Civil Rights | Dolan Law Firm

ADA and Voting

Q: Samy: May other people help me vote?

A: Samy, great question. You can choose 1 or 2 people to help you in the voting booth, but not your employer or union official. You can ask an election worker to help you, but, they must not influence you; you can ask or bring a sign language interpreter to help or call the County Elections Office before the election to request an ASL interpreter. You can also take your service animal to the polling place and into the voting booth.

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Q: Madison: My mother was appointed a conservator several years ago, can she vote?

A: Excellent question Madison. The short answer is your mom vote unless a judge ruled that you are not allowed to vote. When your mother was first assessed for a conservatorship, the court made a decision about whether she can vote. There are lots of ways to find out if she is eligible to vote:

Check the order appointing a conservator (look at the form with the number GC 340).
There is a section that says whether or not she is allowed to vote.
If the box on the form is not checked, then your mom is eligible to vote once she registers, she can vote.
If the box on the form is checked, then the court said she cannot vote.
If you cannot find your form GC 340, you can ask your conservator, the case manager at your regional center or call your county elections office to ask if she is eligible.

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Q: Jillian: Can I vote if I will not be able to vote in person and it is more than a week before Election Day?

A: Jillian, thanks for asking. Anyone can request a Vote-by-Mail ballot at least 7-days before Election Day, October 27, 2020, by filling out and returning the postcard on the Sample Ballot/Voter Information Guide, or by calling your County Elections Office. A complete list of all Elections Offices by county is located at: https://www.sos.ca.gov/elections/voting-resources/county-elections-offices/

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Q: Marley: How can I vote if I did not request a Vote-by-Mail ballot in time, but I cannot leave my home or am hospitalized because of a medical emergency?

A: Marley, despite the best laid plans’ life happens. California has special procedures for a voter hospitalized or in a care facility or cannot leave their home due to a medical emergency. If you registered to vote at least 15 days before Election Day and are not able to vote in person because of a medical emergency and it is less than seven (7) days before Election Day (the deadline for requesting a Vote-by-Mail ballot), you can request and complete an emergency medical ballot.

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Q: Romulus: What is an Emergency Medical Ballot and how does it work?

A: Romulus, thanks for asking, for the six days prior to an election, a registered voter who is unable to vote in person at a polling place or vote center due to confinement in a hospital, another facility or at home because of a medical emergency can fill out a form to authorize someone to go to the Elections Office to pick up a ballot for them. You may have another person help you read and mark your ballot. Others may not mark your ballot for you unless you ask them to do so.

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Q: Remus: What is a late vote-by-mail ballot?

A: Remus, If a voter is not able to vote in person at the polls and does not have a vote-by-mail ballot, the voter may apply in writing for a late vote-by-mail ballot. This application must be provided in person to the county elections official by the voter or the voter’s representative. The late vote-by-mail ballot must be returned personally or through the voter’s representative. The following link is a California Late Vote-By-Mail Ballot Application.

https://elections.cdn.sos.ca.gov/vote-by-mail/pdf/late-vote-by-mail-application.pdf

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Q: Jeff: This is an extremely important election and I want to make sure my vote counts. I have a disability want to know what services are available for me before I show up to vote.

A: Jeff, thank you for your question. Set forth below are links to election information for accommodations such as American Sign Language (ASL), accessible polling places listed by county, county early voting and drop box locations, large print, audio ballots, curbside voting and more.

Resources:

Disability Rights California operates a Voting Hotline to assist Voters with Disabilities. Please feel free to call for assistance: 1-888-569-7955.

Assistance for Voters with Disabilities

Polling place accessibility guidelines

Guide to Counties providing curb-side voting

Track your ballot

American Sign Language (ASL) assistance with ballot – ASL video ballot propositions

Large Print and Audio Voter Information Guides

Early voting and ballot drop box locations

Find your polling place

Written By: Christopher B. Dolan and Casey Hultin

This week’s question comes from Nancy B. who asks:

Q: I have read that there are unofficial ballot drop boxes. How do you know if a ballot drop box is real? And what do I do if I find out later that I dropped my ballot off at the wrong ballot drop box?

A: Dear Nancy,
Great question. You can check online to see the locations of official drop-off boxes in your area at caearlyvoting.sos.ca.gov. The California Secretary of State lists all the official ballot drop-off locations in your area. You can search in any city or county, or search for all drop-off locations within 10 miles of a particular address. The California Secretary of State also lists all services provided at that location (many ballot drop-off locations are also locations for early voting) and the hours during which the services are provided. You may have better luck searching using a specific address. When I searched with my zip code, only four different ballot drop-off locations popped up. When I searched by my address, I found 82 locations within 10 miles of my address (and the first ten options were all closer to my location than the 4 that appeared when I searched my zip code.)

