Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data when establishing policies and procedures for the implementation and operation of a body-worn camera system, such as designating the person responsible for downloading the recorded data from the body-worn camera, and establishing when data should be downloaded to ensure the data is entered into the system in a timely manner and the cameras are properly maintained and ready for the next use.

This bill would require a law enforcement agency, department, or entity, if it employs peace officers and uses body-worn cameras for those officers, to develop a body-worn camera policy. The bill would require the policy to allow a peace officer to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any criminal or civil proceeding. The bill would also require the policy to prohibit a peace officer from making a video or audio recording in a health facility or medical office when a patient may be in view of the body-worn camera or when a health care practitioner is providing care to an individual. The bill would encourage the law enforcement agency, department, or entity to include specified considerations in the policy, including the time, place, circumstances, and duration in which the body-worn camera is operational. The bill would require the policy to be available to peace officers and to the public for viewing. The bill would prohibit a peace officer from using a personal device to make an unauthorized recording of the video or audio taken from a body-worn camera. The bill would also require a law enforcement agency to have an assigned independent investigator or a supervisor accompany a peace officer involved in an incident involving a serious use of force, as defined, when reviewing the peace officers body-worn camera recording. The bill would provide that its provisions do not apply to a law enforcement agency, department, or entity that has developed a body-worn camera policy, as specified, before January 1, 2017. Because this bill would impose new duties on the conduct of local law enforcement, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data when establishing policies and procedures for the implementation and operation of a body-worn camera system, such as designating the person responsible for downloading the recorded data from the body-worn camera, and establishing when data should be downloaded to ensure the data is entered into the system in a timely manner and the cameras are properly maintained and ready for the next use.

This bill would require a law enforcement agency, department, or entity, if it employs peace officers and uses body-worn cameras for those officers, to develop a body-worn camera policy. The bill would require the policy to allow a peace officer to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any criminal or civil proceeding. The bill would encourage the law enforcement agency, department, or entity to include specified considerations in the policy, including the time, place, circumstances, and duration in which the body-worn camera is operational and the availability of the policy to peace officers and members of the public. operational. The bill would require the policy to be available to peace officers and to the public for viewing. The bill would prohibit a peace officer from using a personal device to make an unauthorized recording of the video or audio taken from a body-worn camera. The bill would also require a law enforcement agency to have an assigned independent investigator or a supervisor accompany a peace officer involved in an incident involving a serious use of force, as defined, when reviewing the peace officers body-worn camera recording. Because this bill would impose new duties on the conduct of local law enforcement, it would impose a state-mandated local program.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data when establishing policies and procedures for the implementation and operation of a body-worn camera system, such as designating the person responsible for downloading the recorded data from the body-worn camera, and establishing when data should be downloaded to ensure the data is entered into the system in a timely manner and the cameras are properly maintained and ready for the next use.

This bill would require a law enforcement agency, department, or entity, if it employs peace officers and uses body-worn cameras for those officers, to develop a body-worn camera policy. The bill would require the policy to allow a peace officer to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any criminal or civil proceeding. The bill would encourage the law enforcement agency, department, or entity to include specified considerations in the policy, including the time, place, circumstances, and duration in which the body-worn camera is operational and the availability of the policy to peace officers and members of the public.

(1)Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data when establishing policies and procedures for the implementation and operation of a body-worn camera system, such as designating the person responsible for downloading the recorded data from the body-worn camera, and establishing when data should be downloaded to ensure the data is entered into the system in a timely manner and the cameras are properly maintained and ready for the next use.

Existing law requires law enforcement agencies, departments, or entities to consider specified best practices regarding the downloading and storage of body-worn camera data when establishing policies and procedures for the implementation and operation of a body-worn camera system, such as designating the person responsible for downloading the recorded data from the body-worn camera, and establishing when data should be downloaded to ensure the data is entered into the system in a timely manner and the cameras are properly maintained and ready for the next use.

This bill would state the intent of the Legislature to enact legislation to establish policies and procedures to address issues related to peace officers use of body-worn cameras.

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1940 Hearing Date: June 28, 2016

Subject: Peace Officers: Body-Worn Cameras: Policies and Procedures

HISTORY

Source: Peace Officers Research Association of California

Prior Legislation: AB 66 (Weber) – 2015, died Assembly Appropriations

AB 69 (Rodriguez) – 2015, Chap. 461, Stats. of 2015

SB 175 (Huff) – 2015, died Assembly Floor

Support: California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Narcotic Officers Association; Fraternal Order of Police; Association for Los Angeles Deputy Sheriff; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Los Angeles County Deputy Probation Officers Union, AFSCME, Local 685; Riverside Sheriffs Association

Opposition: American Civil Liberties Union of California; California Police Chiefs Association; California Public Defenders Association; California State Sheriffs’ Association; Electronic Frontier Foundation; Legal Services for Prisoners with Children

Assembly Floor Vote: 71 - 7

PURPOSE

The purpose of this bill is to require law enforcement agencies that employ peace officers to develop body-worn camera policies and that these policies are subject to collective bargaining, as specified.

Existing law defines “peace officer,” as specified. (Penal Code § 830, et seq.)

Existing law makes it a crime for a person, intentionally and without requisite consent, to eavesdrop on a confidential communication by means of any electronic amplifying or recording

device. (Penal Code § 632.)

Existing law exempts a number of law enforcement agencies from the prohibition in Penal Code section 632,^[1] including the Attorney General, any district attorney, or any assistant, deputy, or investigator of the Attorney General or any district attorney, any officer of the California Highway Patrol, any chief of police, assistant chief of police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county, police officer of the County of Los Angeles, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of his or her authority. (Penal Code § 633.)

This bill requires a law enforcement agency, department, or entity that employs peace officers uses body-worn cameras for those officers, the agency, department, or entity to develop a policy relating to the use of body-worn cameras, and requires that any policy be developed in accordance with state and local collective bargaining procedures.

This bill provides that in developing the policy, law enforcement agencies, departments, or entities are required to include the following:

• A peace officer is allowed to review his or her body-worn camera video and audio recordings before he or she makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding.
• A peace officer is not required to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any criminal or civil proceeding.
• A peace officer involved in an incident involving a serious use of force shall not review his or her body-worn camera recording until accompanied by an assigned independent investigator or a supervisor. The separating and monitoring of the peace officer involved in a serious use of force shall be maintained during the review of the body-worn camera video and audio recordings and this review shall not occur jointly among involved employees. Once the recordings are approved, as to the validity of the body-worn camera recordings and any other relevant recordings are also approved as their validity, an officer may have a legal representative present during the review of the recordings without the independently assigned investigator or supervisor present, before the peace officer makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding.
• The policy shall be available to all peace officers in a written form.
• The policy shall be available to the public for viewing.

This bill provides that in developing the policy, law enforcement agencies, departments, or entities are encouraged to include the following:

• The time, place, circumstances, and duration in which the body-worn camera shall be operational.
• Which peace officers shall wear the body-worn camera and when they shall wear it.
• Prohibitions against the use of body-worn camera equipment and footage in specified circumstances, such as when the peace officer is off-duty.
• The type of training and length of training required for body-worn camera usage.
• Public notification of field use of body-worn cameras, including the circumstances in which citizens are to be notified that they are being recorded.
• The manner in which to document a citizen’s refusal from being recorded under certain circumstances.
• The use of body-worn camera video and audio recordings in internal affairs cases.
• The use of body-worn camera video and audio recordings in criminal and civil case preparation and testimony.
• The transfer and use of body-worn camera video and audio recordings to other law enforcement agencies, including establishing what constitutes a need-to-know basis and what constitutes a right-to-know basis.

This bill defines “body-worn camera” as a device attached to the uniform or body of a peace officer that records video, audio, or both, in a digital or analog format.

This bill defines “peace officer” as any person designated as a peace officer pursuant to this chapter.

This bill defines “serious use of force” means any of the following:

• Force resulting in death.
• Force resulting in a loss of consciousness.
• Force resulting in protracted loss, impairment, serious disfigurement, or function of any body part or organ.
• A weapon strike to the head.
• Intentional firearm discharge at a person, regardless of injury.

