, upon the request of the subject of the social media post or theirrepresentative, unless the person is a fugitive or an imminent threat, or there exists a legitimate law enforcement purpose for not removing the photo, as specified. (Pen. Code, § 13665, subd. (b)(1).)
   
3. Requires a police department or sheriff’s office that shares a booking photo on social media of an individual arrested a violent felony, as specified, to remove the booking photo from its social media page within 14 days upon the request of the arrestee or their representative, if the individual or their representative demonstrates any of the following:
   
   1. The individual’s record has been sealed;
      
   2. The individual’s conviction has been dismissed, expunged, pardoned, or eradicated, as specified;
      
   3. The individual has been issued a certificate of rehabilitation;
      
   4. The individual was found not guilty of the crime for which they were arrested; or,
      
   5. The individual was ultimately not charged with the crime, or the charges were dismissed. (Pen. Code, § 13665, subd. (b)(2)(A)-(E).)
      
4. Defines “social media” as an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. (Pen. Code §§ 13665, subd. (c)(2) &632.01, subd. (a)(1).)
   
5. Provides that “social media” does not include an internet website or an electronic data system developed and administered by the police department or sheriff’s office. (Pen. Code § 13665, subd. (c)(2).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “This bill brings more equality and justice to every Californian, by ensuring that no one is assumed of being guilty or being a particular gender. As we protect our due process right, so too must we protect the privacy of every Californian. True justice is fairness! Equal protection under law should also have come with an equal protection of privacy and gender expression.” 
   
2. Limitations on Posting Booking Photos: Social media mug shots have been compared to a modern-day scarlet letter. They have been used as a tool for public shaming. They become a public record used by other organizations like newspapers. And they can have long term consequences because they can be revealed much later by an internet search of a person’s name. (See e.g. Seidman, Are Social Media Mugshots the New Scarlet Letter?, Sarasota Herald Tribune, https://www.heraldtribune.com/story/news/local/sarasota/2019/10/10/seidman-are-social-media-mugshots-new-scarlet-letter/2566182007/.)
   
   Current law allows a police department or sheriff’s office to share booking photos on social media of an individual arrested on suspicion of committing a violent crime. They can also share images of persons arrested on suspicion of committing nonviolent crimes if the person is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual. This bill would prohibit a police department or sheriff’s office from sharing booking photos on social media of a person arrested on suspicion of any crime, violent or nonviolent, unless the person is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual.
   
   Current law also requires a police department or sheriff’s office that shares a booking photo on its social media page to remove the image within 14 days if the subject of the social media post or their representative requests it and shows that the individual’s record has been sealed; the individual’s conviction has been dismissed, expunged, pardoned, or eradicated; the individual has been issued a certificate of rehabilitation; the individual was found not guilty of the crime for which they were arrested; or the individual was ultimately not charged with the crime or the charges were dismissed. This bill would require automatic removal of a booking photo on social media within 14 days unless the subject of the booking photo is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual.
   
   Finally, this bill would require a police department or sheriff’s office that shares a booking photo on social media to use the name and pronouns given by the subject of the booking photo. However, if the individual is a fugitive or an imminent threat to an individual or to public safety and releasing the image will reduce the threat or help locate the individual, a police department or sheriff’s office would be authorized to include other known alias or names used by the subject of the booking photo.
   
3. Argument in Support: According to Oakland Privacy, “Assembly Bill 994 builds upon and expands protections already enacted by the Legislature in 2022 in AB 1475, which passed the Assembly floor 74-0, and the Senate floor 39-0.
   
   “Assemblymember Low’s legislation was brought about by several municipal scandals, when law enforcement agencies chose to post mugshots to their social media accounts of individuals who had been charged with crimes, but not convicted. These mugshots ended up shared many, many times and caused reputational damage despite charges that were later dropped. Because of the nature of social media, the images remained in circulation long after the events transpired. Such pictures floating around can have downstream consequences for the people posted when seeking employment and housing for years to come, which is especially egregious when the mugshot is related to First Amendment protected activity and/or when charges are later dismissed.
   