The ballot drop-off locations listed online are updated frequently in the event there is a new official ballot drop-off location.

If you do not see a ballot drop box that you know of on the California Secretary of State website, it is likely an unofficial, unauthorized drop box. If you drop your ballot in one of the unofficial, unauthorized ballot drop-off locations, there is no guarantee that your ballot will be counted. If you have already placed your ballot in an unofficial, unauthorized drop box, and you are concerned whether your vote will be counted, you have a few different options.

You should first check to see if your ballot has already been accepted. You can check this on BallotTrax at california.ballottrax.net by signing up for a free account that shows the status of your ballot. You do not need to sign up prior to dropping your ballot off to receive updates. BallotTrax has your ballot information already. The website updates quickly and provides updates at different stages. For example, BallotTrax will tell you when your ballot is, “inbound,” and the postal service has indicated that they have your ballot and are returning it to your county elections office. The website also will tell you when your ballot has been received by county election officials and when county election officials have accepted your ballot. If you dropped your ballot off in an unofficial ballot drop-off location more than a week ago, and the website still does not reflect that the postal service is returning your ballot to county officials, that may be cause for concern.

If BallotTrax does not show that your ballot is in route to county officials, and you dropped off your ballot, you should contact your county election officials to ask what they prefer you do, as procedures for a lost ballot vary from county to county. Given we are already less than three weeks away from Election Day, the deadline will have likely passed to receive a new ballot in the mail. Instead, your county will likely ask you to vote via provisional ballot at your local polling place. Provisional ballots are used in situations where a person’s voting status has not been verified for some reason. They are carefully audited to make sure a person casting a provisional ballot is not voting for a second time. Provisional ballots are helpful in situations such as this one where a person is unsure their vote will be counted and wants to be sure they voted.

Christopher B. Dolan is the owner of the Dolan Law Firm. Casey Hultin is an Associate Attorney based in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

By Christopher B. Dolan and Vanessa C. Deniston:

This week’s question comes from Stella M. who asks:

Q: I am interested in volunteering as a poll worker in my county on Election Day, but I am concerned about the health & safety ramifications. Hundreds of people will likely be funneling through polling stations on November 3rd, while we are in the middle of a global pandemic. What steps are being taken to protect the health and welfare of both volunteers and citizens?

A: Dear Stella,

Thank you for your question. Your enthusiasm to volunteer is admirable, as is your healthy respect for the Covid-19 virus. First, you should evaluate if volunteering in person makes sense given your own health. If you are immunocompromised or otherwise fall into a high-risk group, in-person volunteering would pose a considerable risk. If poll working is too great a risk for you, there are a great number of ways to help get out the vote, such as phone banking, ensuring voters have a ride to the polls, helping by talking voters through the mail-in-ballot process, and assisting individuals in obtaining a valid ID.

If you are not in a high-risk category and you want to volunteer in person, the CDC has released guidelines to keep poll workers and citizens safe, though there will always be risk involved. The CDC recommends three strategies in helping reduce risks during the election process.

The first strategy is offering a wide variety of voting options, including: voting by mail, early voting or voting in person. In June 2020, Governor Newsom signed a law requiring counties to drop off mail ballots to every active registered voter, whether or not requested. Counties are also required to open one ballot drop-off location for every 15,000 registered voters 28 days before election day.

The second strategy is offering longer voting periods through early voting periods and longer operating hours on Election Day. Given the economic effects of the COVID-19 pandemic, venues traditionally used as polling places such as community centers, retirement homes and churches are harder to utilize safely. In August 2020, California Senate Bill 423 was approved giving counties the ability to merge precincts, as long as voter ratios remain intact. These consolidated polling places are required to be open from October 31, through Nov. 2 for at least eight hours each day and from 7 a.m. to 8 p.m. on Election Day.

The third method involves implementing rigorous safety protocols at polling stations. California’s Secretary of State has set out a number of measures to be taken before volunteers arrive at their assigned polling place as well as while they are volunteering. Poll workers must make every effort to stay healthy prior to service, including engaging in self-screening, temperature and symptom checks, frequent hand-washing and use of hand sanitizer, wearing a face covering, and observing social distancing guidelines leading up to service.

