By Alexander Martin, esq.
Social Media is a tool that can rapidly get crucial information to the viewer in an instant. It can also provide false or misleading information in an instant.
Police departments are constantly battling the balancing act that is protecting the safety of the public and protecting the interests of having a fair trial for the accused.
Societies have overwhelmingly voted in favor of more information being released so long as it does not affect that individual person. However, there will always be an individual that is affected – the accused.
In a world where a person is guilty until proven otherwise, there would be no concern for a Police Department to splatter and plaster photos of a suspect all over town, including the internet. Fortunately, we do not live in such a barbaric society.
The California Legislature recently addressed this issue by redefining the rules for law enforcement postings of suspects as a result of this legal question. California Penal Code 13665 became law on January 1, 2024.
Penal Code 13665 states:
a) A police department or sheriff’s office shall not share, 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.
(b) With respect to an individual who has been arrested for any crime, including crimes defined in subdivision (c) of Section 667.5, a police department or sheriff’s office that shares, on social media, an individual’s booking photo shall do both of the following:
(1) Use the name and pronouns given by the individual. 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 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.
(2) Remove the booking photo from its social media page within 14 days unless any of the circumstances described in paragraphs (1) to (3), inclusive, of subdivision (a) exist.
(c) Subdivision (b) shall apply retroactively to any booking photo shared on social media.
(d) For purposes of this section, the following terms have the following meanings:
(1) “Nonviolent crime” means a crime not identified in subdivision (c) of Section 667.5.
(2) “Social media” has the same meaning as in Section 632.01, except 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.
The key takeaways from this new law are that Law Enforcement can NOT publically post images of a suspect of a “non-violent” crime unless one of three exceptions exists:
1) suspect is a fugitive
2) there is a Court Order in furtherance of a Legitimate Law enforcement Interest, or
3) there is no time to get a Court Order and ultimately there was a Legitimate Law Enforcement Interest.
The second part of the code states that Law Enforcement may post images of the suspect so long as they are being suspected of a “Violent Crime”. However, the post must be taken down after 14 days unless there is a Legitimate Law Enforcement interest.
These rules set in place the idea that Law Enforcement cannot try their case in the public, thus tainting the fairness of an actual trial. Gone are the days of publicly shaming a person into admitting a crime they did not commit because they are viewed as guilty until proven innocent because of the powerful affect a mug shot posted by law enforcement can have on one person.
Law Enforcement will always make an attempt to taint the minds of potential Jurors – luckily the Legislature has caught on and made corrective measures.
