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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Legislative Review Committee
Subject: AN ORDINANCE OF THE CITY OF
SAN BERNARDINO ADDING SAN
BERNARDINO MUNICIPAL CODE CHAPTER
9.58, RELATING TO THE USE OF PRIVATE
SURVEILLANCE EQUIPMENT. (First
Reading.)
Date: September 8, 2009
Synopsis of Previous Action:
On August 18, 2009, the Legislative Review Committee, Council Members Brinker (chair),
McCammack, and Shorett, voted unanimously to move this item to the Council, with a
recommendation for approval.
Recommended motion:
Contact person: Councilwoman Wendy McCammack
Phone: 5068
Supporting data attached: StaffReoort
Ward: All
FUNDING REQUIREMENTS:
Amount: NIA
Source: NI A
Finance:
Council Notes:
Agenda Item No.~
q'r-Oq
STAFF REPORT
COUNCIL MEETING DATE: September 8,2009
AGENDA ITEM: An Ordinance Of The City Of San Bernardino Adding San Bernardino
Municipal Code Chapter 9.58, Relating To The Use Of Private Surveillance Equipment
1. Introduction
Private surveillance equipment is a common and accepted means of detecting
and deterring crime on commercial and residential premises. However, if such
equipment is used inappropriately, it can intrude upon the privacy of other citizens.
Recently, the City has been advised of multiple instances in which private surveillance
equipment is being used in such a way that it intrudes upon the privacy rights of
neighboring residents. This proposed ordinance is intended to address that problem.
2. Protection of the Right of Privacy Under Existing Law
Each person enjoys a right of privacy under the United States and California
Constitutions. A person's right of privacy is greatest in his or her residence. U.S. v.
Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074 (1976). However, not all parts of
private residential property enjoy the same degree of protection. For example, a person
standing in the open doorway of his or her residence is deemed not to have any
reasonable expectation of privacy. U.S. v. Santana, 427 U.S. 38,41,96 S.Ct. 2406
(1976).
California criminal law protects a person's privacy where the person can show
that he or she was intentionally viewed or recorded while in a private location. Sections
632 and 647 of the California Penal Code make it a crime to view, photograph, or
videotape a person who is in a place where there is a "reasonable expectation of
privacy," or to electronically listen to or record a confidential communication. In either
case, there must be proof that the invasion of privacy was intentional.
There is also civil liability for invasion of privacy. California Civil Code section
1708.8 states that an invasion of privacy occurs when a person uses a visual or auditory
enhancing device to attempt to capture, in an offensive manner, an image, recording, or
other physical impression of another person "engaging in a personal or familial activity,"
where the other person had a reasonable expectation of privacy. More generally, case
law states that an invasion of privacy occurs where there is (1) intrusion into a private
place, conversation or matter, (2) in a manner highly offensive to a reasonable person.
Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 231 (1998).
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3. The Need For This Ordinance
State law does not, at least explicitly, address the situation in which surveillance
equipment is positioned so as to enable the user to monitor private areas of the property
of another person, but there is no way for the other person to know whether hisor her
property is actually being monitored. The Penal Code sections noted above likely would
not assist the victim in that situation, as they only explicitly prohibit actual viewing or
recording and no known court decision has applied them to a case in which equipment
was positioned to enable surveillance but there was no proof that surveillance actually
occurred. Yet the mere possibility of being monitored would be deeply disturbing to
most people in such a situation.
Such a victim might have a remedy under civil law, as it is possible that a court
would deem the pointing of surveillance equipment in the direction of the victim to be
enough to constitute an intrusion into a private place even without proof of actual
surveillance. Again, however, there is no known court decision supporting a civil
remedy in that situation, and at any rate a victim may lack the financial resources to
pursue a civil action.
The proposed ordinance is intended to provide a remedy in this situation by
making it a crime under the Municipal Code to position private surveillance equipment
so that it can be used for surveillance of other residential property. Users of
surveillance equipment are prohibited from pointing the equipment at private parts of
residential property (Le., those not visible from the public right of way) at all. They are
prohibited from pointing it at parts that are visible from the public right of way for longer
than momentarily (30 seconds or less).
This approach recognizes that a moving surveillance device that is being used to
monitor one's own property may briefly, and incidentally, survey parts of adjoining
property that are publicly visible. However, there should be no legitimate reason for
maintaining even a publicly visible part of the property of another person under constant
surveillance, and no reason for surveying private parts of another's property at any time.
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I ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN BERNARDINO
3 MUNICIPAL CODE CHAPTER 9.58, RELATING TO THE USE OF PRIVATE
4 SURVEILLANCE EQUIPMENT
5
6 The Mayor and Common Council of the City of San Bernardino do ordain as follows:
7 WHEREAS, Section 40(z) of the Charter of the City of San Bernardino vests the Mayor
8 and Common Council with the power to make and enforce all laws and regulations with respect
9 to municipal affairs, subject only to the restrictions and limitations provided in the Charter or by
10 state law; and
II WHEREAS, Article I, section 1 of the California Constitution provides that all people
12 have inalienable rights, among which is the right to privacy; and
13 WHEREAS, the inappropriate use of private surveillance equipment in or adjacent to
14 residential areas of the City of San Bernardino has the potential to interfere with the right of
15 citizens of the City to privacy in their use of their residential property; and
16 WHEREAS, it is the intent of the Mayor and Common Council in enacting the following
17 Ordinance to prohibit intrusion upon the privacy of citizens in the use of their residential
18 property, without impairing the rights of other citizens to protect their own property through the
19 use of private surveillance equipment;
20 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
21 SAN BERNARDINO DO ORDAIN AS FOLLOWS:
22 Section 1. The Mayor and Common Council find that the above-stated Recitals are
23 true and hereby adopt and incorporate them herein.
