California Criminalizes Phototaking By Emergency Responders

The State of California has become the latest state to enact a law making it a criminal offense for a first responder to take certain photos at emergency scenes. Introduced in the California Legislature under the title of “Invasion of privacy: first responders”, the legislation was signed into law by Governor Gavin Newsom on September 28, 2020.

The law makes it a criminal offense for first responders to take a photograph of a deceased person at an accident or crime scene except for official purposes. It was the state’s response to public outrage following the revelation that first responders took and released photos from the Kobe Bryant helicopter crash on January 26, 2020.

The term first responder is defined to apply to police officers, firefighters, EMS personnel, emergency managers, and employees of the coroner. The law becomes effective January 1, 2021 and makes a violation punishable as a misdemeanor with a fine of up to one thousand dollars ($1,000) per violation.

Here is the text of the law:

California Penal Code § 647.9. Photographing of a deceased person by first responder for any purpose other than an official law enforcement purpose or a genuine public interest

(a) A first responder, operating under color of authority, who responds to the scene of an accident or crime and captures the photographic image of a deceased person by any means, including, but not limited to, by use of a personal electronic device or a device belonging to their employing agency, for any purpose other than an official law enforcement purpose or a genuine public interest is guilty of a misdemeanor punishable by a fine not exceeding one thousand dollars ($1,000) per violation.

(b) An agency that employs first responders shall, on January 1, 2021, notify its employees who are first responders of the prohibition imposed by this section.

(c) For purposes of this section, “first responder” means a state or local peace officer, paramedic, emergency medical technician, rescue service personnel, emergency manager, firefighter, coroner, or employee of a coroner.

Here is a downloadable copy:

Connecticut and New Jersey have similar types of laws, although they vary greatly in the specifics. In fact, California’s law may well be the narrowest of the three since it only applies to photos of deceased bodies, and does not criminalize the dissemination of the imagery through social media. Both the Connecticut and NJ laws also apply to live victims and make it a separate offense to share the imagery.

Here is Connecticut’s Law, known as Joshua’s Law

Sec. 53-341c. Unauthorized taking or transmission by first responders of images of crime or accident victims.

Any peace officer or firefighter, as those terms are defined in section 53a-3, or any ambulance driver, emergency medical responder, emergency medical technician or paramedic, as those terms are defined in section 19a-175, who responds to a request to provide medical or other assistance to a person and, other than in the performance of his or her duties, knowingly (1) takes a photographic or digital image of such person without the consent of such person or a member of such person’s immediate family, or (2) transmits, disseminates or otherwise makes available to a third person a photographic or digital image of such person without the consent of such person or a member of such person’s immediate family, shall be fined not more than two thousand dollars or imprisoned not more than one year, or both.

Here is New Jersey’s law, known as Cathy’s Law

§ 2A:58D-2. Definitions relative to invasion of privacy relative to first responders; violation, penalty; liability, civil action, damages

a. As used in this section:

“Disclose” means to sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, or offer.

“First responder” means a law enforcement officer, paid or volunteer firefighter, paid or volunteer member of a duly incorporated first aid, emergency, ambulance, or rescue squad association, or any other individual who, in the course of his employment, is dispatched to the scene of a motor vehicle accident or other emergency situation for the purpose of providing medical care or other assistance.

b. A first responder who is dispatched to or is otherwise present at the scene of a motor vehicle accident or other emergency situation, for the purpose of providing medical care or other assistance, shall not photograph, film, videotape, record, or otherwise reproduce in any manner, the image of a person being provided medical care or other assistance, except in accordance with applicable rules, regulations, or operating procedures of the agency employing the first responder.

c. A first responder shall not disclose any photograph, film, videotape, record, or other reproduction of the image of a person being provided medical care or other assistance at the scene of a motor vehicle accident or other emergency situation without the prior written consent of the person, or the person’s next-of-kin if the person cannot provide consent, unless that disclosure was for a legitimate law enforcement, public safety, health care, or insurance purpose or pursuant to a court order.

d. A person who knowingly violates the provisions of subsection c. of this section shall be guilty of a disorderly persons offense.

e. In addition to any other right of action or recovery otherwise available under the laws of this State, a first responder who knowingly violates the provisions of subsection b. or c. of this section shall be liable to the person whose image was taken or disclosed, who may bring a civil action in the Superior Court.

The court may award:

actual damages, but not less than liquidated damages computed at the rate of $1,000 for each violation of this act;

punitive damages upon proof of willful or reckless disregard of the law;

reasonable attorney’s fees and other litigation costs reasonably incurred; and

such other preliminary and equitable relief as the court determines to be appropriate.

If this topic is of concern to you, please consider attending the upcoming program: Drafting and Implementing an Effective Digital imagery Policy for Fire Departments. It will be held as a webinar on January 13, 2021 from 1:00PM to 4:00PM Eastern, followed by an optional Zoom meeting. For more information CLICK HERE.

The program will cover these laws, the key cases that led to the laws, and lessons learned that will help you develop a sound and reasonable digital imagery policy for your organization.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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