Once inside the polling place, poll workers should continue to take these safety measures. Polling stations should be configured to ensure traffic flow is conducive to social distancing guidelines and face-to-face interactions are minimized. Check in stations should be placed six feet apart from one another and floor markers should indicate appropriate distances as well as help directional flow. Voting booths should also be placed six feet apart from one another, as well as six feet apart from the check-in desk and scanner. Some sites with limited space may receive plexiglass or other partitions which can block air flow between booths. The scanner station is recommended to be near an exit, preferably at the opposite side of the entrance with an exit through a different doorway. Keeping doors and windows open for extra ventilation is also recommended.

As a poll worker, you will be tasked with routinely disinfecting commonly used surfaces, such as door handles, pens and voting booth equipment. You will also be guiding voters safely through the physical voting process, which will require maintaining social distancing and giving clear and audible verbal instructions. Poll workers are advised to ask each voter to use hand sanitizer and should not provide the voter a ballot until the hand sanitizer has dried.

Poll workers should wear a mask at all times and may need gloves, considering that some voters could be asymptomatic. Should a voter arrive without a mask, free masks will be available for use. It is important to know voters cannot be turned away for failure to wear a mask. This may mean poll workers will have to adjust the flow of traffic to ensure the voter is kept as socially distanced from others as possible. One voting booth should be placed further away than others for mask-less voters. Poll workers should offer verbal assurances that the citizen will be allowed to vote, despite not having worn a mask. Should a citizen become hostile or aggressive, poll workers should have an agreed upon phrase to signal a call to security or law enforcement.

Should you decide to volunteer your time, be sure to review both the CDC guidelines and California State Guidelines for poll workers ahead of your date of service. Good luck, stay safe and we thank you for playing this important role in ensuring a free, fair and accessible election for all Californians.

Written By: Christopher B. Dolan and Matthew D. Gramly

Donald from Belvedere asks:

Q: Is it possible for a candidate to become President of the United States without winning the nationwide popular vote?

A: Dear Donald,

Yes, it is possible. In fact, that has happened twice in the very recent past. Over the last seven presidential elections, the Republican candidate has only won the popular vote a single time, in 2004, yet has become President three times. George W. Bush lost the popular vote in 2000 but became President. He won the popular vote in 2004 and was re-elected. Donald Trump lost the popular vote in 2016 by more than three million votes yet became President anyway.

How could this be? The answer is because we have something in the United States called the Electoral College. We do not elect presidents based on who won the nationwide popular vote. Candidates have to win the popular vote in individual states. Once they do, that state’s electors will cast ballots in favor of the candidate who won that individual state. Each state is awarded a number of electors equal to the number of members that state has serving in the House of Representatives as well as their two Senators. Currently there are 538 electors; 100 for members of the U.S. Senate, 435 for members of the U.S. House of Representatives, and three representing Washington D.C., which is not currently a state. The electors are the people who actually cast binding ballots to elect each President.

It sounds convoluted and seems to be contrary to the ideal of “one person, one vote” but the Electoral College actually dates back to the founding of our nation and is enshrined within the Constitution.

During the late 1700s our founding fathers never intended for the election of a president to be left to whoever won the popular vote of the combined states or colonies that existed at that time. They did not trust the electorate to be wise in making this decision; our founding fathers viewed everyday Americans as unsophisticated, illiterate, and frankly, not smart enough or sufficiently emotionally stable to be trusted with choosing a president. Another concern was that the more populous states (in the north) would overrun the will of lesser populated states (in the south) with every election merely because more people who could vote lived in the north. Remember, back in the late 1700s the only Americans eligible to vote were white adult males who owned property. Women and slaves did not have the right to vote. There were simply more eligible voters in the north than there were in the south and the southern slave states feared a never-ending procession of presidents who were unsympathetic to owning slaves.

At the Constitutional Convention in Philadelphia, PA in 1803, James Wilson, representing Pennsylvania (a non-slave state), proposed that each president be elected by direct popular vote. James Madison (hailing from the slave state of Virginia) countered that the southern slave states would not agree to such a system because the almost 750,000 slaves in southern states at that time couldn’t vote. Describing this, Madison wrote, “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” He was complaining that southern states would not get a number of votes representative of their actual populations because slaves could not vote – even though those same states were the ones preventing slaves from being able to vote. The southern states, however, received credit for the slaves populating their states when calculating the population to determine the number of Representatives representing each state in Congress. In this calculation, slaves were counted as 3/5 of a person, which is stated in the Constitution. Thus the compromise to protect the slave states’ interests was reached and the Electoral College was formed.

