Editor's note: Legal Analyst Dan Eaton stated that California's new bullet-stamping law went into effect on January 1. However, the Department of Justice must first certify that the technology exists and is available. It has not done that yet. We regret the error.
Tuesday, January 5, 2010
The New Year always brings some new laws with it. We'll examine a sampling of the most interesting new laws in California with These Days legal analyst Dan Eaton.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. From seals in La Jolla to paparazzi in your backyard, there are hundreds of new laws that have gone into effect in California this new year. In total about 700 new laws, which is, surprisingly, a much lower number than usual. And some of the new state laws in 2010 were actually passed by the legislature a year or so ago. Joining us to talk abut the new year's new laws is These Days legal analyst Dan Eaton. And Happy New Year, Dan.
DAN EATON (Attorney/KPBS Legal Analyst): Happy New Year, Maureen.
CAVANAUGH: Well, let’s talk about the one that really affects…
CAVANAUGH: ...San Diego the most. To recap, sometime in the 1990s or before, a group of seals adopted what had been designated and used as a children’s pool in the La Jolla beach area. Now some are – advocate for the seals to stay, some say the animals should be evicted so that the site can be returned to children, as Ellen Scripps, who donated the funds to establish the site, intended. Well, now the legislature has taken the matter out of the hands of the courts, put it into the hands of the San Diego City Council. So, Dan, what did state lawmakers do?
EATON: Maureen, this was about clarifying what the city’s responsibilities over these tidelands really was. There was some confusion about that and so Christine Kehoe, up in the state legislature, proposed this new law. And what it does is, it clarifies the law that says, look, a marine mammal park for the enjoyment and education of children is one of the permissible purposes before – for this, what’s been called the Children’s Pool. Before that, that was not one of its specific purposes, that the City was allowed to use the area for. They were only allowed to use it for a children’s pool and certain other pools and, of course, Mrs. Scripps wanted it only used for a children’s pool so that children could learn how to swim in shallow water. But that’s really what’s going on here and it clarifies. And the idea is it doesn’t say, look, City, you have to use it for seals, it doesn’t say, City, you have to use it for children. It does say to the city council it’s really up to you. Now, I have to say this because I read the legislative analyses for all of these laws. The legislative analysts, those wacky people in Sacramento, said, quote, the unavoidable pun is that this law does not seal the fate of the Children’s Pool.
EATON: Unnh, it is avoidable. Just don’t write it. Resist the temptation. Don’t put that in there.
CAVANAUGH: No puns in legal opinions.
EATON: So, oh, gosh, the pun was clearly intended but it really just kicked it to the city council, which apparently, according to the Union-Tribune, has shown no interest in changing anything. So the – changing anything with respect to the Children’s Pool so, therefore, the seals presumably will remain.
CAVANAUGH: Does this new law from the state legislature maybe circumvent some of the court actions that have been going on?
EATON: It could because it removes the ambiguity over whether the City has some sort of responsibility over the tidelands to keep it as a children’s pool as Mrs. Scripps intended when she donated the money for it back in 1931. Remember, the state courts were saying you’ve got to evict the seals and the federal courts were saying you can’t evict the seals. So, literally, the City was between a rock and a hard place. I guess, under the circumstances, that’s a bit of a pun, too, so I apologize to our listeners. But the idea is, look, litigation could continue, it could, and the legislative analyst agrees with that but what this is designed to do is to eliminate at least one avenue or one major, major issue in dispute over the City’s responsibility.
CAVANAUGH: And that major issue is that it does actually give the city council, if they want to, it gives them the right to decide that the seals could be allowed to stay.
EATON: That’s exactly right. And question – of course, some people would question whether that is legal given the express intention of Mrs. Scripps but, nonetheless, the law says—and they apparently got some sign-off from the legislative analyst—that this was a permissible way to amend the City’s tidelands responsibilities.
CAVANAUGH: Let’s move on to one that – a new law that is so wrapped up in our current state of economic crisis, it’s really sort of sad. Retailers may now offer special discounts to those suffering from the loss of a job or wage income without fear of being sued for violating the civil rights of those who are employed. Now, was – so it’s considered so important it was designated urgent legislation and became effective when the governor signed it on November 2nd of last year rather than being effective this past January first. Why did they even need this law, Dan?