This bill states that is does not apply to a law enforcement agency, department, or entity that has developed a body-worn camera policy, in accordance collective bargaining laws, before January 1, 2017, as specified.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for Legislation

According to the author:

AB 1940 will require law enforcement agencies that deploy body worn cameras to develop, through the collective bargaining process, policies and procedures on their use, including the recommendation of best practices.  AB 1940 will ensure accuracy by allowing peace officers to view the footage for memory recall.  The bill will also promote transparency in the cases of serious bodily injury by requiring the officer to view the footage after it has been validated and in the presence of an independent investigator.  AB 1940 will require that all peace officers and the public be provided with the body worn camera policies specific to their jurisdiction.  Finally, AB 1940 respects and protects existing collective bargained body camera policies.

2. Effect of the Legislation

A number of law enforcement agencies are currently permitted to utilize body-worn cameras. Existing law, however, does not require these agencies to have a policy prior to utilizing them. The need for such a policy was discussed in a recent study released by the Department of Justice and PERF:

When implemented correctly, body-worn cameras can help strengthen the policing profession. These cameras can help promote agency accountability and transparency, and they can be useful tools for increasing officer professionalism, improving officer training, preserving evidence, and documenting encounters with the public. However, they also raise issues as a practical matter and at the policy level, both of which agencies must thoughtfully examine. Police agencies must determine what adopting body-worn cameras will mean in terms of police-community relationships, privacy, trust and legitimacy, and internal procedural justice for officers.

Police agencies should adopt an incremental approach to implementing a body-worn camera program. This means testing the camera in pilot programs and engaging officers and the community during implementation. It also means carefully crafting body-worn camera policies that balance accountability, transparency, and privacy rights, as well as preserving the important relationships that exist between officers and members of the community.

(Miller, Lindsay, Jessica Toliver, and Police Executive Research Forum. 2014. Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned. Washington, DC: Office of Community Oriented Policing Services, page 51; emphasis added.)

The report recommends that each agency develop its own comprehensive written policy to govern body-worn camera usage, that includes the following:

• Basic camera usage, including who will be assigned to wear the cameras and where on the body the cameras are authorized to be placed;
• The designated staff member(s) responsible for ensuring cameras are charged and in proper working order, for reporting and documenting problems with cameras, and for reissuing working cameras to avert malfunction claims if critical footage is not captured;
• Recording protocols, including when to activate the camera, when to turn it off, and the types of circumstances in which recording is required, allowed, or prohibited;
• The process for downloading recorded data from the camera, including who is responsible for downloading, when data must be downloaded, where data will be stored, and how to safeguard against data tampering or deletion;
• The method for documenting chain of custody;
• The length of time recorded data will be retained by the agency in various circumstances;
• The process and policies for accessing and reviewing recorded data, including the persons authorized to access data and the circumstances in which recorded data can be reviewed;
• Policies for releasing recorded data to the public, including protocols regarding redactions and responding to public disclosure requests; and
• Policies requiring that any contracts with a third-party vendor for cloud storage explicitly state that the videos are owned by the police agency and that its use and access are governed by agency policy.

(Id. at 37.)

This bill seeks to implement some of these recommendations, by requiring any agency that uses body-worn cameras to have a policy that is collectively bargained and specified:

• A peace officer is allowed to review his or her body-worn camera video and audio recordings before he or she makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding.
• A peace officer is not required to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any criminal or civil proceeding.
• A peace officer involved in an incident involving a serious use of force shall not review his or her body-worn camera recording until accompanied by an assigned independent investigator or a supervisor. The separating and monitoring of the peace officer involved in a serious use of force shall be maintained during the review of the body-worn camera video and audio recordings and this review shall not occur jointly among involved employees. Once the recordings are approved, as to the validity of the body-worn camera recordings and any other relevant recordings are also approved as their validity, an officer may have a legal representative present during the review of the recordings without the independently assigned investigator or supervisor present, before the peace officer makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding.
• The policy shall be available to all peace officers in a written form.
• The policy shall be available to the public for viewing.

This bill, additionally, encourages any agency that uses body-worn cameras to include the following in the policy:

• The time, place, circumstances, and duration in which the body-worn camera shall be operational.
• Which peace officers shall wear the body-worn camera and when they shall wear it.
• Prohibitions against the use of body-worn camera equipment and footage in specified circumstances, such as when the peace officer is off-duty.
• The type of training and length of training required for body-worn camera usage.
• Public notification of field use of body-worn cameras, including the circumstances in which citizens are to be notified that they are being recorded.
• The manner in which to document a citizen’s refusal from being recorded under certain circumstances.
• The use of body-worn camera video and audio recordings in internal affairs cases.
• The use of body-worn camera video and audio recordings in criminal and civil case preparation and testimony.
• The transfer and use of body-worn camera video and audio recordings to other law enforcement agencies, including establishing what constitutes a need-to-know basis and what constitutes a right-to-know basis.

3. Review of Body-Camera Footage

This bill would require a law enforcement agency that uses body cameras to develop a body-worn camera policy through the collective bargaining process. The bill specifies that the body worn camera policy shall allow a peace officer to view body-camera footage prior to making an incident report or giving an internal affairs statement. The proponents of the bill contend that allowing an officer to view then body-camera footage prior to making a report will insure that the report is accurate and complete. The opponents believe that by allowing a peace officer to review the body-camera footage prior to making a report, the peace officer will tailor or conform the report to reflect only what can be observed in the footage.

SHOULD PEACE OFFICERS BE ALLOWED TO VIEW BODY-CAMERA AUDIO AND VIDEO RECORDINGS PRIOR TO MAKING A REPORT?

4. Argument in Support

According to the Peace Officers Research Association of California:

AB 1940 would require a law enforcement agency, department, or entity, if it employs peace officers and uses body-worn cameras for those officers, to develop a body-worn camera policy. The bill would require the policy to allow a peace officer to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any criminal or civil proceeding. In addition, all changes and references to the California Public Records Act have been amended out of the bill. Finally, AB 1940 has been amended to be prospective only, protecting MOU’s that have already been negotiated prior to January 1, 2015.

PORAC supports the use of body worn cameras when they are implemented and used responsibly. With the addition of a body worn camera policy that would require an officer to view the footage prior to making a statement, we believe that the reports and conclusions will be more detailed, relevant, and inherently more accurate. The other important aspect of this bill is that all of these policies and procedures are collectively bargained.

5. Argument in Opposition

According to the California Public Defenders Association:

This bill would exempt body-worn camera recordings that depict the use of force resulting in serious injury or death from public disclosure pursuant to the act unless a judicial determination is made, after the adjudication of any civil or criminal proceeding related to the use of force incident, that the interest in public disclosure outweighs the need to protect the individual right to privacy.

Requiring local law enforcement agencies, as part of their policy on body-worn cameras, to review the recorded material prior to writing a report or in other situations would have a tendency to allow law enforcement officers to conform their reports or testimony to what the recording may show. This could stand in the way of determining the truth of what actually took place. This would be analogous to allowing, or even mandating, that a student taking a test be allowed to read the answers that would be on the test, before taking the test. While one might get better test results, the grade on the test would not be reflective of what the student actually knows. Thus, in many respects, the requirement of testing becomes a farce.

Further, by limiting access to these recordings, this bill decreases transparency in the actions of law enforcement officers and diminishes public access to recordings of the actions of law enforcement officers.

In last year’s session, numerous bills were advanced for the purposes of requiring body-worn cameras by officers in order to improve public safety and confidence in local law enforcement agencies. As you know, these bills were responses to the killings of unarmed African-American males across the country. As we saw in many of those cases, access to this footage—whether taken by a body-camera or by a bystander—is crucial for justice to be sought by the victim or victim’s family. Further, the public must be able to hold police officers accountable for their egregious actions, which will hopefully lead to use-of-force police changes within the department.

This legislation—by allowing officers to review, and therefore conform their reports to the footage; and ultimately withhold the footage—is a step backward in the fight for greater transparency and improved community police relations.