Given this antiquated system, designed at least in part to preserve slavery in the southern states, it is entirely possible for a presidential candidate to lose the nationwide popular vote yet win the Electoral College. Here is how that works currently: Electors are not apportioned equally based on each population, largely because of the Senate. Each state gets two U.S. Senators, regardless of population, and thus at least two electors. Wyoming has a population of less than 600,000 people and has two Senators for a total of 3 electors. California has 40 million people, two Senators, and just 55 electors.

The Electoral College is not representative of the actual electorate nor was it designed to be when it was formed over 200 years ago. When the Electoral College was created slavery was still legal and practiced by half the country, slaves could not vote, women could not vote. Many argue that it is time for the Electoral College to be abolished. In the age of Black Lives Matter it is difficult, at best, to argue that it should be preserved.

Christopher B. Dolan is the owner of the Dolan Law Firm. Matthew D. Gramly is a Senior Associate Attorney based in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

Written by: Mari Bandoma Callado and Christopher B. Dolan

Billy S. asks:

Q: “I have seen many terms like provisional, mail-in and in-person voting. It’s all very confusing. Can you explain what this all means?”

A: Thank you for your question Billy. In order to fully participate in our democracy, we encourage all eligible voters to exercise the right to vote in local, state and national elections.

Election day is Tuesday, Nov. 3, 2020. This year, all of California’s registered voters will be mailed a ballot no later than 29 days prior to Election Day per Gov. Gavin Newsom’s Executive Order N-64-20. Due to the COVID-19 pandemic, this is an unprecedented election and new voting location rules are in place should some voters still choose to participate in-person.

This article will discuss how to register to vote in the Nov. 3, 2020 General Election, explain what a provisional ballot is, how to vote by mail, where to find information on how to vote early and in-person.

Eligibility
To register to vote in California, you must be a U.S. citizen and a resident of California. You must be 18 years or older on Election Day. For information on eligibility if an individual has a criminal history or subject to conservatorship, click here.

How to register
To check if you’re registered to vote, click here. To register online, you can fill out this online application. The application is available in several languages including English, Spanish, Chinese, Hindi, Japanese, Khmer, Korean, Tagalog, Thai and Vietnamese. You can also register to vote using the California voter registration form or obtain a form at your local library, U.S. Post Office, or Department of Motor Vehicles offices. Note that your registration must be postmarked or submitted electronically no later than Oct. 19, 2020 to participate in the Nov. 3, 2020 election.

What is a provisional ballot?
If you miss this deadline to register, you may conditionally register to vote and cast a provisional ballot by visiting your county elections office, a vote center, or a designated satellite location during the 14 days prior to, and including Election Day. For more information, click here.

A provisional ballot is a regular ballot that is placed in a special envelope prior to being put in the ballot box. Your provisional ballot will be counted after election officials have confirmed that you are registered to vote in that county and you did not already vote in that election. To check the status of your provisional ballot, click here for a list of county contacts and information on how to check the status of your provisional ballot.

How to vote by mail
All registered voters will be sent a vote-by-mail ballot for the Nov. 3, 2020, General Election and registered voters do not have to apply for a vote-by-mail ballot for this election. Instead of going to the polls on Election Day, you may vote using the vote-by-mail ballot that will be sent to you. After you vote, insert your ballot in the envelope provided and you have several options to return your voted ballot:

Mail it to your county elections official (must be postmarked on or before Election Day and received by your county elections office no later than Nov. 20, 2020);
Return it in person to a polling place or the office of your county election officials (note that vote-by-mail ballots that are personally delivered must be delivered no later than 8 p.m. on Nov. 3, 2020;
Drop off your ballot in one of your county’s ballot drop boxes (no later than 8 p.m. on Nov. 3, 2020);
Authorize someone to return the ballot on your behalf (must fill out the authorization section found on the outside of your ballot envelope).

For a list of county elections offices, visit: https://www.sos.ca.gov/elections/voting-resources/county-elections-offices/

Can I vote early?
California voters can also vote before Election Day, from Monday, Oct. 5, 2020 to Monday, Nov. 2, 2020. However, dates and hours vary depending on where you live. Early voting and vote-by-mail ballot drop off locations may be found on the Secretary of State’s early voting website.

