Videotaping, Surveillance, and Civil Restraining Orders

[sandyclaus]

What is the name of your state (only U.S. law)?
California

This is a 2 part question.

I am SOMEWHAT familiar with the videotaping statutes for California, i.e. a landlord can place a video camera in common areas of a rental unit to record tenants. I believe they must inform tenant of this fact, and I believe that if can only record video - if it records audio, it violates the law. Plase correct these assumptions if I am incorrect.

Now enter the fact that one of those tenants has a current civil harassment restraining order in force against that landlord. Part of that RO, under personal conduct orders, states that the restrained person shall not "... keep under surveillance ..." the protected person.

Landlord has watched the tenant's movements constantly, hoping to catch him doing something wrong. There are unfounded accusations of theft (landlord is quite paranoid, very forgetful, and often misplaces things) and claims that tenant must be stealing from her. Landlord has now posted a sign indicating the presence of a video camera outside the rental unit. Whether or not it exists remains to be seen, but the sign implies that it exists.

In my opinion, the existence of a video camera is a blatant violation of the restraining order. The tenant intends to file a police report to register the complaint. If the landlord is found to be in violation after the police investigate, what is the potential criminal penalty for such a violation? Is there even a reasonable possiblity that they would arrest her, or would it more likely be a warning given instead? Note that this would be the 1st such violation that can be supported by evidence, although landlord violates the other personal conduct orders on a daily basis (difficult to prove as she wouldn't openly admit it).

Thanks for all of your opinions on the matter.What is the name of your state (only U.S. law)?

 

[CdwJava]

I am SOMEWHAT familiar with the videotaping statutes for California, i.e. a landlord can place a video camera in common areas of a rental unit to record tenants. I believe they must inform tenant of this fact, and I believe that if can only record video - if it records audio, it violates the law. Plase correct these assumptions if I am incorrect.

What kind of unit and "common area" are we talking about? A living room of a shared rental house? Or, are we talking about the front yard o a laundry room of a multi-unit apartment building?

Audio is generally going to be a no-no, and video might be as well - depending on the lease agreements and the type of area we are talking about.

Now enter the fact that one of those tenants has a current civil harassment restraining order in force against that landlord. Part of that RO, under personal conduct orders, states that the restrained person shall not "... keep under surveillance ..." the protected person.

That depends upon the location we are talking about. If we are talking about cameras in an apartment complex, it would seem to be unreasonable to assume that the security system be shut down because of this order.

In my opinion, the existence of a video camera is a blatant violation of the restraining order.

Maybe ... maybe not. But, if the landlord believes he or she is getting ripped off by someone, it is likely that a court will agree they have a right to adopt reasonable security measures.

Again, this depends on the property and the location of the cameras. In your apartment would probably not be okay ... outside the front door probably would.

The tenant intends to file a police report to register the complaint. If the landlord is found to be in violation after the police investigate, what is the potential criminal penalty for such a violation?

If a court finds that the landlord has violated the court order (a misdemeanor), he or she could face jail time and a fine. The section would be PC 166(a)(4) if you want to look up the exact penalties.

Is there even a reasonable possiblity that they would arrest her, or would it more likely be a warning given instead?

An arrest would be highly unlikely. Most likely you would both be asked for your statements and the police would send it to the DA to let them decide what to do.


- Carl

 

[sandyclaus]

Answers..

The rental unit is a room in a shared house. The tenant is one of 5 roommates sharing the home. The landlord rents the home, lives in the home, and rents out the extra rooms.

Tenant is not certain that the camera actually exists as landlord has made this claim before, only to find out she was lying in order to intimidate the tenant. If they exist, they would be in shared common area hallways, living room, dining room, kitchen. Maybe the shared bathroom, but not certain. Only evidence (probable cause) to believe there might be cameras now is the notice newly posted outside the rented room stating "Smile, you're on camera!" No cameras are in the rented room, but it's entirely possible one could be directed at the doorway of the room (recording when door is opened).

As far as the violation is concerned, to the best of my knowledge, the elements needed to file a police report are:

(1) Is there a valid, properly served restraining order in effect? (yes, issued 2/11, and landlord was present in court when order was made);

(2) Does the order prohibit surveillance? (yes, listed under personal conduct orders);

(3) Is there probable cause that landlord's actions violate the court order? (yes, her notice indicates that camera surveillance exists)

As for landlord justifying her surveillance, her claims that she needs to protect her property from theft are something that shouldn't be open to interpretation by a law enforcement officer at the time the report is taken. The elements of the crime are met - there is a current valid court order against ANY surveillance, THE ORDER MAKES NO EXCEPTIONS OR DISTINCTIONS, and for whatever reason she chose she violated this order by using cameras to keep tenant under surveillance. The City Attorney should be the only one to decide whether or not she has a reasonable excuse to violate it.

 

[CdwJava]

The rental unit is a room in a shared house. The tenant is one of 5 roommates sharing the home. The landlord rents the home, lives in the home, and rents out the extra rooms.

Wait ... the landlord RENTS the home? The landlord is not really the landlord, then? Does this "landlord" have the authority - in writing - to sublet these rooms? These rentals might be illegal - which opens up a whole new can of worms.