-- END –

1. Penal Code section 633 also exempts listed law enforcement from the prohibitions in sections 631, 632.5, 632.6, and 632.7. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1940

Author:(Cooper)

As Amended Ver:May 31, 2016

Majority vote

SUMMARY: Requires law enforcement agencies that employ peace officers to develop body-worn camera policies and that these policies are subject to collective bargaining. Specifically, this bill:

1. Requires a law enforcement agency, department, or entity that employs peace officers that use body-worn cameras to develop a policy related to the use of body worn cameras, and requires that any policy be developed in accordance with state and local collective bargaining procedures.
2. States that the policy shall allow a peace officer to review his or her body-worn camera video and audio recordings before he or she makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding, and an officer is not required to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any civil or criminal proceeding.
3. Provides that a peace officer involved in an incident involving a serious use of force shall not review his or her body-worn camera recording until accompanied by an assigned independent investigator or supervisor. The separating and monitoring of the peace officer involved in a serious use of force shall be maintained during the review of the body-worn camera video and audio recordings and this review shall not jointly among involved employees. Once the recordings are approved as to the validity of the body-worn camera recordings and any other relevant recordings are also approved as to their validity, an officer may have a legal representative present during the review of the recording without the independently assigned investigator or supervisor present, before the peace officer makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding.
4. The policy shall be available to all peace officers in a written form, and shall be available to the public for viewing.
5. Requires that the body-worn camera policy prohibit a peace officer from making a video or audio recording in a health care facility.
6. Provides that in developing the policy, law enforcement agencies, departments, or entities are encouraged to include the following in the policy:
   1. The time, place, circumstances, and duration in which the body-worn camera shall be operational;
   2. Which peace officers shall wear the body-worn camera and when they shall wear it;
   3. Prohibitions against the use of body-worn camera equipment and footage in specified circumstances, such as when the peace officer is off-duty.
   4. The type of training and length of training required for body-worn camera usage;
   5. Public notification of field use of body-worn cameras, including the circumstances in which citizens are to be notified that they are being recorded;
   6. The manner in which to document a citizen's refusal from being recorded under certain circumstances;
   7. The use of body-worn camera video and audio recordings in internal affairs cases;
   8. The use of body-worn camera video and audio recordings in criminal and civil case preparation and testimony;
   9. The transfer and use of body-worn camera video and audio recordings to other law enforcement agencies, including establishing what constitutes a need-to-know basis and what constitutes a right-to-know basis; and,
   10. A peace officer shall not use a personal device to make an unauthorized recording of the video or audio taken from a body-worn camera.
7. Defines "serious use of force" to mean any of the following:
   1. Force resulting in death;
   2. Force resulting in loss of consciousness;
   3. Force resulting in protracted loss, impairment, serious disfigurement, or function of any body part or organ;
   4. A weapon strike to the head; and,
   5. Intentional firearm discharge at a person, regardless of injury.
8. Defines "body-worn camera" to mean a device attached to the uniform or body of a peace officer that records video, audio, or both, in a digital or analog format.
9. Defines "peace officer" to mean any person designated as a peace officer pursuant to existing law.
10. Exempts a law enforcement agency that has developed a body-worn camera policy pursuant to collective bargaining, prior to January 1, 2017, from the body-worn camera policy requirements.

EXISTING LAW:

1. Provides that it is a an alternate felony/misdemeanor for any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding $2,500, or by imprisonment in the county jail not exceeding one year, or by imprisonment in the county jail for 16 months, or two or three years, or by both a fine and imprisonment.
2. States that every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding $2,500, or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
3. Defines "confidential communication" to include any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or any legislative, judicial, executive or administrative proceeding open to the public, or in any circumstance that the parties may reasonably expect that the communication may be overheard or recorded.
4. Provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no state cost. Significant nonreimbursable cost to local agencies that provide body-worn cameras to their peace officers. These requirements apply only if the agency uses body-worn cameras.

COMMENTS: According to the author, "There is currently no law requiring law enforcement agencies that use body worn cameras (BWC) to develop policies and procedures around their use. AB 1940 will ensure that the acquisition and deployment of BWC equipment is codified for each agency and may be available for administrative review, legal proceedings and public and peace officer review. AB 1940 will ensure that law enforcement management and labor work in concert to develop BWC policy so that mission of the department is met as well as the working conditions of the employee.

"AB 1940 will also set a statewide policy that peace officers can access BWC footage prior to writing reports, preparing for criminal or civil court testimony and preparing for orders to appear in internal affairs investigations. This access ensures accuracy in memory recall and serves the best interest of public and law enforcement relations and the judicial processes.

"The discussion of the release of BWC data to the public vs. individual privacy, as well as the preservation evidence, and how those issues interface with the California Public Records Act must be addressed. AB 1940 strikes a balance that in consistent with current law that exempts most evidence from public view, but allows for its release by a third party, judicial determination."

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0003306

ASSEMBLY THIRD READING

ATR Bill Id:AB 1940

Author:(Cooper)

As Amended Ver:May 3, 2016

Majority vote

SUMMARY: Requires law enforcement agencies that employ peace officers to develop body-worn camera policies and that these policies are subject to collective bargaining. Specifically, this bill:

1. Requires a law enforcement agency, department, or entity that employs peace officers that use body-worn cameras to develop a policy related to the use of body worn cameras, and requires that any policy be developed in accordance with state and local collective bargaining procedures.
2. States that the policy shall allow a peace officer to review his or her body-worn camera video and audio recordings before he or she makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding, and an officer is not required to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any civil or criminal proceeding.
3. Provides that a peace officer involved in an incident involving a serious use of force shall not review his or her body-worn camera recording until accompanied by an assigned independent investigator or supervisor. The separating and monitoring of the peace officer involved in a serious use of force shall be maintained during the review of the body-worn camera video and audio recordings and this review shall not jointly among involved employees. Once the recordings are approved as to the validity of the body-worn camera recordings and any other relevant recordings are also approved as to their validity, an officer may have a legal representative present during the review of the recording without the independently assigned investigator or supervisor present, before the peace officer makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding.
4. The policy shall be available to all peace officers in a written form, and shall be available to the public for viewing.
5. Provides that in developing the policy, law enforcement agencies, departments, or entities are encouraged to include the following in the policy:
   1. The time, place, circumstances, and duration in which the body-worn camera shall be operational;
   2. Which peace officers shall wear the body-worn camera and when they shall wear it;
   3. Prohibitions against the use of body-worn camera equipment and footage in specified circumstances, such as when the peace officer is off-duty.
   4. The type of training and length of training required for body-worn camera usage;
   5. Public notification of field use of body-worn cameras, including the circumstances in which citizens are to be notified that they are being recorded;
   6. The manner in which to document a citizen's refusal from being recorded under certain circumstances;
   7. The use of body-worn camera video and audio recordings in internal affairs cases;
   8. The use of body-worn camera video and audio recordings in criminal and civil case preparation and testimony;
   9. The transfer and use of body-worn camera video and audio recordings to other law enforcement agencies, including establishing what constitutes a need-to-know basis and what constitutes a right-to-know basis; and,
   10. A peace officer shall not use a personal device to make an unauthorized recording of the video or audio taken from a body-worn camera.
6. Defines "serious use of force" to mean any of the following:
   1. Force resulting in death;
   2. Force resulting in loss of consciousness;
   3. Force resulting in protracted loss, impairment, serious disfigurement, or function of any body part or organ;
   4. A weapon strike to the head; and,
   5. Intentional firearm discharge at a person, regardless of injury.
7. Defines "body-worn camera" to mean a device attached to the uniform or body of a peace officer that records video, audio, or both, in a digital or analog format.
8. Defines "peace officer" to mean any person designated as a peace officer pursuant to existing law.

EXISTING LAW:

1. Provides that it is a an alternate felony/misdemeanor for any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding $2,500, or by imprisonment in the county jail not exceeding one year, or by imprisonment in the county jail for 16 months, or two or three years, or by both a fine and imprisonment.
2. States that every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding $2,500, or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
3. Defines "confidential communication" to include any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or any legislative, judicial, executive or administrative proceeding open to the public, or in any circumstance that the parties may reasonably expect that the communication may be overheard or recorded.
4. Provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no state cost. Significant nonreimbursable cost to local agencies that provide body-worn cameras to their peace officers. These requirements apply only if the agency uses body-worn cameras.