Can I still vote in person?
In-person voting locations will also be available to voters. Gov. Newsom’s executive order gave California counties permission to limit in-person voting operations as protection against the spread of COVID-19 but only if they also offer three days of early voting. If you are choosing to vote in person, make sure to confirm your polling location by visiting the Secretary of State’s website.

Written by: Christopher Dolan and Cristina Garcia

This week’s question comes from Roger who writes,

Q: “I have been following the news about the protests in Portland, Oregon. Protesters have reported arrests by federal law enforcement officers in unmarked vehicles and without visible badges. I personally have participated in peaceful protests and find this troubling. It seems counterintuitive to allow individuals in plain clothes and in unmarked vehicles to arrest you. Further, how is one supposed to know that they are law enforcement officers or identify the agency they work for if they are not wearing badges? Are federal law enforcement officers required to identify themselves when making arrests?”

A: Dear Roger,

that is a great question. Currently there is no federal statute requiring federal officers to disclose their identity or their agencies of affiliation. For this reason, many federal law enforcement officers will simply identify themselves as “federal law enforcement.” As you mentioned, this is concerning as citizens engaged in peaceful protests would be unable to identify the officer or the agency that apprehended, detained, or arrested them.

Many legislators became alarmed as news reports poured in from Portland, Oregon reporting several arrests made by federal law enforcement officers in unmarked vehicles and without visible badges. For this reason, two new bills have been introduced to Congress in an effort to reach transparency. The new bills would require federal law enforcement officers to identify themselves and it would prohibit the use of unmarked vehicles when apprehending, detaining or arresting civilians when engaging in crowd control which includes demonstrations, protests and riots.

On June 8, 2020, the Senate introduced Senate Bill 3909 – Law Enforcement Identification Act and on June 11, 2020, the House of Representatives introduced an identical bill which reads in relevant part:

“(b) REQUIREMENT. – Each Federal law enforcement officer or member of an armed force who is engaged in any form of crowd control, riot control, or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest, or riot in the United States shall at all times display identifying information in a clearly visible fashion, which shall include the Federal agency, last name, and badge number of the Federal law enforcement officer or the armed force, last name, and rank of the member of an armed force, respectively.”

If the above bill is passed, it would require all on-duty federal law enforcement officers to clearly display their agency name, their own last name and their identification number. This would allow citizens to know which agency is arresting them. It would also create a sense of accountability as the citizens arrested or witnessing arrests would be able to identify the officer and agency, which would facilitate their ability to report any abuses or misconduct to the correct agency.

The Senate has also introduced Senate Bill 4220 – Preventing Authoritarian Policing Tactics on America’s Streets Act, which would also require all federal law enforcement officers to identify themselves when engaging in any form of crowd control. However, this bill takes it one step further by prohibiting federal law enforcement officers or members of an armed force from taping over or otherwise obscuring or concealing their identification information. Further, federal law enforcement officers would also be prohibited from using an unmarked vehicle for apprehension, detention or arrest of civilians while the officer or member is engaged in any form of crowd control which includes demonstrations and protests.

The purpose of this bill is to limit the use of federal law enforcement officers for crowd control. The federal government has the authority to use federal law enforcement officers to protect federal property that is owned or occupied by the federal government. However, given that in Portland many federal law enforcement officers were reported making arrests several miles away from federal property, the Senate has introduced Senate Bill 4220 to place restrictions on federal law enforcement. Senate Bill 4220 provides that,

“…a Federal law enforcement officer or member of an armed force may only be authorized to perform any form of crowd control, riot control or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest or riot on Federal property or in the immediate vicinity thereof, which shall include the sidewalk and the public street immediately adjacent to any Federal building or property.”

This bill would restrict federal law enforcement officers from arresting or detaining citizens who are engaged in peaceful protests who are not on federal property or in the immediate vicinity of federal property.

Although there is no federal statute requiring federal law enforcement officers to identify themselves at this time, this can change if the Law Enforcement Identification Act and the Preventing Authoritarian Policing Tactics on America’s Streets Act are enacted.

By Christopher B. Dolan and Jeremy M. Jessup

Mr. Davis from San Francisco wrote in to say:

Q: “I have read a lot about, and unfortunately seen, way too many ‘Karens.’ Now I see that San Francisco Supervisor Shamann Walton has introduced an ordinance that is being called the ‘CAREN’ Act. What is this?”

