Public Law

Public Law Journal: Spring 2020, Vol. 43, No. 2

Law Enforcement Use of Force and Surveillance—Public Law Section Webinar Resources

In today’s world, use of force and surveillance activities by law enforcement are subject to more scrutiny than ever-and in some cases, for good reason. If you are a public lawyer advising law enforcement clients, the Public Law Section has the following relevant webinar content for you. Please visit https://cla.inreachce.com/ to access content.

  • After the Critical Incident and Before the Litigation. Be prepared for the many issues that will arise even before your agency is sued. The panel will discuss their personal experiences dealing with the multitude of issues that arose in the aftermath of a critical incident involving the shooting by a sheriff’s deputy of a 13-year-old Hispanic boy carrying a replica firearm in Sonoma County. Discussion will include such issues as invoking the critical incident protocol; issuing press releases and responding to media inquiries; dealing with elected officials; preparing for community protests and other actions; investigations by the District Attorney and the importance of coordination among involved agencies.
  • Body Worn Camera and Effective Deposition Preparation. This panel will discuss various body-worn camera policies and their impacts on preparing officers for depositions and testimony. This will include handling conflicts between reports and video recordings and techniques to effectively prepare officers for depositions and other related testimony. Participants will learn strategies for officer preparation, confidence building, and anticipated cross-examination, keys to a successful defense.
  • An Analysis of the Supreme Court’s Contribution to the Ongoing Concern of Excessive Force. This program covers how the Supreme Court has contributed to the problem of excessive police force in the United States.
  • Pursuit Policies: Compliance and Immunity in a Post-Ramirez World. The Supreme Court of California held that a public agency’s pursuit policy must include a written certification requirement under California Vehicle Code section 17004.7, but 100% compliance was not a prerequisite to receiving immunity from damages incurred from a vehicle pursuit. This panel will discuss what qualifies as compliance and how to demonstrate good faith efforts in developing effective pursuit policies.
  • Use of Force and Investigations. Use of force cases involve difficult forensic and evidentiary issues that are compounded by eyewitness testimony, cell phone videos, and other extraneous evidence.
  • Racial Identity and Profiling. Recent events have placed a spotlight on racial profiling by police. This session will address legal limitations governing the use of race by law enforcement and the impact of RIPA, the Racial Identity and Profiling Act of 2015 (AB 953, Gov. Code, § 12525.5.) The discussion will include RIPA’s stop data regulations requiring officers to identify race and other characteristics, a summary of the RIPA Board’s first report on racial identity and profiling, community perspectives on racial profiling, and best practices for compliance. The panel will also discuss practical considerations in implementing RIPA, including reducing racial profiling, defining a stop during crowded events, and the burden for officers in complying.
  • CalECPA’s (SB 178) Requirements and Impacts on Law Enforcement. In 2015, California passed the California Electronic Communications Privacy Act (CalECPA) placing the state at the forefront of digital privacy information law for law enforcement investigations. Participants will learn about CalECPA’s scope and requirements, including warrant requirements for compelling the production of electronic communication information from service providers and accessing such information on electronic devices. Attendees will learn about CalECPA’s application to electronic surveillance devices such as Stingrays (also known as IMSI catchers) to obtain communication content, geo-location data, IP addresses, and other metadata. Panelists will also address open issues and ambiguities in CalECPA and offer best practice advice in achieving compliance.

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  • Drone Technology, Existing Law, and Privacy Concerns. This session will examine developments in and use of drone technology. The panel will discuss the safety and privacy concerns raised by private-party drone use and the existing and proposed laws regulating its use by the FAA, as well as by local and state entities, including potential preemption concerns. The session will also address existing and proposed laws governing drones use by law enforcement, as well as the constitutional concerns uniquely raised by its use in law enforcement. The discussion will include the issues that remain unaddressed by the Legislature and the courts as this technology evolves. And finally, attendees will learn about recommended best practices in using this technology.
  • Surveillance and Data Collection and the Public Records Act. Enormous amounts of data are collected using various technologies including GPS, stingray phone trackers, police body cameras, and license plate trackers. This session will discuss the impacts of this data collection on the Public Records Act and application of the Act’s exception for records related to law enforcement investigations. The session will address preserving privacy when disclosing records, including names, home addresses, telephone numbers, email addresses, financial data, and social security numbers. Panelists will discuss potential liability for inappropriate or inadvertent disclosures, as well as best practices for retention and storage policies.
  • Surveillance Technologies and Fourth Amendment Privacy. This session will address the application of the Katz v. United States standard’s reasonable expectation of privacy as it applies to particular surveillance methods. Panelists will discuss its existing and anticipated applications to GPS, drones, as well as Automatic License Plate Readers (ALPRs), International Mobile Subscriber Identity ("IMSI") catchers (Stingrays), and police body cameras. The discussion will also include the overall future of the Katz standard as expectations of privacy are subject to rapidly developing technological capabilities and shifting expectations.
  • The Use of Police Cameras and Facial/Speaker Recognition Software. This session will explore the expanding use of police body cameras, its pros and cons, including recommendations for policies governing its use and oversight. Panelists will also discuss the public’s interest and related privacy concerns over whether this footage should be made public. The discussion will address best practices for using this technology, including storage and retention policies. Attendees will also learn about new technology related to facial and voice recognition software that may be integrated into the use of any kind of surveillance, including police body cameras. This discussion will include concerns about the accuracy of this software and legal concerns about potential racial profiling where this technology may be used to track known criminals before police have a reason to suspect any criminal conduct.

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