California has officially entered its second week of Black Lives Matter protests related to the death of George Floyd. Unfortunately, a lot of protesters have been arrested -including many who did not break the law and were just in the wrong place when laws did start to get broken. If you’re planning to attend some of the protests this weekend, this legal guide can help you prepare by letting you know about the many charges being brought up against protesters as well as your rights when it comes to filming the police and whether or not it’s legal for police to turn off their body cameras and hide their badge numbers.
Can Police Turn Off Body Cams or Hide Badge Numbers?
The Black Lives Matter protests in San Diego and across the country have led many people to ask “is it legal for police to hide their badge numbers?” And “Can police legally turn off their body cams?” While it seems like these actions should be illegal since they purposefully reduce transparency between the police and the public, the reality is that while it is against policy, it is not against the law. This means that while police can be subject to discipline for hiding their badge numbers and shutting off their body cameras, up to and including termination from the department, they cannot face criminal charges to do so, even if they did something highly questionable afterwards.
It is worth noting that there are situations where police are allowed to disable their body cameras, but they must fully document the incident as well as the reason they disabled the device or face potential disciplinary measures. Since it is unlikely there would be a valid reason not to record interactions with protesters, this exception would be unlikely to apply during the current situation.
Your Right to Film the Police
It’s always good to know your rights when dealing with the police before you encounter them, especially when attending a protest that was sparked by police brutality. The fact that many police are hiding their badge numbers and turning off their body cams is another reason why it is a good idea for people who see a police officer acting in a questionable manner to film the police whenever possible. This activity is entirely legal as long as you are in a public space (or have the permission of the property owner) and make the face that you are filming obvious by holding your phone out or even saying “I’m recording this.” Be aware that the police can legally tell you to back up and you must observe this order or face arrest. If you are detained or placed under arrest for any other reason, the police can order you to stop filming.
If you can, use a cloud server to automatically back up your footage. The ACLU has an app that uploads footage as it is shot and sends it to their offices to be reviewed. The police cannot legally tell you to delete the footage, erase it themselves or break your phone, but if an officer is willing to break the law in front of the camera, they may be willing to break it again to hide the evidence. Also remember that police cannot search a locked phone without a warrant, so use a lock screen and do not unlock your phone at an officer’s request or this may be considered consent to search your phone.
Rioting During the Protests
Some of the most talked about crimes that have been perpetrated by protesters as well as agitators that might not even support the Black Lives Matter movement include rioting, looting and arson. Because police often arrest innocent protesters trapped in the fray while these actions are taking place, prosecutors do not usually press charges against those who have been arrested unless there is actual evidence to prove the individual broke the law. Even then, many criminal lawyers are able to challenge the charges on the grounds that there is insufficient evidence to prove actual guilt. That being said, there is an increased likelihood of there being actual evidence of a crime in the central San Diego area (including Hillcrest, downtown, Normal Heights, Pacific Beach, Ocean Beach and La Jolla) or any other area where the smart streetlights fitted with cameras have been installed.
In California, rioting is defined as two or more people illegally using force or violence, disturbing the peace, or a threat to use force or violence if accompanied by the ability to immediately follow up on this threat. Inciting a riot is defined as encouraging others to riot, destroy property or commit arson, even if the person charged with the crime did not participate in the behavior themselves. Because the definition of rioting and inciting a riot is not the same as the public definition of rioting, many people are being charged with these crimes that most people would not normally consider having committed these acts. These two charges are misdemeanors, punishable by up to a year in jail, but judges usually only sentence those convicted to probation.
Looting During a Riot
When it comes to looting charges, this crime is a more serious form of theft that specifically takes place during an emergency situation (which can include a riot). The charges are very similar to petty theft, grand theft and burglary charges and are subject to minimum sentencing, unlike standard theft charges.
Petty theft involves taking property valued at under $950 and is punishable by up to six months in jail, but when looting is involved, there is a minimum sentence of 90 days. In California, grand theft occurs when the property stolen is valued at over $950 and can be a misdemeanor punishable by up to one year in jail or a felony punishable by up to three years imprisonment. When looting involves taking over $950 in goods, there is a minimum sentence of up to 180 days in jail. Burglary is defined as entering someone’s property with the intent to commit theft or a felony. It can be filed as a misdemeanor punishable by up to a year or a felony punishable by up to three years. When this occurs during an emergency, it is considered looting and carries a minimum sentence of 180 days.
While looting always has mandatory minimum sentences, the judge can waive these and sentence the defendants to community service instead. A San Diego lawyer supporting the Black Lives Matter movement may be able to help convince the judge to do this.
