BILL ANALYSIS Ó AB 66 Page 1 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; AB 66 Page 2 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 AB 66 Page 3 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; AB 66 Page 4 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 AB 66 Page 5 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 AB 66 Page 6 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 AB 66 Page 7 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 AB 66 Page 8 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 AB 66 Page 9 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 AB 66 Page 10 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 AB 66 Page 11 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 AB 66 Page 12 by: Stella Choe / PUB. S. / (916) 319-3744