July 28, 2022 Shooting the Messenger: First Amendment Freedom of Speech and the Public Employee [View / Download]

By Robert Phillips, Deputy District Attorney (Ret).

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The First Amendment to the United States Constitution provides Americans with five basic freedoms: Freedom of speech, press, petition, assembly, and religion.  While all five are certainly important, the freedom of speech—sometimes referred to as the “freedom of expression,” and often recognized as the cornerstone of America’s democracy—is arguably the most cherished of the five.

Then along came “social media,” available to anyone with access to a computer and coming in a wide variety of forms; i.e. Facebook, Snapchat, Twitter, Instagram, and many others.  The advent of social media suddenly empowered the quietest and most introverted of citizens—to whom no one ever before paid attention—with the ability to broadcast his or her views—unpopular or not; truthful or not—around the world with the stroke of a computer key.  And along with this new-found uncontrolled power in the exercise of our freedom of expression—sometimes used without giving the words we use or the ideas we express a lot of thought—came the propensity for getting ourselves in trouble.

But we’re getting ahead of ourselves.  The purpose of this article is to discuss the sometimes contradictory, and most often confusing, case authority that has sought a balance between a public employee’s (including a prosecutor’s and a cop’s) First Amendment inherent freedom of expression, with his or her employer’s right to impose restrictions on that employee’s rights, at least when the challenged speech affects the employer’s smooth and efficient operation of his or her office.

One of the first cases involving a prosecutor getting herself into trouble by exercising what she believed at the time to be her constitutionally protected freedom of speech rights is the United States Supreme Court decision of Connick v. Meyers.(1983) 461 U.S. 138 [103 S.Ct. 1684; 75 L.Ed.2nd 708].

This is a "must read" and valuable resource for law enforcement officers and attorneys. 

CLICK BELOW TO READ THE FULL UPDATE (19 pages)

 

July 17, 2022 Miranda and the Law: The Fifth Amendment [View / Download]

Miranda and the Law:
The Fifth Amendment

A Legal Update by Robert C. Phillips, Deputy District Attorney (Ret).

July, 2022

Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602; 16 L.Ed.2nd 694]

OutlineThe following is divided into thirteen chapters:

Chapter 1The Fifth Amendment and Miranda

Chapter 2Custody

Chapter 3The Custodial Interrogation

Chapter 4Law Enforcement

Chapter 5Lawful Exceptions to the Miranda Rule

Chapter 6The Admonition

Chapter 7Invocation of Rights

Chapter 8Waiver of Rights

Chapter 9Voluntariness After Waiver

Chapter 10Juveniles & Miranda:

Chapter 11Public Employees Subject to Administrative Investigations

Chapter 12:  Appellate, Evidentiary, and Admissibility Issues

Chapter 13Suppression Issues and Procedures

Please click below to review/download the full Miranda publiciation.

July 17, 2022 First Amendment Right to Photograph/Videotape the Police and Confiscating Video Evidence [View / Download]

By Robert C. Phillips, Deputy District Attorney (Ret)

The Question:

I am periodically asked whether officers can legally seize from private citizens videotaped or photographed evidence depicting criminal acts.  Such videos or photos are commonly contained in a private citizen’s video camera, cellphone, or iPad.  The video or photographic evidence typically is recorded by an uninvolved private citizen (although it may be the suspect himself) who either happened upon the scene of some incident or is a participant in a public protest or demonstration.  The video or photo may be of a criminal act in progress or of an officer’s use of force upon a suspect, or both. 

The question I get is; “If the citizen objects, can I legally seize such photographic, video or tape-recorded evidence anyway?”  My answer to this question has for a long time been:  “I haven’t the faintest idea.”  But recently, we finally got a case on point that describes what we can do legally in such a circumstance.

Related to this problem is when a person is discovered videotaping or photographing the entrances or exits to a police facility or some on-going police activity.  The temptation is to stop that person and find out what he is doing and why, or even impede the person in his videotaping efforts.   Please click below to read the full bulletin.   