A: “Karen,” of course, is a generic name given to people, usually middle-aged, middle class white women, who act like they can get whatever they want. A “Karen” is one who throws a tantrum at a Starbucks or who asks to speak to the manager over the slightest inconvenience. It is also someone who feels it is necessary to call the police to make false or inaccurate claims about minorities with racially or discriminatory motives.

The 2020 George Floyd protests have brought forth a wave of “Karens” who have been filmed engaging in racist and sometimes violent behavior against minorities. Recently, a “Karen” in San Francisco went viral for dialing police on a local Filipino resident who was stenciling Black Lives Matter in chalk on his own property. Another “Karen” was videoed telling a family that they could not be in the country because they were hiking on Mount Tamalpais with their dog.

Currently, there is immunity from civil defamation lawsuits for reporting a crime. It has been held that someone who makes a statement to the police about a suspected crime is protected by qualified privilege; he or she is discharging their social duty to help in the detection of criminal activity. A police officer receiving the report has an interest in receiving the information because they can investigate. Although reporting a false police report is criminal under California law, there is no punishment for people who call the police due to a perceived threat, based solely on one’s race, ethnicity or religious affiliation. This is where the anti-“Karen,” also known as the CAREN Act, comes into play.

The Caution Against Racially Exploitative Non-Emergencies, or CAREN Act, would amend the San Francisco Police Code, making it unlawful to fabricate or make false emergency reports that are racially biased. For example, claiming a black man is threatening you simply because he asked that you put your dog on a leash, or calling the police because a black man was dancing and exercising on his street, so as not to block the sidewalk, could be prosecuted, both civilly and criminally.

This proposed new law aims to protect the rights of minorities who are often targeted by and victims of fraudulent emergency calls. The CAREN Act would make it unlawful for an individual to contact the police solely to discriminate on the basis of a person’s race, ethnicity, religious affiliation, gender, sexual orientation or gender identity. This proposed ordinance follows similar proposed state legislation that would seek to end discriminatory police calls by classifying them as hate crimes.

Those found in violation of the state and/or local laws could be held accountable through monetary fines. In addition, under the proposed state bill, a victim of a discriminatory call could sue the caller for up to $10,000 in damages.

According to the author of the bill, California State Assemblymember Rob Bonta of Oakland, his proposal does not seek to discourage people from calling 911 to report real emergencies.

However, “racist and discriminatory 911 calls are dangerous, demeaning and demoralizing to the person falsely accused. They further deteriorate community-police relations and contribute to the inaccurate and harmful over-criminalization of black and brown communities,” Bonta said in a statement. “If you are afraid of a Black family barbecuing in the community park, a man dancing and doing his normal exercise routine in the bike lane, or someone who asks you to comply with dog leash laws in a park, and your immediate response is to call the police, the real problem is with your own personal prejudice,” said Bonita.

Detained? No. Arrested and booked? Yes.

If a person is “detained,” the police officer is holding a person for a short amount of time. If a reasonable person would not feel free to leave, or police prevent a person they are questioning from leaving, that detention turns into an arrest. Police take arrestees to a local jail precinct, where they are then booked. In either scenario, the Fifth Amendment right to remain silent applies and should be invoked.

After a person is arrested and booked, they are entitled to phone calls. California Penal Code Section 851.5 provides that arrestees are entitled to three phone calls immediately upon booking except where physically impossible, and no later than three hours after arrest. Arrestees are entitled to make at least three phone calls at no expense if they are within the local calling area and at the arrested person’s own expense (if outside the local calling area). Local calling areas do not necessarily refer to anything within the same area code as the jail. A sign posted near the telephone booth will provide information about what phone numbers are considered local. Collect calling is also an option for making phone calls to a number outside of the local area. Arrestees may call an attorney, a bail bondsman, or any friend or relative.

If the arrestee is a parent with custodial responsibility for a child, then the arrestee has the right to two additional phone calls for the purpose of arranging for the care of a minor child or children during the arrested person’s absence. These phone calls must also be given immediately upon request, or as soon as practicable.

The right to post-booking phone calls is protected by the Fourteenth Amendment of the U.S. Constitution because California Penal Code Section 851.5 creates a liberty interest. Denying arrestees the opportunity to make a telephone call is a civil rights violation. The Fourteenth Amendment guarantees the right to due process, and is particularly protective of the minimal liberty interests granted to prisoners, such as the ability to make a phone call when arrested and booked.

However, this right to phone calls is not without complications.

First, assume that the police will record any phone call made from jail. These phone calls are not private and may be used against you. Police routinely record the outgoing portion of the phone call, so long as that phone call is not with an attorney.

