Assembly Bill 2479 made changes to California Civil Code Section 1708.8, which embodies California’s “anti-paparazzi” legislation. These changes included a criminal law that prohibits the act to interfere with the driver of a vehicle, to willfully follow another vehicle too closely, or commit reckless driving in pursuit of “any visual image, sound recording or other physical impression of another person for a commercial purpose.” This new criminal law is an additional tool to be used by bodyguards or private investigators hired to protect a celebrity, and it is listed under section 40008 of the California Vehicle Code.
California Vehicle Code Section 40008
(a) Notwithstanding any other provision of law, except as otherwise provided in subdivision (c), any person who violates Section 21701, 21703, or 23103, with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than two thousand five hundred dollars ($2,500).
(b) Notwithstanding any other provision of law, except as otherwise provided in subdivision (c), any person who violates Section 21701, 21703, or 23103, with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose and who causes a minor child or children to be placed in a situation in which the child’s person or health is endangered, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than one year and by a fine of not more than five thousand dollars ($5,000).
(c) Pursuant to Section 654 of the Penal Code, an act or omission described in subdivision (a) or (b) that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one provision bars a prosecution for the same act or omission under any other provision.
This new law in the California Vehicle Code is very important and will be referenced by police officers, private investigators, or executive protection agents when an arrest is made for the criminal offense of the misdemeanor. If the private investigator or executive protection agent makes the arrest, it is important that he or she indicate to the police officer that the suspect is being arrested for violation of California Vehicle Code section 40008 (a) or violation of California Vehicle Code section 40008 (b), and not refer to the arrest as a violation of the “paparazzi law.”
In California, a misdemeanor arrest by a police officer without a warrant is permissible only if the public offense occurs in the arresting officer’s presence. Otherwise, the officer may only file a police report, which would then be reviewed by a detective, and upon determining if there was sufficient evidence to support the allegation, a recommendation for prosecution would be forwarded to the district attorney’s office.
If the officer is at the right place at the right time, such as being part of a “sting operation” or responding to a 911 call and arriving at the location in a sufficient amount of time to witness the paparazzi committing the violation, he or she would be able to make the arrest. Unfortunately, in most cases when the officer arrives at the location, the incident has already occurred.
The notion that the police should “round up” the paparazzi or make arrests for violations that were not witnessed by the officer is unlikely to happen. California Penal code 837 authorizes a private citizen, including a private investigator to make an arrest for a misdemeanor committed in his or her presence. This is where the executive protection agents or private investigators hired to protect a celebrity, come into play in having this law enforced. The executive protection agents or private investigators that have gathered and preserved evidence have the option of either having the paparazzi that violated the law arrested on the spot or filing a criminal report with the police department and later having that individual prosecuted. If a decision is made to make an arrest on the spot, the executive protection agents or investigators who have arrived to a safe location, and with vehicles stopped, may apprehend the individual themselves or choose to have the police respond and have them make the apprehension. The arresting party will still be the executive protection agents or the private investigators, and they will appear in court and provide evidence of the offense.
This activity is very similar to what security or loss prevention agents conduct on a regular basis at stores with regards to petty theft, also misdemeanor, and a violation of California Penal Code section 484. Once the theft is conducted in the presence of security, they will apprehend and arrest the individual. The police department will be called to transport the individual to jail. Security will be responsible for providing evidence and testifying in court.
This criminal law is one amendment of many that was made to 1708.8 of the California Civil Code which addresses invasion of privacy issues. Private investigators who may be wondering if any of these amendments or the language used in this anti-paparazzi law hinder the ability of an investigator to conduct surveillance in the performance of his duties, it does not. The legislation committee of the California Association of Licensed Investigators did a great job working with this bill to have section (g) included, which addresses legitimate investigations conducted by licensed private investigators.
California Vehicle Code section 40008 is not intended to stop paparazzi from conducting their work, and in many cases, the celebrity may welcome their presence. It is intended to stop those individuals who follow a celebrity in a reckless manner with disregard for public safety. If a celebrity feels that while traveling on the road their lives and the lives of their children have been placed in danger by the dangerous actions of the paparazzi, he or she may use this law to stop those actions by hiring a licensed and qualified private investigator that has a complete understanding of the law.
Jesse Martell, CII
ABOUT THE AUTHOR: For more than 18 years, Jesse Martell, President of Martell Investigations has been providing the highest quality of specialized investigations. Jesse Martell has been interviewed and featured in numerous articles about the new anti-paparazzi legislation.