June 28, 2022 Constitutionally Protected Expressive Activity & the First Amendment: “Who Ya Gonna Call?” [View / Download]

Constitutionally Protected Expressive Activity & the First AmendmentWho Ya Gonna Call?”
Robert C. Phillips
Deputy District Attorney (Ret.)
*UPDATED JULY 2022*

Note: This fifty page special update is available exclusively to our Professional subscribers.  It has been described as a "must have" for prosecutors, law enforcement officers (especially supervisory personnel) and judicial officers.  If you are not a Professional subscriber, please consider upgrading now.  After logging into our website, please click here to view our plans and current promotion.  Thank you for your support,

We commonly encounter situations where a person is using a cell phone to record our actions in field. As well, we respond to merchant complaints of demonstrators, solicitors, pamphlet distributors, etc. outside a business. For over thirty years, Mr. Phillips historical research and legal writing has provided peace officers with the most practical, field-specific and updated information to fulfill their legal, moral and ethical responsibility to protect the rights afforded to citizens by the United States Constitution.

The situation is not at all uncommon:  An individual business owner, security official for a large shopping mall, or store manager representing a major retail chain store such as (but not limited to) Costco, Wal-Mart or Target, complains to law enforcement that demonstrators, signature collectors, pamphlet distributors, an organization soliciting funds for themselves or for a charity, a panhandler, or some other politically, socially, or religiously motivated individual or group of individuals has set up a table on their property near an entrance to a store.  Such persons, while on the mall or the store’s “private property,” and commonly in violation of some of the mall’s or store’s rules established to control or prohibit such activity, are generally attempting to communicate to store patrons some political, social, religious, or otherwise controversial viewpoint.

            In such a situation, the mall or store representative will typically call for law enforcement’s assistance in evicting the offending individual(s), demanding that the responding police officer tell them to leave or, in the alternative, arrest them for trespassing.  Should the officer balk at doing so, the complainant can be expected to wave around a ream of important looking documents purporting to be case law saying that what the “trespassers” are doing is “illegal.”[1]

The mall or store representative might also insist that he or she is going to make a citizen’s arrest and, pursuant to Penal Code § 142, the officer is required by law to accept the arrestee even if the officer does not agree with the wisdom or legality of doing so. 

Another related situation might be where a citizen is attaching leaflets to parked cars; an activity prohibited by some city and county ordinances as a form of littering as well as an intrusion on one’s private property.[2]  Or, the problem might be the all too often occurrence of illegal alien day-laborers soliciting employment or other favors from the mall’s or store’s parking lot or at an adjacent curb of a public thoroughfare.[3] 

Similarly, when a panhandler plops himself down in front of a store soliciting monetary handouts, store owners fear that such an unsightly or odorous individual might scare away potential customers.[4]  Such a person is typically homeless (or at least represents himself to be homeless), shabbily dressed, and at the very least, annoying to the store’s regular customers.

Another possible situation might be when a “sidewalk vendor” insists on selling his or her wares, be it food or merchandise, from either a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance, or perhaps from one’s person, upon a public sidewalk or other pedestrian path in front of the complaining party’s store, or in a public park.[5]

So what should the police officer do when confronted with any one of these situations?  Click below to read the full bulletin.

 

[1]              E.g., Lloyd Corp. v. Tanner (1972) 407 US. 551 [92 S.Ct. 2219; 33 L.Ed.2nd 131];

                Diamond v. Bland (1974) 11 Cal.3rd 331; and

                Costco Companies, Inc. v. Gallant (2002) 96 Cal.App.4th 740

                Ralphs Grocery Company v. Victory Consultants, Inc., et al. (2017) 17 Cal.App.5th 245

[2]              See Klein v. City of San Clemente (9th Cir. 2009) 584 F.3rd 1196

[3]              See Comite De Jornaleros De Redondo Beach v. City of Redondo Beach (9th Cir. 2011) 657 F.3rd 936

[4]              See P.C. § 647(c)

[5]              See Gov’t. Code §§ 51036 et seq.

 

March 10, 2022 The Fourth Amendment Search & Seizure (Twenty-Second Edition) 2022 [View / Download]

Now available for all professional subscribers and attached hereto is the annual, 22nd Edition, Fourth Amendment Search and Seizure Outline.  This Outline, in 1,852 pages, represents over three decades of the author’s efforts in collecting and analyzing must-know statutes and case law in the field of Fourth Amendment search and seizure law.  A working knowledge of the contents of this Outline is a must for all law enforcement officers, prosecutors, defense counsel, judges, law students, and anyone else interested in the vast and often confusing world of search and seizure.  The purpose of this Outline is to provide the reader with a single, reliable, and complete source for obtaining that knowledge.