Additionally, know that in practice, police officers have ways to deny phone calls. Here is one trick: A police officer denies an arrestee their constitutional right to a phone call, then entice with the opportunity to sit the arrested person in a waiting room with a television, instead of a holding cell with concrete and metal benches. The catch to get in the waiting room, which has cushioned chairs and a television, instead of the holding cell?: Sign a statement that says the police provided the opportunity to make three phone calls within three hours of booking. If an arrested person asks for clarification since the police did not, in fact, provide the opportunity to make three phone calls, the arrestees returns to the holding cell instead of the waiting room. After several hours, a cushioned chair and a television look better than a metal bench, concrete floor and a toilet within public view of anyone walking through the area.

If the police denies arrestees their constitutionally protected right to phone calls from jail, then there may be a civil cause of action against the police officers. Police officers are not entitled to qualified immunity for this civil rights violation. Qualified immunity purportedly balances the interests in the vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties. The goal is to make it possible for officials to reasonably anticipate when their conduct may give rise to liability for damages.

But qualified immunity does not immunize police officers where the civil right is so clearly established under law that no reasonable officer could have believed that they were not violating a constitutional right.

The right to phone calls after booking is such a right because the statute establishes that police officers do not have discretion to decline phone calls to arrestees, and the consequences for not allowing someone the ability to call family members or an attorney and let them know where they are can be dire.

Written by: Matt Gramly

On Monday June 15, 2020, the United States Supreme Court handed down a decision stating with firmness and clarity that any employer who fires an employee for being gay or transgendered is in violation of the law. The law being violated in that instance would be the Title VII of the 1964 Civil Rights Act. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” The basic argument is that if an employer has two employees, one male and one female, but only fires the male employee because he dates men, but doesn’t fire the female employee because she dates men, the employer has discriminated against the male employee on the basis of his gender. The employer accepts behavior from the female employee that he does not accept from the male employee and the only difference between the two employees is their gender.

This ruling is monumental for LGBTQ rights. The full complement of anti-discrimination employment protections found within the Civil Rights Act have now been extended to the LGBTQ community across the country. It is now illegal in the United States for any employer to fire an employee on the basis of their sexual orientation or gender identity. Prior to Monday’s decision it was still legal for an employer to do so in 26 states. With Pride celebrations and parades being canceled across the country because of the coronavirus pandemic, it is also fitting that this decision was handed down by the Court during Pride month.

Also of great importance is which Court Justice wrote this opinion. The decision itself was a 6-3 majority with conservatives Chief Justice John Roberts and Trump-appointed Justice Neil Gorsuch joining the Court’s four more liberal members. The forceful, no-nonsense opinion was written by Justice Gorsuch in very clear language leaving no ambiguity to the Court’s decision.

An immediate backlash formed on the right in this country. Many religious conservatives decried the ruling as an attack on religious freedom. Evangelical leader Franklin Graham issued a fiery response to the ruling on Facebook, stating, “I believe this decision erodes religious freedoms across this country. People of sincere faith who stand on God’s Word as their foundation for life should never be forced by the government to compromise their religious beliefs. These are the freedoms our nation was founded on.” He is arguing that his religious freedom is negatively impacted and should be prevented from firing someone from his church for being gay or transgender. The law now disagrees with him.

His argument strikes at a fundamental misunderstanding of the term “religious freedom” specifically as used by someone like Mr. Graham. Religious freedom means the freedom to practice whatever religion you choose. It also means, as stated in the First Amendment, that the government cannot force you to practice any particular religion against your will. For example, “I cannot do something because it goes against my religious beliefs,” is a perfectly distilled illustration of this. However, “YOU cannot do something because it goes against MY religious beliefs,” the position taken by Mr. Graham, is twisting the concept of religious freedom to a degree that is both unacceptable in this country and is in violation of the ideals of individual freedom embodied by our Constitution and Bill of Rights, as affirmed Monday by the Supreme Court. Very often, those who use the term “religious freedom” the loudest and most frequently leave off the two words that actually define this idea for them, “religious freedom to discriminate.”