EATON: Why do you need this? I mean, civil rights? I’m not sure I understand that. The reason they needed it, frankly, was because a lawyer wrote a letter to a Squaw Valley ski lift who was offering furlough days for unemployed state workers, saying that perhaps that that – those furlough days were – state workers were subject to furloughs were getting a break. Could be considered, quote, arbitrary discrimination under the Unruh Act. Now, understand that the Unruh Civil Rights Act, our state’s civil rights law, identifies a series of groups or categories that you cannot discriminate against such as race and religion and so forth. But the courts, California courts, have extended that to prohibit any kind of arbitrary discrimination without a business justification. So this new law was designed to say, look, if you’re cutting a break for the unemployed, that is not considered arbitrary discrimination that violates the civil rights law.
CAVANAUGH: But we had to have a new law for it.
EATON: We did, and what the California Chamber of Commerce said in supporting the law—by the way, they joined with the California Trial Lawyers Association, talk about strange things -- California Consumer Lawyers Association, I think is what the group calls itself, and talk about strange bedfellows. But the Chamber of Commerce said, quote, we believe that it’s imperative that these businesses are protected from unwarranted lawsuits brought by lawyers inappropriately seeking benefit from the generosity and compassion of businesses in this economic downturn, close quote. Now, that’s a – that’s kind of a dig at the lawyers, of course, but…
EATON: …we have tough skins and it is important, obviously, because these businesses should be able to extend this break to the – those suffering wage loss.
CAVANAUGH: I think one of the most surprising things about this is I haven’t even seen any retailers offering discounts for the unemployed.
EATON: Oh, I think there are. Maybe we don’t see it here but I think they are up and down the state and, obviously, the legislature generally tries to avoid legislating in a place where there isn’t a problem. So they have felt – they at least felt the need that as this economic crisis goes forward, for the unemployed or those who are suffering major wage losses are able to get a break from their local retailers if the local retailer wants to give it to them.
CAVANAUGH: Another new law that’s now in effect in California some people would say was way past due. This is a microstamping bullet casings requirement. The proposal was enacted way back in October of 2007 and the idea is to make it easier to trace bullets shot from a semi-automatic pistol, but it didn’t become effective until this January first and why is that, Dan?
EATON: Well, technology has to catch up because what it requires is that these semi-automatic pistols have to be designed and outfitted with some sort of technology that allows the make, model and serial number to be transferred or stamped onto bullet casings that come from those particular guns. So you have to give the manufacturers and the retailers and so forth some time to catch up technologically so this kind of technology can be used. Now, of course the idea is that if you have all of this information about the gun from which the casing came, it’ll be easier to trace the perpetrator and whoever shot the gun and maybe that’ll make it easier to solve crimes.
CAVANAUGH: And this is the bullet casing, not the bullet itself.
EATON: No, the bullet casing.
EATON: So the bullet itself would have presumably done the damage.
CAVANAUGH: I see. I see what you’re saying. And so – And what – Does this only affect guns sold now? Or is it retroactive in any way?
EATON: Oh, no, it goes into effect now. For example, if you sold it before, like when the law was passed, you wouldn’t be in trouble but starting January 1st, 2010, it really does go into effect and now all guns sold have to have this specially fitted technology.
CAVANAUGH: Well, this particular law is very important for you, Dan, I know. It concerns about paparazzi.
EATON: Oh, yeah, please, give me my space, right.
CAVANAUGH: California legislators have moved to protect celebrities and private citizens…
CAVANAUGH: …who’ve been the object of media interest due to circumstances beyond their control. The governor, who signed the law, has undoubtedly been a subject of this so-called paparazzi.
CAVANAUGH: What does this paparazzi law do?
EATON: What it does is it makes those who use illegal means such as trespass to get audio or visual recordings, whether photographic or videotape, of celebrities or private individuals who are subject to media attention, it subjects them to fines of up to $50,000 for using illegal means to get that image. What’s more, though, it makes these – it makes people subject to fines who broadcast these images knowing that they were illegally obtained as set forth in the law. So the idea, Maureen, is to cut off the financial incentive for the capture of these images through ways that put people, according to the author of the law, in harm – in fear of their very safety and intrude on their, what they call, personal or familial, closed quote, privacy. Now, familial just means family related. Why couldn’t they just say that? I’ve got to love legislative draftsmen. So that’s what this is designed to do. It doesn’t prevent, understand, the capture of these images but it prevents their capture by illegal means such as through souped-up, special high-powered lenses or through trespass itself.