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December 29, 2021 New and Amended Statutes Edition (Effective January 1, 2022) [View / Download]

Happy New Year to all of our subscribers. It has been an exciting year for us at Legal Updates (legaludpates.com®).  In addition to launching our upgraded website, we have assembled a “dream team” of faculty that will be joining legalupdates.com® starting in 2022. These legal and educational professionals will be offering law summaries and articles titled, “From the Deputy D.A. Desk”, “From the Classroom”, “From the Patrol Car”, and “From the Civil Liability Desk” and will undoubtedly bring unparalleled knowledge to our subscribers. Please stay tuned for introductions of our newest faculty in the days ahead.

Our legislators were very busy in 2022.  These changes will impact your profession.  Retired Deputy District Attorney Robert Phillips has been closely monitoring these new and/or amendments to these laws – just he has for over thirty years.  Mr. Phillips just finalized the 2022 New and Amended Statutes Edition – comprised of eighty-three pages of relevant material. This edition is routinely one of our most sought-after publications of the year and has been described as a “must have” for law enforcement officers, attorneys and judges.  

Please click below to receive a copy of the New and Amended Statutes (2022 Edition) – exclusively available at no cost to our Professional subscribers that support our website. If you are not yet a Professional subscriber, we encourage you to consider upgrading. Your subscription (currently on promotion for only $7.50 per month – a quarter a day) provides you full unlimited access to our site and materials and supports our additional faculty, research, and publication costs to expand timely legal update services to each of you.

To upgrade, please login to our site and click here to view our Professional plan and upgrade to Pro. We truly appreciate your support.

Thank you for your service & stay safe!

-Legal Updates Team

LAWS CHANGES IN 2022 COVERED IN OUR CURRENT UPDATE:

  • Abortion Clinics
  • Arrest Warrants
  • Cannabis (Marijuana)
  • Child Abuse 
  • Contempt of Court 
  • Courtrooms
  • Courtroom Trial Procedures
  • Domestic Violence and Gun Violence Restraining and Protective Orders 
  • Elder and Dependent Adult Abuse
  • Elections
  • Emotional Support Animals
  • Environmental Law 
  • False Police Reports
  • Firearms  
  • Gang Cases
  • Hate Crimes 
  • Human Trafficking
  • Law Enforcement’s Closure of Listed Areas
  • Law Enforcement & Military Equipment 
  • Law Enforcement Policies and Procedures
  • Law Enforcement Use of Force 
  • Nunchakus 
  • Peace Officer Civil Liability 
  • Peace Officer Qualifications and Disqualifiers 
  • Peace Officer Personnel Records
  • Plea Bargaining 
  • Sex Offenses 
  • Theft
  • Vaccination Sites 
  • Vehicle Code 
  • Victims and Witnesses
February 01, 2021 (Part II) The Fourth Amendment / Search and Seizure Annual Update (Full Update) [View / Download]

Part II (Full Update) Our most sought after update of the year!  This must have outline has been prepared and published for the purpose of aiding law enforcement officers, police and private investigators, law enforcement administrators, prosecutors, the judiciary, other attorneys including but not limited to those engaged in the practice of criminal law, students, and legal educators and scholars, in accessing, using and
understanding the field of Fourth Amendment Search and Seizure Law.

February 01, 2021 (Part I) The Fourth Amendment / Search and Seizure Annual Update (Table of Contents Only) [View / Download]

(Part 1 - Table of Contents) Our most sought after update of the year!  This must have outline has been prepared and published for the purpose of aiding law enforcement officers, police and private investigators, law enforcement administrators, prosecutors, the judiciary, other attorneys including but not limited to those engaged in the practice of criminal law, students, and legal educators and scholars, in accessing, using and understanding the field of Fourth Amendment Search and Seizure Law.

 

January 07, 2021 New and Amended Statutes Edition (2021) [View / Download]

California and Federal laws have changed!    Stay current in the law with this this annual update "New and Amended Statutes" researched and prepared by retired Deputy District Attorney Robert C. Phillips.  This popular annual update is highly recommended for law enforcement officers, prosecutors, judges, private attorneys and students of law. 

 

January 01, 2020 New and Amended Statutes Edition [View / Download]

This popular annual update contains new and amended statutes for 2020.  A must have for prosecutors, law enforcement officers, judges and student of law.