BILL ANALYSIS Ó
AB 66
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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