Tenant is not certain that the camera actually exists as landlord has made this claim before, only to find out she was lying in order to intimidate the tenant. If they exist, they would be in shared common area hallways, living room, dining room, kitchen. Maybe the shared bathroom, but not certain.

If the camera exists in common areas, and all parties are aware of the cameras, then there is likely no CA state law broken. And since they would not appear to be designed specifically to spy on the protected party in a harassment order, I doubt that any charges for violating the court order woul ensue.

As far as the violation is concerned, to the best of my knowledge, the elements needed to file a police report are:

(1) Is there a valid, properly served restraining order in effect? (yes, issued 2/11, and landlord was present in court when order was made);

(2) Does the order prohibit surveillance? (yes, listed under personal conduct orders);

(3) Is there probable cause that landlord's actions violate the court order? (yes, her notice indicates that camera surveillance exists)

Does it specifically require the landlord to remove or disable security cameras in the common areas of the residence? Was this a specific issue when the order was issued?

With 5 subtenants and cameras in common areas, it is not going to be a slam-dunk sale to a DA or a court that these cameras were designed to spy on one particular individual. if the "landlord" articulates that there have been thefts on the property then cameras would seem a reasonable deterrence and response to theft.

It may come down to an issue of a simple, "Don't like it, then move."

As for landlord justifying her surveillance, her claims that she needs to protect her property from theft are something that shouldn't be open to interpretation by a law enforcement officer at the time the report is taken.

Which is why the officer would send it to the District Attorney.

The elements of the crime are met - there is a current valid court order against ANY surveillance, THE ORDER MAKES NO EXCEPTIONS OR DISTINCTIONS, and for whatever reason she chose she violated this order by using cameras to keep tenant under surveillance.

But not THE tenant, rather ALL tenants. If I were responding, I would not make an arrest based on this. I would forward it to the DA and let him decide.

COULD an officer make an arrest or issue a citation for it? Sure. If the "landlord" confesses to doing it for the specific purpose to spy on the protected party, it's a slam dunk and an arrest is very likely. Otherwise, it's kinda weak. I suspect that the most likely result will be to forward the matter to the DA.

The City Attorney should be the only one to decide whether or not she has a reasonable excuse to violate it.

That's why the report is forwarded to the DA (not the city attorney ... at least, these are no usually handled by city attorneys).

The police are almost never required to make an arrest even if the elements of an offense are minimally met. It is one of several options. One of the very few exceptions to this is in the case of domestic violence restraining orders as the law there tends to mandate an arrest if the elements are met. Civil harassment orders encourage an arrest, but do not mandate it. And given the circumstances here, I doubt that the "landlord" will be arrested. It might happen, but do not count on it unless or until the DA decides to issue a warrant or seek a summons for the "landlord".

- Carl

 

[sandyclaus]

Good to know

Wait ... the landlord RENTS the home? The landlord is not really the landlord, then? Does this "landlord" have the authority - in writing - to sublet these rooms? These rentals might be illegal - which opens up a whole new can of worms.

// The landlord/roommate did not have permission to sublet. At least not until she decided to motivate the tenant in question to move. Now the owner has given her blessing, but not in writing, and not retroactive to when the subtenancy began. Landlord & owner are good friends. //

If the camera exists in common areas, and all parties are aware of the cameras, then there is likely no CA state law broken. And since they would not appear to be designed specifically to spy on the protected party in a harassment order, I doubt that any charges for violating the court order woul ensue.

// Cameras would have been installed to spy SPECIFICALLY on the protected party ONLY. Landlord will foolishly admit that, much to her detriment. //

Does it specifically require the landlord to remove or disable security cameras in the common areas of the residence? Was this a specific issue when the order was issued?

// At the time the order was issued, there were no cameras, and no plan to have them. It was *NOT* a specific issue when the order was issued. As such, the issue was not even addressed at the hearing. No cameras to remove or disable. //

With 5 subtenants and cameras in common areas, it is not going to be a slam-dunk sale to a DA or a court that these cameras were designed to spy on one particular individual. if the "landlord" articulates that there have been thefts on the property then cameras would seem a reasonable deterrence and response to theft.

// While I agree in theory, as specified before, the "landlord" willingly admits that these cameras were installed to keep tabs on the comings & goings on the protected tenant ONLY. The thefts are a fabrication to justify her illegal action ("if I say he's a thief, I can get away with installing the cameras" has been openly stated in tenant's presence). //

It may come down to an issue of a simple, "Don't like it, then move."

// It might at that. //

COULD an officer make an arrest or issue a citation for it? Sure. If the "landlord" confesses to doing it for the specific purpose to spy on the protected party, it's a slam dunk and an arrest is very likely. Otherwise, it's kinda weak. I suspect that the most likely result will be to forward the matter to the DA.

- Carl

// If that's all the officer had to go on, I could see reasonable doubt also. But in reality, the questionable factors won't be a confession to the surveillance or the target of it, but the purpose of it. And that falls under defense (motivation) IMHO. Good enough to at least take the report and forward to the CA/DA, correct? Arrest possible but not likely given the possible defense angle? //

Carl, I much appreciate the law enforcement angle on this issue. Helpful to know ahead of time how this would be handled on the front line.