BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  April 14, 2015
          Counsel:               Stella Choe



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                        66 (Weber) - As Amended  April 9, 2015


                       As Proposed to be Amended in Committee


          SUMMARY:  Provides statewide policies and guidelines for law  
          enforcement agencies that require its officers to wear body-worn  
          cameras. Specifically, this bill:  

          1)States that if a law enforcement agency requires a body-worn  
            camera to be worn by a peace officer that the agency employs,  
            the agency shall comply with the following requirements:

             a)   Each law enforcement agency shall conspicuously post its  
               policies and procedures regarding body-worn cameras on its  
               Internet Web site;

             b)   A peace officer shall only use the body-worn camera  
               systems issued and approved by the law enforcement agency  
               that employs him or her for official police duties;

             c)   A peace officer shall not make copies of any body-worn  
               camera files for his or her personal use or use a recording  
               device such as a phone camera or secondary video camera to  
               record a body-worn camera file;









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             d)   A peace officer shall not operate a body-worn camera  
               under the following circumstances:

               i)     In a health facility or medical office when patients  
                 may be in view of the body-worn camera or when a health  
                 care practitioner is providing care  to an individual;

               ii)    During an ambulance response to an accident or  
                 illness where the victim is not involved in any criminal  
                 activity; or,

               iii)   Situations where recording would risk the safety of  
                 a confidential informant or undercover peace officer.

             e)   Operation of a body-worn camera shall begin with the  
               officer providing on camera notice to a person being  
               recorded that a body-worn camera is recording video, and  
               provide the person with the option to request that the  
               body-worn camera be turned off under the following  
               circumstances:

               i)      When the subject of the video is a victim of rape,  
                 incest, domestic violence, or other forms of domestic or  
                 sexual harm; or

               ii)    When an officer is at a private residence without a  
                 warrant and in a nonemergency situation;


             f)   Where a peace officer is involved in an incident  
               involving use of force or an incident resulting in injury  
               or death, a peace officer may only review his or her  
               body-worn camera video only after making his or her initial  
               statement and report in an administrative or criminal  
               inquiry or investigation; and 

             g)   Once a peace officer's initial report has been submitted  
               and approved and the officer has been interviewed by the  
               appropriate investigator, the investigator will show the  
               member the body-worn camera video. The peace officer will  
               be given the opportunity to provide additional information  
               to supplement his or her statement and may be asked  








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               additional questions by the investigators. If this results  
               in a modified report, both of the reports shall be provided  
               to all parties to a criminal or administrative  
               investigation.

          2)Provides that the following are guidelines that a law  
            enforcement agency shall consider when adopting their own  
            policies for a body-worn camera program:

             a)   A peace officer equipped with a body-worn camera shall  
               activate the camera when responding to calls for assistance  
               and when performing law enforcement activities in the field  
               including, but not limited to, traffic or pedestrian stops,  
               pursuits, arrests, searches, seizures, interrogations, and  
               any other investigative or enforcement encounters in the  
               field;

             b)   A peace officer shall ensure that a body-worn camera is  
               fully functional, including but not limited to, ensuring  
               that the camera can be turned on and off and record video  
               and audio, and that the camera is properly charged prior to  
               going into the field.  A peace officer shall not violate a  
               person's reasonable expectation of privacy when ensuring  
               that a body-worn camera is fully functional pursuant to  
               this paragraph; 

             c)   A peace officer wearing a body-worn camera shall  
               position the camera on his or her chest, head, shoulder,  
               collar or any area above mid-torso of his or her uniform to  
               facilitate optimum recording field of view;

             d)   Both video and audio recording functions of a body-worn  
               camera shall be activated when an officer is responding to  
               a call for service or at the initiation of any other law  
               enforcement or investigative encounter between a police  
               officer and a member of the public;  

             e)   During an encounter with a member of the public, the  
               officer shall notify the member of the public that the  
               body-worn camera is recording, and shall not deactivate the  
               body-worn camera until the conclusion of the encounter;