Committing Arson During a Riot
One of the most serious charges related to the Black Lives Matter protest in La Mesa was arson. Penalties for arson vary drastically based on the situation, particularly if someone was injured. In most cases that would occur during a riot, the bare minimum sentence would be up to one year in jail. But because most of these cases involve the intentional burning of a structure, the crime is a felony punishable by up to six years in prison and $60,000 in fines. If someone was injured, the sentence can increase to up to nine years and in many cases, the penalty can even include life imprisonment. These crimes are almost always strikes under California’s three strikes law and will leave you on an arson registry similar to the state’s sex offender registry.
Crimes Relating to Special Circumstances
There are some laws that only take effect in certain circumstances and many protesters are getting arrested for these crimes right now. That’s because the George Floyd protests are unique because they are taking place during a pandemic where mass gatherings of more than 50 people are illegal under California law and wearing a mask while within 6 feet of another person is legally required under San Diego County law. Additionally, many cities throughout the county, including La Mesa, Santee, National City, Poway, Coronado, Lemon Grove and many unincorporated areas such as Spring Valley and Lakeside have issued curfews.
These crimes are all misdemeanors. Failure to social distance or wear a face mask is punishable by up to six months in jail. But because the San Diego Sheriffs Department and San Diego Police Department willfully excluded protesters fighting the stay at home order from these rule in order to let them express their 1st Amendment rights, if they issued a citation to these protesters, the charges could be challenged on the grounds of selective enforcement.
Violating curfew in San Diego County is punishable by up to $1,000 in fines and six months in jail, but charges are rarely filed. That’s because many curfews are issued last minute (like the one in Santee that was issued only three minutes before it went into effect) so people often unknowingly violate the order. Because most people arrested for these crimes are protesters expressing their rights to free speech, the ACLU has actually filed suit to stop these curfews during the George Floyd protests, arguing that they are a government-supported method to suppress free speech.
Other Crimes Seen in the Black Lives Matter Protests
There are a lot of ways people can break the law, especially during a tense, highly-emotional event like a protest against police brutality that is faced with a wall of police officers. Two common charges against protesters are unlawful assembly, which is defined as a gathering that poses a clear and present danger if immediate violence, and failure to disperse, which is the failure to leave after being ordered to do so by the police. These are both punishable by six months in jail although most people arrested for these crime will never be formally charged.
Throwing objects is a common problem at protests and charges can include assault, battery, assault or battery on a police officer and throwing an object at a vehicle. Assault is the attempted use of violence, whereas battery is actual violence against someone. If an empty water bottle is thrown, assault charges could be filed, whereas if someone is hit by a rock, the person who threw it could be charged with battery. Spitting at the police can even be considered assault, while spitting on an officer can be charged as battery, especially during the coronavirus pandemic.
In most cases, assault is punishable by up to six months in jail whereas penalties for battery charges will vary based on the circumstances, particularly if someone was actually injured. As a misdemeanor, battery is punishable by up to six months in jail and as a felony, it can carry a sentence of up to three years in prison with up to three more years if someone was seriously injured. If the victim was a police officer, an extra six months of jail can be added to a misdemeanor charge or a year in prison can be added to a felony. Willfully throwing something at a car that can hurt someone is punishable by three years in prison and throwing something less likely to injure someone is punishable by up to six months in jail.
Vandalism is the destruction of property, which can include smashing a window or spray painting “Say His Name,” “Hand’s Up Don’t Shoot” or “I Can’t Breathe” on someone else’s property. Most cases of vandalism are charged as misdemeanors, punishable by up to one year in jail, but there are circumstances that make this crime a felony, most notably if there has been more than $400 of property damaged. In this case, the crime is punishable by up to three years in prison.
Arrests, Bail and the Coronavirus
Many people are donating to funds to have arrested black lives matter protesters released on bail. Fortunately, in California, most misdemeanor crimes require release with no bail under the “zero bail” rule implemented to the risk of coronavirus. Those who are arrested for violent felonies, including felony battery, felony arson, felony looting or felony assault or battery on a police officer, though are not automatically released under this law though and still must post bail. It’s also worth noting that for any crime, the prosecutor can choose to request a judge to deviate from the zero bail rule.
If you have been arrested during 2020’s Black Lives Matter protests in San Diego, the good news is, most people won’t face formal charges. If you are concerned though or if you are formally charged, please call Peter Liss at (760) 643-4050 to discuss your case during a free initial consultation.
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