Many take the position that their religious freedom, their freedom to BE a religious person and to practice their religion in the United States, is being destroyed because they will no longer be permitted to discriminate against members of the LGBTQ community in their hiring practices. Understand that no rights have been taken from Mr. Graham’s evangelicals or any other religious group in this Court ruling. Justice Gorsuch, as he wrote in his opinion, simply read the plain text of the 1964 Civil Rights Act and said, “it is a violation of the law for any employer to discriminate against an employee because of their gender,” which is exactly what the Act says. One astute observer put it this way; Equal rights for others does not mean fewer rights for you – it’s not pie. Another observer, Jesus Christ, put it this way, “You must love your neighbor as yourself.”

The Dolan Law Firm has fought tooth and nail for the rights of the LGBTQ community for decades and will continue to do so. We celebrate the Supreme Court’s ruling as we celebrate Pride month with our families, friends, co-workers, and community. Happy Pride everyone!

This week’s question comes from Kimmy who writes:

Q: “I have attended recent Black Lives Matter protests to bring awareness to excessive force by Police against African Americans. At the last protest I attended, a police officer blocking an intersection told me to put my phone down and said I couldn’t film him. I have seen many videos from these protests and I wanted to document the protest myself. Am I allowed to film police officers?”

A: Kimmy, you raise a very important question. Many have seen the sickening cell phone footage of George Floyd with a police officer’s knee on his neck. We have seen even more cell phone video images of police abuse during some recent protests. These recordings have made a significant impact in the public perception of systemic racism within police forces and are acting as an import catalyst for change. This makes the conditions under which citizens may rightfully document the activities of law enforcement officers increasingly important to understand. Especially when, as happened to you, the police ask you to stop filming. The right to film police officers raises a number of legal questions including Constitutional First Amendment issues as well as California state laws.

The First Amendment of the United States Constitution prohibits the Government from passing laws that would infringe upon, among other things, free speech, and the freedom of the press.

Most courts have held that the First Amendment gives individuals the right to document police officers in public while they are performing their duties.

Inherent in the First Amendment is the right to freely discuss our government, as well as the freedom of the press and right to public access to information. Now that cell phones and other compact filming devices are ubiquitous and social media has become a primary source for people to receive their information, “news” is increasingly gathered and disseminated by members of the public. Fittingly, courts have recognized this change and held that the freedom of the press also applies to citizen journalists and documentarians just as it does to formal members of the press. (Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).)

There are limits, however. In California, an individual may record an on-duty police officer, but may not do so surreptitiously (the camera must not be concealed or hidden). Under California Penal Code Section 647, audio recording, and potentially videotaping, a police officer with a concealed camera may constitute a misdemeanor. While openly recording an officer is legal, the conduct of others included in the audio and video may be protected. California Penal Code 632 makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the participants’ consent.

When filming the police, one must not interfere with the duties the officer is performing. It is not legal to interfere with those duties simply because one is recording. For example, an officer may need a reasonable amount of space to effectively detain a person. Even if one disagrees with the right of an officer to detain a person, it is not lawful to interfere with an arrest. If the officer is not impeded, it is entirely legal to record the officer.

Another important limitation to the right to film police is that it is lawful only on public areas such as streets, sidewalks, or other public lands. California has anti-stalking and “anti-paparazzi” laws which make it unlawful to record anyone on private property without consent. These laws also apply to off duty officers. To lawfully document a police officer, the officer must be in the performance of their duties and on public land.

While it is entirely legal for a person to film a police officer in California within these restrictions, it is important to use common sense. As you discovered, the right to film does not mean that the police will not confront a person who is filming them and ask them to stop. If this happens, it is best to remain calm and polite, and simply explain that you are exercising your First Amendment rights. It is always important to make sure the officer does not perceive a physical threat. If using a phone or small recording device such as a GoPro, have a colorful case or cover and never hold it in a manner that may allow it to be confused by an officer as a weapon. It is not advisable or legal to threaten an officer’s safety.

Finally, even though filming is lawful, a citizen journalist may still lawfully be questioned by a law enforcement officer, though there is no requirement to respond or answer any questions. And, unless a person is driving, there is no California law that requires a person to provide an officer with identification. If questioned or asked for ID, simply ask “am I being detained, or am I free to go.”

ADA and Voting

Resources:

Unofficial Ballot Drop Boxes

Health and safety measures at the voting booth

By Christopher B. Dolan and Vanessa C. Deniston:

What is the Electoral College and why do we have one?

With Election Day coming, here’s how to vote in California

Are the Feds Required to ID Themselves?

Pertinent details about the timely CAREN Act

Your Rights When You Are Detained: Do You Really Get A Phone Call?

What the impact of the Supreme Court’s decision will mean for LGBTQ employees

Is it legal to shoot video of police?