24 Section 2. San Bernardino Municipal Code Chapter 9.58, Private Surveillance
25 Equipment, is hereby added to read as follows:
26 "Chapter 9.58 Private Surveillance Equipment.
27 "9.58.010 Purpose.
28 This Chapter is intended to prohibit intrusion upon the privacy of citizens in the use of
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1 residential property, without impairing the rights of other citizens to protect their own property
2 through the use of private surveillance equipment.
3 "9.58.020 Private Surveillance Equipment.
4 "As used in this Chapter, private surveillance equipment includes any device used by a
5 private party that enables the user to observe or record the activities of, or hear or intercept the
6 communications of, other persons.
7 "9.58.030 Location of Private Surveillance Equipment.
8 "No private surveillance equipment, as defined in Section 9.58.020, shall be located on
9 any property that the owner of the equipment does not own or have the legal right to possess.
10 "9.58.040 Positioning of Private Surveillance Equipment.
II "No private surveillance equipment shall be positioned in such a way as to intrude upon
12 the privacy of the occupier(s) of any residential property other than the user's property.
13 Circumstances in which such an intrusion shall be deemed to occur are anyone or more of the
14 following:
15 "A. The equipment is positioned so as to enable the user to observe, or to receive or
16 capture a visual image of, any part of the other property that is not readily visible from the public
17 right of way.
18 "B. The equipment is positioned so as to enable the user to hear or intercept
19 communications occurring on the other property that are not readily audible from outside the
20 property without artificial amplification.
21 "C. The equipment is positioned so as to maintain under continual surveillance any
22 part of the other property, whether or not that part of the property is visible from the public right
23 of way. As used in this provision, continual surveillance means any surveillance that lasts for
24 more than 30 seconds at a time.
25 "D. The equipment is positioned in such a way that the surveillance it provides is
26 primarily surveillance of the other property and not of the user's property.
27 "E. Any other circumstance in which the use ofthe equipment constitutes "(I)
28 intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a
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I reasonable person." (Shulman v. Group W Productions, Inc. (1998) 18 Ca1.4th 200, 231, 74
2 Ca1.Rptr.2d 843, 955 P.2d 469.)
3 "9.58.050 Penalty.
4 "A violation of this Section is a misdemeanor or an infraction and is punishable under
5 Chapter 1.12 or Chapter 9.93 of this Code, or under both of those Chapters.
6 "9.58.060 Severability.
7 The provisions of this Section are severable, and if any provision is held to be invalid the
8 validity of the remaining provisions shall not be affected."
9
I 0 Section 3. This Ordinance is based upon the recitals and findings set forth above,
11 and the accompanying Staff Report, and is adopted pursuant to the authority granted to the City
12 of San Bernardino in Article II, Section 7 of the California Constitution, and Sections 30 and
13 40(z) of the Charter of the City of San Bernardino.
14 Section 4. The Mayor and Common Council find that this Ordinance is exempt from
15 the California Environment Quality Act (CEQA) in accordance with the CEQA Guidelines,
16 California Code of Regulations, Title 14, Section 15061(b)(3), as it can be seen with certainty
17 that there is no possibility that the activity permitted by this Ordinance may have a significant
18 effect on the environment.
19 Section 5. Severability. If any section, subsection, subdivision, sentence, clause or
20 phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid
21 or ineffective by any court of competent jurisdiction, that determination shall not affect the
22 validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The
23 Mayor and Common Council hereby declare that they would have adopted this Ordinance and
24 each section, sentence, clause, and part of this Ordinance despite the fact that one or more
25 sections, sentences, clauses, or parts ofthis Ordinance is declared invalid.
26 III
27 III
28 III
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN BERNARDINO
2 MUNICIPAL CODE CHAPTER 9.58, RELATING TO THE USE OF PRIVATE
3 SURVEILLANCE EQUIPMENT
4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
5 Council of the City of San Bernardino at a
meeting thereof, held on the
day
6 of
, 2009, by the following vote, to wit:
7 COUNCIL MEMBERS:
8 ESTRADA
9 BAXTER
10 BRINKER
11 SHORETT
12 KELLEY
13 JOHNSON
14 MCCAMMACK
15
16
17
18
19
AYES
NAYS
ABSTAIN ABSENT
Rachel Clark, City Clerk
The foregoing Ordinance is hereby approved this
day of
,2009.
20
21
22
23
PATRICK J. MORRIS, Mayor
City of San Bernardino
24 Approved as to form:
JAMES F. PENMAN, City Attorney
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