COMMENTS: According to the author, "There is currently no law requiring law enforcement agencies that use body worn cameras (BWC) to develop policies and procedures around their use. AB 1940 will ensure that the acquisition and deployment of BWC equipment is codified for each agency and may be available for administrative review, legal proceedings and public and peace officer review. AB 1940 will ensure that law enforcement management and labor work in concert to develop BWC policy so that mission of the department is met as well as the working conditions of the employee.

"AB 1940 will also set a statewide policy that peace officers can access BWC footage prior to writing reports, preparing for criminal or civil court testimony and preparing for orders to appear in internal affairs investigations. This access ensures accuracy in memory recall and serves the best interest of public and law enforcement relations and the judicial processes.

"The discussion of the release of BWC data to the public vs. individual privacy, as well as the preservation evidence, and how those issues interface with the California Public Records Act must be addressed. AB 1940 strikes a balance that in consistent with current law that exempts most evidence from public view, but allows for its release by a third party, judicial determination."

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0003005

Date of Hearing: May 18, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1940

Author:(Cooper) – As Amended Ver:May 3, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill requires law enforcement agencies, departments or entities to develop a policy for peace officer use of body-worn cameras, makes that policy subject to collective bargaining, and requires that the policy allow a peace officer to review camera footage before making a report or statement. A peace officer involved in a serious use of force, as defined, may not review the recording until accompanied by an assigned investigator or supervisor.

FISCAL EFFECT:

No state cost.

Significant nonreimbursable cost to local agencies that provide body-worn cameras to their peace officers. These requirements apply only if the agency uses body-worn cameras.

COMMENTS:

1. Background. As a result of a string of well-publicized incidents involving the use of force by law enforcement officers against African-American men, beginning with the shooting of Michael Brown in Ferguson, Missouri on August 9, 2014, a public debate has emerged over the use of body-worn cameras by peace officers. According to the National Conference of State Legislatures, there are no fewer than 30 states currently considering some form of legislation on the topic.

A body-worn camera (BWC) is a small video camera – typically attached to an officer's clothing, helmet or sunglasses – that can capture, from an officer's point of view, video and audio recordings of activities, including traffic stops, arrests, searches, interrogations, and critical incidents such as officer-involved shootings or serious use of force.

1. Purpose. According to the author, "AB 1940 requires law enforcement agencies to develop, through the collective bargaining process, policies and procedures on the use of body worn cameras (BWC). Additionally, the bill authorizes officer review of BWC footage and recommends best practices for law enforcement to consider when establishing policies."

This bill is intended to establish certain rights for peace officers that use body-worn cameras while on duty, including the right to review camera footage before making a report and the right to have a formal policy regarding body-worn camera use subject to collective bargaining.

1. Support. According to the sponsor, "PORAC supports the use of body worn camera when they are implemented and used responsibly. With the addition of a body worn camera policy that would require an officer to view the footage prior to making a statement, we believe that the reports and conclusions will be more detailed, relevant and inherently more accurate. The other important aspect of this bill is that all of these policies and procedures are collectively bargained."
2. Opposition. The American Civil Liberties Union of California is concerned that requiring “that every police department allow a peace officer to review BWC recordings before he or she makes a report, gives an internal affairs statement, or testifies in any criminal or civil proceeding. Creating such a right would seriously undermine effective investigation and fair determination of alleged misconduct."
3. Related legislation. AB 2533 (Santiago), passed by this Committee on May 5, 2016, requires that a public safety officer be given a minimum of three business days' notice before any audio or video data of the officer that was recorded by the officer may be publicly released by the department or other public agency on the Internet.

AB 1957 (Quirk), also on today’s agenda, requires a law enforcement agency to confidentially review body worn camera from serious use of force incidents and require a judicial determination to set the terms of any public release of such footage, while generally requiring the disclosure of footage 60 days after the commencement of a misconduct investigation and restricting the public disclosure of footage depicting domestic violence victims, minors, or witness statements.

AB 2611 (Low), pending in the Assembly, exempts from disclosure under the California Public Records Act (CPRA) any visual or audio recording of another that depicts death or serious bodily injury in such a morbid and sensational manner that the content is highly offensive to a reasonable person, and any public interest or law enforcement purpose for disclosure is clearly outweighed by the public interest in nondisclosure, and any recording of the death of a peace officer, unless authorized by his or her family.

1. Previous legislation. AB 66 (Weber) would have imposed specified requirements on a law enforcement agency that requires its officers to use body worn cameras, including a requirement that the policies and procedures be posted online, that peace officers be banned from making personal copies of video footage, that officers be allowed to review their own footage before making an initial statement and report, and exempting footage depicting sexual or domestic violence victims from public disclosure. This bill was held on this Committee’s Suspense file.

AB 69 (Rodriguez), Chapter 461, Statutes of 2015, requires law enforcement agencies to consider specified best practices when establishing policies and procedures for downloading and storing data from body-worn cameras.

AB 1246 (Quirk), held in Assembly Public Safety, would have prohibited the disclosure of a recording made by a body-worn camera, except to the person whose image is recorded by the body worn camera.

SB 175 (Huff), currently inactive on the Assembly floor, requires each department or agency that employs peace officers and elects to require those peace officers to wear body-worn cameras to develop a policy relating to the use of body-worn cameras.

SB 195 (Anderson), held in Senate Rules, would have stated the intent of the Legislature to enact legislation that protects the privacy of individuals recorded by body-worn cameras utilized by law enforcement officers and the privacy of the officers wearing these cameras.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: April 21, 2016

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Ed Chau, Chair

ABPCA Bill Id:AB 1940 (

Author:Cooper) – As Amended Ver:April 14, 2016

SUBJECT: Peace officers: body-worn cameras: policies and procedures

SUMMARY: Requires law enforcement agencies, departments or entities to develop a policy for peace officer use of body-worn cameras, makes that policy subject to collective bargaining, and requires that the policy allow a peace officer to review camera footage before making a report or statement. Specifically, this bill:

1. Requires a law enforcement agency, department, or entity that provides body-worn cameras to its peace officers to develop a policy relating to the use of those cameras.
2. Requires the policy to allow, but not require, a peace officer to review his or her body-worn camera video and audio recordings before he or she makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding.
3. Requires that the policy be developed in accordance with the Meyers-Milias-Brown Act and the Ralph C. Dills Act, pertaining to the collective bargaining rights of peace officers.
4. Encourages law enforcement agencies, departments, or entities to address the following issues in developing the policy:
   1. The time, place, circumstances, and duration in which the body-worn camera shall be operational;
   2. Which peace officers shall wear the body-worn camera and when they shall wear it;
   3. Any prohibitions against the use of body-worn camera equipment and footage in specified circumstances, such as when the peace officer is off-duty;
   4. The type of training and length of training required for body-worn camera usage;
   5. Public notification of field use of body-worn cameras, including the circumstances in which citizens are to be notified that they are being recorded;
   6. The manner in which to document a citizen’s refusal from being recorded under certain circumstances;
   7. The use of body-worn camera video and audio recordings in internal affairs cases;
   8. The use of body-worn camera video and audio recordings in criminal and civil case preparation and testimony; and,
   9. The transfer and use of body-worn camera video and audio recordings to other law enforcement agencies, including establishing what constitutes a need-to-know basis and what constitutes a right-to-know basis.
5. Encourages law enforcement agencies, departments, or entities to include the following provisions in developing the policy:
   1. The policy may be available to all peace officers in a written form.
   2. The policy may be available to the public for viewing.
6. Defines the terms "body-worn camera" and "police officer."

EXISTING LAW:

1. Generally requires, pursuant to the California Public Records Act (CPRA), that public agencies disclose a government record to the public upon request, unless there is a specific reason to withhold it or if a public agency can establish that the public interest in nondisclosure clearly outweighs the public interest in disclosure. (Government Code (GC) Section 6250, et seq.)
2. Provides, pursuant to the Public Safety Officers Procedural Bill of Rights Act, a variety of employment rights and remedies for all public safety officers within California. (GC 3300, et seq.)
3. Provides, pursuant to the Meyers-Milias-Brown Act, for the organization of and collective bargaining by employees of local governments. (GC 3500, et seq.)
4. Provides, pursuant to the Ralph C. Dills Act, for the organization of and collective bargaining by employees of state governments. (GC 3512, et seq.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Purpose of this bill. This bill is intended to establish certain rights for peace officers that use body-worn cameras while on duty, including the right to review camera footage before making a report and the right to have a formal policy regarding body-worn camera use subject to collective bargaining. This bill is sponsored by the Peace Officers Research Association of California (PORAC).
2. Author's statement. According to the author, "AB 1940 requires law enforcement agencies to develop, through the collective bargaining process, policies and procedures on the use of body worn cameras (BWC). Additionally, the bill authorizes officer review of BWC footage and recommends best practices for law enforcement to consider when establishing policies."
3. The use of body-worn cameras in law enforcement. As a result of a string of well-publicized incidents involving the use of force by law enforcement officers against African-American men, beginning with the shooting of Michael Brown in Ferguson, Missouri on August 9, 2014, a public debate has emerged over the use of body-worn cameras by peace officers. According to the National Conference of State Legislatures, there are no fewer than 30 states currently considering some form of legislation on the topic.
   
   A body-worn camera is a small video camera – typically attached to an officer's clothing, helmet or sunglasses – that can capture, from an officer's point of view, video and audio recordings of activities, including traffic stops, arrests, searches, interrogations, and critical incidents such as officer-involved shootings.
   
   There is substantial evidence to suggest that body-worn cameras can have positive effects on policing. A 2012 study of the Rialto, CA police department's use of body-worn cameras found that the devices were correlated with a 60% reduction in officer use of force incidents following camera deployment, with twice the number of use of force incidents reported among the group of officers without cameras. The report also found an 88% reduction in the number of citizens' complaints in the year after cameras were introduced. To explain the effect of body-worn cameras, the Rialto Chief of Police was quoted as saying, "Whether the reduced number of complaints was because of the officers behaving better or the citizens behaving better – well, it was probably a little bit of both."
   
   According to a November 2014 report by the U.S. Department of Justice's Office of Community Oriented Policing Services and the Police Executive Research Forum (PERF), a broad survey of police departments that had deployed body-worn cameras found a number of benefits: "body-worn cameras are useful for documenting evidence; officer training; preventing and resolving complaints brought by members of the public; and strengthening police transparency, performance and accountability...body-worn cameras [also] help police departments ensure events are also captured from an officer's perspective." However, the report also notes that "[t]he use of body-worn cameras also raises important questions about privacy and trust."
4. This bill in practice. As noted above, this bill does three things: requires the creation of a body-worn camera policy (with some recommendations), requires that the policy be subject to collective bargaining, and requires that officers have the opportunity to review their own camera footage before submitting a report or statement, or prior to a legal proceeding.
5. Collective bargaining and officer review of camera footage. Existing law permits state and local public safety employees to organize and bargain collectively over matters such as working conditions.
   
   According to the author, "Many law enforcement agencies deploying BWC’s have already addressed the issue of officer review through the collective bargaining process. Some, such as the California Highway Patrol, are currently in the collective bargaining process on BWC policy. In research, most of these agreements on officer review have given the officer full view of BWC data before the officer writes the 'initial' report, before court preparation/testimony, and in internal affairs investigations. Other agencies give unspecified and specified latitude to management having final say but maintain officer review. Oakland Police Department (OPD) is routinely cited for not giving officers initial review. However, OPD is currently under consent decree and is bound by policies imposed upon it outside of the collective bargaining process."
   
   The author contends, "AB 1940 will ensure that law enforcement management and labor work in concert to develop BWC policy so the mission of the department is met as well as the working conditions of the employee."
6. The debate over whether to permit officer review. According to a 2014 PERF report entitled "Implementing a Body-Worn Camera Program – Recommendations and Lessons Learned," there are differing views as to whether officers should be allowed to review camera footage prior to making a statement about an incident in which they were involved.
   
   "According to many police executives, the primary benefit to officer review is that it allows officers to recall events more clearly, which helps get to the truth of what really happened. Some police executives, on the other hand, said that it is better for an officer's statement to reflect what he or she perceived during the event, rather than what the camera footage revealed. The majority of police executives consulted by PERF are in favor of allowing officers to review body-worn camera footage prior to making a statement about an incident in which they were involved. They believe that this approach provides the best evidence of what actually took place."
   
   "Police executives who favor review said that officers will be held accountable for their actions regardless of whether they are allowed to watch the video recordings prior to making a statement. 'Officers are going to have to explain their actions, no matter what the video shows,' said Chief Burbank of Salt Lake City. Chief Frazier of Surprise, Arizona, said, 'If an officer has acted inappropriately, and those actions were recorded, the officer cannot change the record and will have to answer for his or her actions. What will be gained by a review of the video is a more accurate accounting of the incident.'
   
   "Other police executives, however, said that the truth—and the officer's credibility—are better served if an officer is not permitted to review footage of an incident prior to making a statement. 'In terms of the officer's statement, what matters is the officer's perspective at the time of the event, not what is in the video,' said Major Mark Person of the Prince George’s County (Maryland) Police Department. 'That perspective is what they are going to have to testify to. If officers watch the video before making a statement, they might tailor the statement to what they see. It can cause them to second-guess themselves, which makes them seem less credible.'"
   
   The author's office points out that it is an established precedent in California that officers can review video footage from dashboard cameras mounted in police cars prior to drafting a report or statement, and that this bill would be an extension of that precedent.
7. Recent amendments. According to the author's office, an agreement in concept has been reached with the Assembly Public Safety Committee to narrow the officer review provision slightly by requiring the review of an unvalidated recording to be supervised by an independent investigator or supervisor for incidents involving a serious use of force, as defined. Because of the approaching policy committee deadline, the author's office has committed to making those amendments in the Assembly Appropriations Committee, should the bill be passed by this Committee.
8. Arguments in support. According to the sponsor, "PORAC supports the use of body worn camera when they are implemented and used responsibly. With the addition of a body worn camera policy that would require an officer to view the footage prior to making a statement, we believe that the reports and conclusions will be more detailed, relevant and inherently more accurate. The other important aspect of this bill is that all of these policies and procedures are collectively bargained."
9. Arguments in opposition. According to the American Civil Liberties Union of California, "[t]his bill would potentially hide critical evidence of wrongdoing by police officers for years after an incident by creation an unprecedented prohibition against disclosure of public records taken by body-worn cameras (BWCs) when those recordings depict the use of force resulting in serious injury or death. This bill would further require that every police department allow a peace officer to review BWC recordings before he or she makes a report, gives an internal affairs statement, or testifies in any criminal or civil proceeding. Creating such a right would seriously undermine effective investigation and fair determination of alleged misconduct."
10. Related legislation. AB 2533 (Santiago) would require that a public safety officer be given a minimum of three business days' notice before any audio or video data of the officer that was recorded by the officer may be publicly released by the department or other public agency on the Internet. AB 2533 is currently pending in the Assembly Appropriations Committee.

AB 1957 (Quirk) would require a law enforcement agency to confidentially review body worn camera from serious use of force incidents and require a judicial determination to set the terms of any public release of such footage, while generally requiring the disclosure of footage 60 days after the commencement of a misconduct investigation and restricting the public disclosure of footage depicting domestic violence victims, minors, or witness statements. AB 1957 is currently pending in the Assembly Appropriations Committee.

AB 2611 (Low) would exempt from disclosure under the CPRA records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files, including audio or video recordings, compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. AB 2611 is currently pending in the Assembly Appropriations Committee.

1. Previous legislation. AB 66 (Weber) would have imposed specified requirements on a law enforcement agency that requires its officers to use body worn cameras, including a requirement that the policies and procedures being posted online, that peace officers be banned from making personal copies of video footage, that officers be allowed to review their own footage before making an initial statement and report, and exempt footage depicting sexual or domestic violence victims from public disclosure. This bill was held in the Assembly Appropriations Committee.

AB 69 (Rodriguez), Chapter 461, Statutes of 2015, requires law enforcement agencies to consider specified best practices when establishing policies and procedures for downloading and storing data from body-worn cameras.

AB 1246 (Quirk) would prohibit the disclosure of a recording made by a body-worn camera, except to the person whose image is recorded by the body worn camera. AB 1246 died in Assembly Public Safety Committee.

SB 175 (Huff) would require each department or agency that employs peace officers and that elects to require those peace officers to wear body-worn cameras to develop a policy relating to the use of body-worn cameras. SB 175 is currently on the inactive file on the Assembly Floor.

SB 195 (Anderson) would state the intent of the Legislature to enact legislation that protects the privacy of individuals recorded by body-worn cameras utilized by law enforcement officers and the privacy of the officers wearing these cameras. SB 195 died in the Senate Rules Committee.

1. Double-referral. This bill was double-referred to the Assembly Public Safety Committee, where it was heard on April 20, 2016.

REGISTERED SUPPORT / OPPOSITION:

Support

Peace Officers Research Association of California (PORAC) (sponsor)

Association for Los Angeles Deputy Sheriffs

Los Angeles Police Protective League

Los Angeles County Deputy Probation Officers Union, AFSCME, Local 685

Riverside Sheriffs Association

Opposition

American Civil Liberties Union of California

Analysis Prepared by: Hank Dempsey / P. & C.P. / (916) 319-2200

Date of Hearing:

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1940

Author:(Cooper) – As Amended Ver:April 14, 2016

SUMMARY:

Requires law enforcement agencies that employ peace officers to develop body-worn camera policies and that these policies are subject to collective bargaining. Specifically, this bill:

1. Requires a law enforcement agency, department, or entity that employs peace officers uses body-worn cameras for those officers, the agency, department, or entity shall develop a policy relating to the use of body-worn cameras, and requires that any policy be developed in accordance with state and local collective bargaining procedures.
   
2. States that the policy shall allow a peace officer to review his or her body-worn camera video and audio recordings before he or she makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding, and an officer is not required to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any civil or criminal proceeding.
   
3. Provides that in developing the policy, law enforcement agencies, departments, or entities are encouraged to include the following in the policy:
   
   1.  The time, place, circumstances, and duration in which the body-worn camera shall be operational.
   2. Which peace officers shall wear the body-worn camera and when they shall wear it.
      
   3.  Prohibitions against the use of body-worn camera equipment and footage in specified circumstances, such as when the peace officer is off-duty.
   4.  The type of training and length of training required for body-worn camera usage.
      
   5.  Public notification of field use of body-worn cameras, including the circumstances in which citizens are to be notified that they are being recorded.
      
   6.  The manner in which to document a citizen’s refusal from being recorded under certain circumstances.
      
   7.  The use of body-worn camera video and audio recordings in internal affairs cases.
      
   8. The use of body-worn camera video and audio recordings in criminal and civil case preparation and testimony.
      
   9. The transfer and use of body-worn camera video and audio recordings to other law enforcement agencies, including establishing what constitutes a need-to-know basis and what constitutes a right-to-know basis.
      
   10. The policy may be available to all peace officers in a written form.
       
   11. The policy may be available to the public for viewing.
       
4. Defines "body-worn camera" to mean a device attached to the uniform or body of a peace officer that records video, audio, or both, in a digital or analog format.
   
5. Defines "peace officer" to mean any person designated as a peace officer pursuant to existing law.

EXISTING LAW:

1. Provides that it is a an alternate felony/misdemeanor for any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding $2,500, or by imprisonment in the county jail not exceeding one year, or by imprisonment in the county jail for 16 months, or two or three years, or by both a fine and imprisonment. (Pen. Code, § 631.)
2. States that every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding $2,500, or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. (Pen. Code, § 632, subd. (a).)
3. Defines "confidential communication" to include any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or any legislative, judicial, executive or administrative proceeding open to the public, or in any circumstance that the parties may reasonably expect that the communication may be overheard or recorded. (Pen. Code, § 632, subd. (c).)
4. Provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record. (Pen. Code, § 633.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "There is currently no law requiring law enforcement agencies that use body worn cameras (BWC) to develop policies and procedures around their use. AB 1940 will ensure that the acquisition and deployment of BWC equipment is codified for each agency and may be available for administrative review, legal proceedings and public and peace officer review. AB 1940 will ensure that law enforcement management and labor work in concert to develop BWC policy so that mission of the department is met as well as the working conditions of the employee.

"AB 1940 will also set a statewide policy that peace officers can access BWC footage prior to writing reports, preparing for criminal or civil court testimony and preparing for orders to appear in internal affairs investigations. This access ensures accuracy in memory recall and serves the best interest of public and law enforcement relations and the judicial processes.

"The discussion of the release of BWC data to the public vs. individual privacy, as well as the preservation evidence, and how those issues interface with the California Public Records Act must be addressed. AB 1940 strikes a balance that in consistent with current law that exempts most evidence from public view, but allows for its release by a third party, judicial determination."

1. Background: A recent report released by U.S. Department of Justice's Office of Community Oriented Policing Services and the Police Executive Research Forum studied the use of body-worn cameras by police agencies. This research included a survey of 250 police agencies, interviews with more than 40 police executives, a review of 20 existing body-camera policies, and a national conference at which more than 200 police chiefs, sheriffs, federal justice representatives, and other experts shared their knowledge of and experiences with body-worn cameras. The report shows that body-worn cameras can help agencies demonstrate transparency and address the community's questions about controversial events. Among other reported benefits are that the presence of a body-worn camera have helped strengthen officer professionalism and helped to de-escalate contentious situations, and when questions do arise following an event or encounter, police having a video record helps lead to a quicker resolution. (Miller and Toliver, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned, Police Executive Research Forum (Nov. 2014).)
   
   The report recommends that each agency develop its own comprehensive written policy to govern body-worn camera usage, that includes the following:
   1. Basic camera usage, including who will be assigned to wear the cameras and where on the body the cameras are authorized to be placed;
      
   2. The designated staff member(s) responsible for ensuring cameras are charged and in proper working order, for reporting and documenting problems with cameras, and for reissuing working cameras to avert malfunction claims if critical footage is not captured;
      
   3. Recording protocols, including when to activate the camera, when to turn it off, and the types of circumstances in which recording is required, allowed, or prohibited;
      
   4. The process for downloading recorded data from the camera, including who is responsible for downloading, when data must be downloaded, where data will be stored, and how to safeguard against data tampering or deletion;
      
   5. The method for documenting chain of custody;
      
   6. The length of time recorded data will be retained by the agency in various circumstances;
      
   7. The process and policies for accessing and reviewing recorded data, including the persons authorized to access data and the circumstances in which recorded data can be reviewed;
      
   8. Policies for releasing recorded data to the public, including protocols regarding redactions and responding to public disclosure requests; and,
      
   9. Policies requiring that any contracts with a third-party vendor for cloud storage explicitly state that the videos are owned by the police agency and that its use and access are governed by agency policy.
      
      (Id. at pp. 37-38.)

This bill seeks to implement some of these recommendations, by requiring any agency that uses body-worn cameras to have a policy specifying: the duration, time, and place that body-worn cameras must be worn and operational; the length of time video collected by officers will be stored by the department or agency; the procedures for, and limitations on, public access to recordings taken by body-worn cameras, provided that those procedures and limitations are in accordance with state law that governs public access to records; and the process for accessing and reviewing recorded data, including, but not limited to, the persons authorized to access data and the circumstances in which recorded data may be reviewed.

The report also highlighted the need for training on the use of body-worn cameras and the applicable procedures and policies. (Id. at pp. 47-48) This bill states that the policy developed by each agency must include the training that will be provided on the use of body-worn cameras. Lastly, the bill requires that each officer who has to wear a body-worn camera must be provided with a copy of the policies.

1. Review of Body-Camera Footage: This bill would require a law enforcement agency that uses body cameras to develop a body-worn camera policy through the collective bargaining process. The bill specifies that the body worn camera policy shall allow a peace officer
   to view body-camera footage prior to making an incident report or giving an internal affairs statement. The proponents of the bill contend that allowing an officer to view then body-camera footage prior to making a report will insure that the report is accurate and complete. The opponents believe that by allowing a peace officer to review the body-camera footage prior to making a report, the peace officer will tailor or conform the report to reflect only what can be observed in the footage. Should peace officers be allowed to view body-camera audio and video recordings prior to making a report?
   
2. Argument in Support: According to the Peace Officers Research Association of California, "AB 1940 would require a law enforcement agency, department, entity, if it employs peace officers and uses body-worn cameras for those officers, to develop a body-worn camera policy. This bill would require the policy to allow a peace officer to review his or her video and audio recordings before making a report, giving an internal affairs statement before any civil or criminal proceeding.
   
   "PORAC supports the use of body-worn cameras when they are implemented and used responsibly. With the addition of a body-worn camera policy that would require an officer to view footage prior to making a statement, we believe that the reports and conclusions will be more detailed, relevant, and inherently more accurate. The other important aspect of this bill is that all of these policies and procedures are collectively bargained."
   
3. Argument in Opposition: According to the American Civil Liberties Union, "Under AB 1940, when an officer is involved in a serious use of force incident – or any other alleged misconduct of any type – he or she would be allowed to review BWC recordings of the incident before making any statement, report or testimony. Interestingly, this right would be extended only to officers, not to any person who is subject of the recording.
   
   “For many good reasons, multiple law enforcement agencies have existing policies directly contrary to this rule. The Oakland Police Department, for instance, has a policy prohibiting officers from reviewing BWC video prior to making a statement in an investigation arising out of a Level 1 use of force (the most serious uses of forces, including shootings and weapon strikes to the head). Similarly, When the Los Angeles Sheriff’s Department recently installed video cameras in its jails, the department, after careful consideration, adopted a policy that requires deputies in the jails to file reports of incidents before reviewing video, for many of the reasons we articulate below.
   
   “In Implementing Body-Worn Camera Program: Recommendation and Lessons Learned, published by the Community Oriented Policing Services (COPS) division of the U.S. Department of Justice, a police executive explained as follows, “[i]n terms of the officer’s statement, what matters is the officer’s perspective at the time of the event, not what is in the video.” See id. At 30 (COPS & PERF 2014) (emphasis added).
   
   “At least three additional reasons support not allowing pre-statement and report reviewing of BWC recordings by officers. First, it inhibits intentionally false statements. If an officer is not sure what was captured by a BWC, he or she will likely feel pressure to tell the truth about an incident in order not to later be revealed untruthful by the video. However, if an officer is inclined to distort the truth to justify a shooting, showing the officer the BWC evidence before taking his or her statement allows the officer to misrepresent facts more effectively, and in ways that the BWC recording will not contradict – saying, for example, that something happened during moments the camera was blocked or footage was blurred.
   
   
   
   
   “Second, even if an officer is truthful, not allowing him or her to review the BWC recordings before making a statement helps ensure that the officer’s initial recollection is not unintentionally tainted by reviewing the recording. For example, the Los Angeles County Office of Independent Review explains:
   
   ‘In our review of the available research, we found ample evidence that seeing additional information [other] than what was experienced (such as seeing the action from a different angle) can alter the memory of an event…The research we reviewed stressed the importance of ‘minimizing post-event misinformation.’ While what is shown on a video is not necessarily ‘misinformation,’ is can certainly be different information than that recalled.’
   
   “BWC recordings are not necessarily more reliable than an officer’s memory. The value of BWC recordings can be affected by where and how they are worn, what movement they are subject to, from what perspective they record the image, and a variety of other factors. But it is essential that the officer’s initial version of events not be influenced by recorded images or sounds.
   
   “Third, precluding pre-statement and report review of BWC recordings advances the public trust regarding the integrity of criminal investigations. We hope and expect that officers will not shade the truth in an investigation. But because showing officers the BWC recordings can be used unscrupulously, it undercuts the legitimacy of the investigation. One of the main purposes of body cameras is to build the public’s confidence in investigations into critical incidents.”

REGISTERED SUPPORT / OPPOSITION:

Peace Officers Research Association of California (Sponsor)
Los Angeles County Professional Peace Officers Association
Association for Los Angeles Deputy Sheriffs Association
Los Police Protective League
Los County Deputy Probation Officers Association, AFSCME, Local 685
Riverside Sheriffs Association
Fraternal Order of Police
Association of Orange County Deputy Sheriffs
California State Law Enforcement Association
Long Beach Police Officers association
Sacramento County Deputy Sheriffs' Association

Opposition

American Civil Liberties Union
California Public Defenders Association
Legal Services for Prisoners with Children

Analysis Prepared by:

Gregory Pagan / PUB. S. / (916) 319-3744

Date of Hearing:

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1940

Author:(Cooper) – As Amended Ver:March 17, 2016

As Proposed to be Amended in Committee

SUMMARY:

Requires law enforcement agencies that employ peace officers to develop body-worn camera policies and that these policies are subject to collective bargaining. Specifically, this bill:

1. Requires a law enforcement agency, department, or entity that employs peace officers uses body-worn cameras for those officers, the agency, department, or entity shall develop a policy relating to the use of body-worn cameras, and requires that any policy be developed in accordance with state and local collective bargaining procedures.
   
2. States that the policy shall allow a peace officer to review his or her body-worn camera video and audio recordings before he or she makes a report, is ordered to give an internal affairs statement, or before any criminal or civil proceeding, and an officer is not required to review his or her body-worn camera video and audio recordings before making a report, giving an internal affairs statement, or before any civil or criminal proceeding.
   
3. Provides that in developing the policy, law enforcement agencies, departments, or entities are encouraged to include the following in the policy:
   
   1.  The time, place, circumstances, and duration in which the body-worn camera shall be operational.
   2. Which peace officers shall wear the body-worn camera and when they shall wear it.
      
   3.  Prohibitions against the use of body-worn camera equipment and footage in specified circumstances, such as when the peace officer is off-duty.
   4.  The type of training and length of training required for body-worn camera usage.
      
   5.  Public notification of field use of body-worn cameras, including the circumstances in which citizens are to be notified that they are being recorded.
      
   6.  The manner in which to document a citizen’s refusal from being recorded under certain circumstances.
      
   7.  The use of body-worn camera video and audio recordings in internal affairs cases.
      
   8. The use of body-worn camera video and audio recordings in criminal and civil case preparation and testimony.
      
   9. The transfer and use of body-worn camera video and audio recordings to other law enforcement agencies, including establishing what constitutes a need-to-know basis and what constitutes a right-to-know basis.
      
   10. The policy may be available to all peace officers in a written form.
       
   11. The policy may be available to the public for viewing.
       
4. Defines "body-worn camera" to mean a device attached to the uniform or body of a peace officer that records video, audio, or both, in a digital or analog format.
   
5. Defines "peace officer" to mean any person designated as a peace officer pursuant to existing law.

EXISTING LAW:

1. Provides that it is a an alternate felony/misdemeanor for any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding $2,500, or by imprisonment in the county jail not exceeding one year, or by imprisonment in the county jail for 16 months, or two or three years, or by both a fine and imprisonment. (Pen. Code, § 631.)
2. States that every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding $2,500, or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. (Pen. Code, § 632, subd. (a).)
3. Defines "confidential communication" to include any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or any legislative, judicial, executive or administrative proceeding open to the public, or in any circumstance that the parties may reasonably expect that the communication may be overheard or recorded. (Pen. Code, § 632, subd. (c).)
4. Provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record. (Pen. Code, § 633.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "There is currently no law requiring law enforcement agencies that use body worn cameras (BWC) to develop policies and procedures around their use. AB 1940 will ensure that the acquisition and deployment of BWC equipment is codified for each agency and may be available for administrative review, legal proceedings and public and peace officer review. AB 1940 will ensure that law enforcement management and labor work in concert to develop BWC policy so that mission of the department is met as well as the working conditions of the employee.

"AB 1940 will also set a statewide policy that peace officers can access BWC footage prior to writing reports, preparing for criminal or civil court testimony and preparing for orders to appear in internal affairs investigations. This access ensures accuracy in memory recall and serves the best interest of public and law enforcement relations and the judicial processes.

"The discussion of the release of BWC data to the public vs. individual privacy, as well as the preservation evidence, and how those issues interface with the California Public Records Act must be addressed. AB 1940 strikes a balance that in consistent with current law that exempts most evidence from public view, but allows for its release by a third party, judicial determination."

1. Background: A recent report released by U.S. Department of Justice's Office of Community Oriented Policing Services and the Police Executive Research Forum studied the use of body-worn cameras by police agencies. This research included a survey of 250 police agencies, interviews with more than 40 police executives, a review of 20 existing body-camera policies, and a national conference at which more than 200 police chiefs, sheriffs, federal justice representatives, and other experts shared their knowledge of and experiences with body-worn cameras. The report shows that body-worn cameras can help agencies demonstrate transparency and address the community's questions about controversial events. Among other reported benefits are that the presence of a body-worn camera have helped strengthen officer professionalism and helped to de-escalate contentious situations, and when questions do arise following an event or encounter, police having a video record helps lead to a quicker resolution. (Miller and Toliver, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned, Police Executive Research Forum (Nov. 2014).)
   
   The report recommends that each agency develop its own comprehensive written policy to govern body-worn camera usage, that includes the following:
   1. Basic camera usage, including who will be assigned to wear the cameras and where on the body the cameras are authorized to be placed;
      
   2. The designated staff member(s) responsible for ensuring cameras are charged and in proper working order, for reporting and documenting problems with cameras, and for reissuing working cameras to avert malfunction claims if critical footage is not captured;
      
   3. Recording protocols, including when to activate the camera, when to turn it off, and the types of circumstances in which recording is required, allowed, or prohibited;
      
   4. The process for downloading recorded data from the camera, including who is responsible for downloading, when data must be downloaded, where data will be stored, and how to safeguard against data tampering or deletion;
      
   5. The method for documenting chain of custody;
      
   6. The length of time recorded data will be retained by the agency in various circumstances;
      
   7. The process and policies for accessing and reviewing recorded data, including the persons authorized to access data and the circumstances in which recorded data can be reviewed;
      
   8. Policies for releasing recorded data to the public, including protocols regarding redactions and responding to public disclosure requests; and,
      
   9. Policies requiring that any contracts with a third-party vendor for cloud storage explicitly state that the videos are owned by the police agency and that its use and access are governed by agency policy.
      
      (Id. at pp. 37-38.)

This bill seeks to implement some of these recommendations, by requiring any agency that uses body-worn cameras to have a policy specifying: the duration, time, and place that body-worn cameras must be worn and operational; the length of time video collected by officers will be stored by the department or agency; the procedures for, and limitations on, public access to recordings taken by body-worn cameras, provided that those procedures and limitations are in accordance with state law that governs public access to records; and the process for accessing and reviewing recorded data, including, but not limited to, the persons authorized to access data and the circumstances in which recorded data may be reviewed.

The report also highlighted the need for training on the use of body-worn cameras and the applicable procedures and policies. (Id. at pp. 47-48) This bill states that the policy developed by each agency must include the training that will be provided on the use of body-worn cameras. Lastly, the bill requires that each officer who has to wear a body-worn camera must be provided with a copy of the policies.

1. Review of Body-Camera Footage: This bill would require a law enforcement agency that uses body cameras to develop a body-worn camera policy through the collective bargaining process. The bill specifies that the body worn camera policy shall allow a peace officer
   to view body-camera footage prior to making an incident report or giving an internal affairs statement. The proponents of the bill contend that allowing an officer to view then body-camera footage prior to making a report will insure that the report is accurate and complete. The opponents believe that by allowing a peace officer to review the body-camera footage prior to making a report, the peace officer will tailor or conform the report to reflect only what can be observed in the footage. Should peace officers be allowed to view body-camera audio and video recordings prior to making a report?
   
2. Argument in Support: According to the Peace Officers Research Association of California, "AB 1940 would require a law enforcement agency, department, entity, if it employs peace officers and uses body-worn cameras for those officers, to develop a body-worn camera policy. This bill would require the policy to allow a peace officer to review his or her video and audio recordings before making a report, giving an internal affairs statement before any civil or criminal proceeding.
   
   "PORAC supports the use of body-worn cameras when they are implemented and used responsibly. With the addition of a body-worn camera policy that would require an officer to view footage prior to making a statement, we believe that the reports and conclusions will be more detailed, relevant, and inherently more accurate. The other important aspect of this bill is that all of these policies and procedures are collectively bargained."
   
3. Argument in Opposition: According to the American Civil Liberties Union, "Under AB 1940, when an officer is involved in a serious use of force incident – or any other alleged misconduct of any type – he or she would be allowed to review BWC recordings of the incident before making any statement, report or testimony. Interestingly, this right would be extended only to officers, not to any person who is subject of the recording.
   
   “For many good reasons, multiple law enforcement agencies have existing policies directly contrary to this rule. The Oakland Police Department, for instance, has a policy prohibiting officers from reviewing BWC video prior to making a statement in an investigation arising out of a Level 1 use of force (the most serious uses of forces, including shootings and weapon strikes to the head). Similarly, When the Los Angeles Sheriff’s Department recently installed video cameras in its jails, the department, after careful consideration, adopted a policy that requires deputies in the jails to file reports of incidents before reviewing video, for many of the reasons we articulate below.
   
   “In Implementing Body-Worn Camera Program: Recommendation and Lessons Learned, published by the Community Oriented Policing Services (COPS) division of the U.S. Department of Justice, a police executive explained as follows, “[i]n terms of the officer’s statement, what matters is the officer’s perspective at the time of the event, not what is in the video.” See id. At 30 (COPS & PERF 2014) (emphasis added).
   
   “At least three additional reasons support not allowing pre-statement and report reviewing of BWC recordings by officers. First, it inhibits intentionally false statements. If an officer is not sure what was captured by a BWC, he or she will likely feel pressure to tell the truth about an incident in order not to later be revealed untruthful by the video. However, if an officer is inclined to distort the truth to justify a shooting, showing the officer the BWC evidence before taking his or her statement allows the officer to misrepresent facts more effectively, and in ways that the BWC recording will not contradict – saying, for example, that something happened during moments the camera was blocked or footage was blurred.
   
   
   
   
   “Second, even if an officer is truthful, not allowing him or her to review the BWC recordings before making a statement helps ensure that the officer’s initial recollection is not unintentionally tainted by reviewing the recording. For example, the Los Angeles County Office of Independent Review explains:
   
   ‘In our review of the available research, we found ample evidence that seeing additional information [other] than what was experienced (such as seeing the action from a different angle) can alter the memory of an event…The research we reviewed stressed the importance of ‘minimizing post-event misinformation.’ While what is shown on a video is not necessarily ‘misinformation,’ is can certainly be different information than that recalled.’
   
   “BWC recordings are not necessarily more reliable than an officer’s memory. The value of BWC recordings can be affected by where and how they are worn, what movement they are subject to, from what perspective they record the image, and a variety of other factors. But it is essential that the officer’s initial version of events not be influenced by recorded images or sounds.
   
   “Third, precluding pre-statement and report review of BWC recordings advances the public trust regarding the integrity of criminal investigations. We hope and expect that officers will not shade the truth in an investigation. But because showing officers the BWC recordings can be used unscrupulously, it undercuts the legitimacy of the investigation. One of the main purposes of body cameras is to build the public’s confidence in investigations into critical incidents.”

REGISTERED SUPPORT / OPPOSITION:

Peace Officers Research Association of California (Sponsor)
Los Angeles County Professional Peace Officers Association
Association for Los Angeles Deputy Sheriffs Association
Los Police Protective League
Los County Deputy Probation Officers Association, AFSCME, Local 685
Riverside Sheriffs Association
Fraternal Order of Police
Association of Orange County Deputy Sheriffs
California State Law Enforcement Association
Long Beach Police Officers association
Sacramento County Deputy Sheriffs' Association

Opposition

American Civil Liberties Union
California Public Defenders Association
Legal Services for Prisoners with Children

Analysis Prepared by:

Gregory Pagan / PUB. S. / (916) 319-3744