CAVANAUGH: Doesn’t that impact so much of the paparazzi material that you see on tabloids and shows? Doesn’t this potentially affect an awful lot of that business?
EATON: It could but, of course, a lot of them will say we don’t do this illegally. In fact, that’s what a lot of them said in response to this bill. They shrugged their shoulders and yet, Maureen, you can expect that there will be a constitutional challenge to this law. Why in particular? Because there’s a real question about whether especially those who broadcast illegally obtained material can be punished for doing it consistent with the First Amendment in California’s own free speech protection.
CAVANAUGH: Is there any designation of what is legal and illegal when it comes to getting these photographs?
EATON: Oh, yeah. No, they spell out rather specifically what kinds of illegal activity they’re talking about, actual trespass, what’s called constructive trespass, and so on into the invasion of a sphere that somebody has a reasonable expectation of privacy over. They also do define personal and familial activity as, quote, intimate details of the individual’s personal life interactions with the individual’s family or significant others or other aspects of the individual’s private affairs or concerns. Now, you know, what exactly does that mean? But, nonetheless, it gives you a sense of what the law is trying to cover.
CAVANAUGH: Now, I wonder, would someone have to initiate an arrest of some kind? I mean, would could bring this action against the paparazzi?
EATON: Well, the most logical person to bring the action, of course, would be the person whose privacy was invaded, such as a private individual or celebrity. The bill also allows city attorneys to file suit to get these civil fines, which include not only the fine up to $50,000 but also potentially triple damages. Triple the actual damages that the person suffered because of this invasion of privacy.
CAVANAUGH: But you foresee, perhaps, a lawsuit, a First Amendment lawsuit?
EATON: Oh, yeah, sure. There will be – I suspect there will be a constitutional challenge to it and then the first – either there will be a challenge to it right away without waiting for the law to be enforced, or it will be – a constitutional defense will be mounted the first time the law is sought to be enforced either by a city attorney or by a celebrity who seeks to take advantage of the law.
CAVANAUGH: I don’t know if TMZ is shaking in their boots or not.
EATON: Well, a lot of their – a lot of these outfits are simply shrugging their shoulders, saying we don’t do illegal stuff so we’re not concerned.
CAVANAUGH: Well, let’s go back to another one, an old friend of ours on These Days, a good legal topic that we’ve talked about on more than one occasion: betting pools.
EATON: From seal pools to betting pools, that’s right, exactly right. Betting pool. The last time we talked about it, of course, the governor had vetoed this same legislation saying we need to focus on more important things. But finally, just in time for the NFL playoffs—go Chargers—the governor did sign the law and now it’s in effect on January first. And what it does is it sharply reduces the penalties where you are participating in betting pools that have total amount of stakes no more than $2500.00. No more than $2500.00 of stakes. If you go beyond that, you’re looking at more serious potential problems criminally. But what this does is it lowers it to an infraction, which is the lowest level of crime. Felony, misdemeanor, and then infraction. And it makes you subject, potentially, to a $250.00 fine. You should understand, Maureen, however, that prosecutors’ resources are stretched in these budget crises so they have limited resources to go after these kinds of – this kind of conduct. But, nonetheless, to the extent that people do go after them, prosecutors do go after them, the maximum fine now is $250.00.
CAVANAUGH: I would suggest, however, that a lot of people don’t even realize that betting pools of any kind are illegal in any way.
EATON: Well, no, or if they do, the attitude is, well, no harm, no foul and so forth.
EATON: And this – really, this law came about because the Assemblyman who proposed it said that one of – somebody in his district had actually been prosecuted for holding this sort of a betting pool from the family-owned bar and so forth. And out of anecdotes come legislation, so that’s why we have this new law and the governor did sign it.
CAVANAUGH: Okay. All right, and as you say, just in time for the playoffs.
EATON: Exactly. Go, Chargers.
CAVANAUGH: I want to thank you so much. We’re out of time, Dan, but you’ve clarified a lot of new laws for us. Thanks so much for coming.
EATON: Sure. Thank you very much, Maureen, and I hope you have a great 2010.
CAVANAUGH: I hope you do, too. Thanks so much.
EATON: Thank you very much.
CAVANAUGH: And you’re listening to These Days. Coming up, we’re going to be talking about the benefits and the ethics of a new technique called deep brain stimulation. That’s ahead as These Days continues here on KPBS.