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             f)   An officer may stop recording when an arrestee is  
               secured inside of the department of police station, as  
               defined;

             g)   A peace officer shall record any interview of a suspect  
               or witness it entirety, unless an exception applies;

             h)   When recording interviews of a suspect of witness, a  
               peace officer shall, where applicable, inform the suspect  
               or witness of his or her rights under Miranda v. Arizona  
               (1996) 384 U.S. 436;

             i)   In the event of contradicting requests made by a  
               homeowner, occupant, or renter to stop recording, the  
               contradicting requests shall be recorded on video and the  
               peace officer shall continue to operate and record the  
               encounter;

             j)   A peace officer shall not remove, dismantle, or tamper  
               with any hardware or software components or parts of a  
               body-worn camera;

             aa)  A peace officer shall not use body-worn camera  
               functions, when there is no investigatory interaction with  
               a member of the public, to record any personal conversation  
               of or with another agency member or employee without the  
               permission of the recorded member or employee; 

             bb)  A peace officer shall not use a body-worn camera to  
               record non-work related activity or to record in places  
               where a reasonable expectation of privacy exists;

             cc)  A law enforcement agency or law enforcement officer  
               shall not allow a computerized facial recognition program  
               or application to be used with a body-worn camera or a  
               recording made by a body-worn camera unless the use has  
               been authorized by a warrant issued by a court; and

             dd)  When safe and practical, an on-scene supervisor may  
               retrieve a body-worn camera from an officer. The supervisor  
               shall be responsible for ensuring the camera data is  
               uploaded into the desired data processing and collection  








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               method.

          3)States that the provisions in this bill do not require a peace  
            officer, in a public venue to cease recording an event,  
            situation, or circumstance solely at the demand of a citizen.

          4)States that any request from within a law enforcement agency  
            for recordings from a body-worn camera from that agency shall  
            be completed by the system administrator with the approval of  
            the head of the agency.

          5)Provides that all other requests for recordings from a  
            body-worn camera shall be processed in accordance with the  
            California Public Records Act.

          6)States Legislative findings and declarations related to  
            body-worn cameras.

          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  








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            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, "Over the last  
            year, there have been over a dozen police shootings across the  
            nation of unarmed citizens, many involving minorities. These  








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            killings have shaken our communities and mobilized efforts to  
            prevent or mitigate these tragedies. One such creative effort  
            is the use of cameras attached to the clothing or uniform of  
            law enforcement personnel referred to as body-worn cameras  
            (BWC). Even before the devastating events surrounding the  
            shooting of 18-year old unarmed Michael Brown on August 9,  
            2014 in Ferguson, Missouri, law enforcement had implemented or  
            had plans to implement a body-worn camera program. 

            "In February of 2011, the City of Rialto began a study to  
            investigate the usefulness of body-worn cameras. Since then,  
            the city has seen a 60 percent reduction in officer use of  
            force incidents and 88 percent reduction in the number of  
            citizen complaints between the year prior to and following  
            camera deployment. Currently, in California, the regions of  
            Los Angeles, Oakland, San Diego, and San Leandro, among  
            others, have developed best practices for the local  
            utilization of peace officer body-worn cameras with more  
            cities rapidly following suit. However, there are no uniform  
            standardized practices and policies addressing the  
            implementation of these body-camera programs.

            "People travel frequently in California. For citizens who  
            travel from city to city, town to town and not have an idea of  
            what their basic rights are regarding officers equipped with  
            BWC's, puts them in an unnecessary vulnerable place. Of such,  
            we must be committed to standardizing some basic common core  
            BWC principles for Californians to know their rights when  
            crossing into different law enforcement department  
            jurisdictions."

          2)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  








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            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).)

          3)Proposed Amendments:  This bill is being considered by the  
            Committee as proposed to be amended.  The bill as it is  
            currently written provides that all of the provisions listed  
            in the new section are requirements that law enforcement must  
            comply with if the agency requires its officers to use a  
            body-worn camera.  The proposed amendments change many of  
            those provisions from requirements to guidelines that the  
            agencies must consider when adopting their own policies.  The  
            amendments provide policy recommendations that cover when to  
            turn the camera on and off, where the camera should be worn on  
            the body, how to ensure the camera if fully charged and  
            operating properly, who should upload data, and how to avoid  
            violating the privacy of the public as well as other officers.

          The provisions that have not been changed to policy  
            recommendations are requirements that a law enforcement agency  
            must comply with if the agency requires its officers to use  
            body-worn cameras.  These provisions require the officer to  
            provide notice to person who is being recorded, specifies that  
            in cases of use of force, an officer must write his or her  
            initial report based upon his or her memory prior to being  
            allowed to view the video.  There are also prohibitions on  
            recording in hospitals or other situations where information  
            must be kept confidential as well as prohibitions on using any  
            recording device not authorized by the agency.  As stated in  
            the author's statement, the intent of retaining these  
            provisions as requirements, rather than guidelines, is to  
            ensure some level of standardization of the policies that the  
            public may rely on when encountered with body-worn cameras in  
            their jurisdictions. 
          
          4)Argument in Support:  According to the American Civil  








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            Liberties of California, "Like most surveillance technologies,  
            depending on the method of use, BWCs [body-worn cameras]  
            implicate privacy interests, transparency in police  
            operations, and increased evidence documentation.  For  
            example, BWCs can record in residence and other places that  
            pose heightened privacy expectations, or capture footage of a  
            crime in a public setting. AB 66 strikes the appropriate  
            balance between those factors.

          . . . 

          "Under AB 66, the Penal Code would provide that '[p]eace  
            officers may only review their body worn camera video after  
            making their initial statement and report, an officer could  
            review BWC video and make an amendment to their statement or  
            report to account for facts not initially recalled.

          "Multiple law enforcement agencies have policies that align with  
            this rule.  The Oakland Police Department, for instance, has a  
            policy prohibiting officers from reviewing view prior to  
            making a statement in an investigation arising out of a Level  
            1 use of force (most serious, including shootings, equivalent  
            to LAPD's categorical use of force).  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 on incidents before viewing video . . .  

          "In Implementing Body-Worn Camera Program: Recommendations 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.' [Citation  
            omitted.]"

          5)Argument in Opposition:  According to the California State  
            Sheriffs' Association, "[W]e disagree with this bills approach  
            at handling public records act requests.  While there are  
            exceptions to the California Public Records Act (Gov. Code,   
            6250 et seq.) when it comes to records created by law  
            enforcement agencies, given the broad privacy concerns with  








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            body-worn cameras, we would urge an exemption to the Public  
            Records Act for all footage obtained by body worn cameras.   
            Any information that is subject to public concern could still  
            be obtained through criminal or civil discovery processes, or  
            may be released by an agency (such as is currently done with  
            mugshots).  We believe the privacy concerns of victims of  
            crime and the damage that can be done through the wide  
            dissemination of video through social media outweigh the  
            public's interest in being able to view all footage recorded  
            by law enforcement.  This measure would allow the broad  
            dissemination of camera footage of victims of crime and people  
            in crisis.

          "Finally, this measure would prohibit the viewing of body-camera  
            footage by an officer prior to making a report.  We believe  
            that in the vast majority of cases, it would be detrimental to  
            a law enforcement investigation to prohibit officers from  
            viewing video of questioning before writing a report; it would  
            be akin to prohibiting an officer from reviewing field notes  
            before writing a report.  This policy simply seeks to  
            undermine the credibility of an officer that cannot remember  
            an incident exactly as it unfolded."

          6)Related Legislation: 

             a)   AB 65 (Alejo), would redirect funds from the Driver  
               Training Penalty Assessment Fund and allocates that money  
               to the Board of State and Community Corrections to be used  
               to fund local law enforcement agencies to operate a body  
               worn camera program.  AB 65 is pending a hearing by the  
               Assembly Committee on Appropriations.


             b)   AB 69 (Rodriguez) requires law enforcement agencies to  
               follow specified best practices when establishing policies  
               and procedures for downloading and storing data from  
               body-worn cameras.  AB 69 is pending hearing by the  
               Assembly Committee on Privacy and Consumer Protection.

             c)   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  








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               policy relating to the use of body-worn cameras.  The bill  
               would require the policy to be developed in collaboration  
               with nonsupervisory officers and to include certain  
               provisions, including, among others, the duration, time,  
               and place when body-worn cameras shall be worn and  
               operational.  SB 175 is pending hearing by the Senate  
               Committee on Public Safety.

          REGISTERED SUPPORT / OPPOSITION:

          Support


          American Civil Liberties Union of California
          American Federation of State, County, and Municipal Employees  
          (AFSCME), AFL-CIO
          California Public Defenders Association
          PICO California


          Opposition


          Association for Los Angeles Deputy Sheriffs
          California Association of Highway Patrolmen 
          California Narcotic Officers' Association
          California Peace Officers' Association
          California State Sheriffs' Association
          Chief Probation Officers of California 
          Fraternal Order of Police, California State Lodge
          Long Beach Police Officers Association
          Los Angeles County Probation Officers Union
          Los Angeles County Professional Peace Officers Association
          Los Angeles Police Protective League
                                                                                     Peace Officers Research Association of California
          Riverside Sheriffs' Association
          Santa Ana Police Officer Association
          Sacramento County Deputy Sheriffs' Association



          Analysis Prepared  








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          by:              Stella Choe / PUB. S. / (916) 319-3744