   “The events that transpired in Berkeley, California are a particularly instructive example and one which received national attention. In August of 2018, ‘free speech protests’ came to the university town and protesters and counterprotesters squared off in the city’s Civic Center Park. The counterprotesters were characterized by the Berkeley Police Department as ‘anti-fa’ or antifascistic protesters who believed they were responding to a white-supremacist oriented attack on the city which has been famously liberal over the years in its politics. After some street scuffles, a number of counterprotesters were hit with charges that were never actually pursued and had their arrest images posted on the Berkeley Police Department’s Twitter account. Police department emails later secured by Berkeley Copwatch and the Lucy Parsons Lab in Chicago showed that the stated intent of the postings was to create a ‘counter narrative’. The emails further revealed that the police department had internally celebrated the number of retweets the postings had received. Arrest photos of 20 people were retweeted more than 8,000 times.
   
   “The department policy of posting mugshots to their Twitter account was restricted to events characterized as protests. While at the time of arrest, charges such as weapons and assault were offered up, it was later revealed that the weapons in question were scarves, bandanas and protest signs and that no significant injuries had taken place. Charges were either never filed or dismissed against all 20 people who had their arrest photos immortalized on Twitter. After a national outcry4, the local City Council moved to end the policy and AB 1475 followed.
   
   “Assembly Bill 994 strengthens the work done in AB 1475 in three specific ways.
   
   “Firstly, it erases the distinction between being charged with a nonviolent crime and being charged with a violent crime for the purposes of the protections offered in the bill. This is a correct identification that initial charges in first amendment-related events are often overstated and can be punitive in nature and in many cases are rapidly dropped or dismissed. The bill removes an incentive for overcharging in order to retain the ability to post a mugshot. AB 994 correctly links the available exemption to what matters: whether or not there is a clear public interest in posting the mugshot due to an imminent threat to the public that could be alleviated by posting the mugshot. There is no other public interest in posting a mugshot on social media.
   
   “Secondly, AB 994 states that if it is found necessary to post a mugshot on social media, it is the responsibility of the posting entity to use the correct pronouns for the individual and not to deadname them.
   
   “This is an important protection for people in transition, who may have different levels of openness in different sectors of their lives about their gender assignment at birth and avoids unanticipated collateral damage from a posted mugshot that can endure long beyond the particular arrest in question.
   
   “Thirdly, AB 994 restricts the posting period to a maximum of 14 days and removes the impetus for removal from the individual whose mugshot was posted. Under AB 994, people whose mugshots were posted do not have the burden of specifically requesting a takedown. Instead, it happens by default after a maximum of 14 days.”
   
4. Argument in Opposition: According to the California Law Enforcement Association of Records Supervisors (CLEARS), “The law being amended by this bill was only created in 2021 and didn’t take effect until last year. AB 994 seeks a significant expansion of a law that was negotiated to address many of the concerns that were raised during the debate. This bill rejects the limitation that was included in current law to keep the bill’s reach to nonviolent crimes. The ability to post booking photos, while being restricted, left the door open for government to balance privacy considerations and the interest in communicating with the public about those who are accused of committing serious and violent crimes. AB 994 would prevent the posting of booking photos of a person arrested for a violent crime unless very specific and limited conditions exist.”
   
5. Prior Legislation:
   
   1. AB 1475 (Low), Chapter 126, Statutes of 2021, limits a police department and sheriff’s department from sharing mug shots on social media.
      
   2. SB 1027 (Hill), Chapter 194, Statutes of 2014, prohibited a person or private entity from soliciting or accepting a fee to remove, correct, or modify a booking photograph.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association (CPDA)
Oakland Privacy

Opposition

Arcadia Police Officers' Association
Burbank Police Officers' Association
California Coalition of School Safety Professionals
California Law Enforcement Association of Records Supervisors (CLEARS)
California State Sheriffs' Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Palos Verdes Police Officers Association
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Upland Police Officers Association

Analysis Prepared by: