BILL ANALYSIS Ó
AB 66
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Date of Hearing: April 30, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
AB 66
(Weber) - As Amended April 27, 2015
SUBJECT: Peace officers: body-worn cameras
SUMMARY: Establishes mandatory requirements and recommended
guidelines for the use of body-worn cameras by peace officers
and the handling of the resulting video and audio data.
Specifically, this bill:
1)Requires a law enforcement agency that requires body-worn
cameras to be used by peace officers to comply with the
requirements and prohibitions of this bill.
2)Requires a law enforcement agency to conspicuously post its
policies and procedures regarding body-worn cameras on its
website.
3)Requires a peace officer to only use the body-worn camera
systems issued and approved by the law enforcement agency that
employs him or her.
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4)Prohibits a peace officer from making copies of any body-worn
camera file 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.
5)Prohibits a peace officer from operating a body-worn camera
under the following circumstances:
a) 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;
b) During an ambulance response to an accident or
illness where the victim is not involved in any criminal
activity; or,
c) Situations where recording would risk the safety of
a confidential informant or undercover peace officer.
6)Requires that a peace officer begin the operation of a
body-worn camera 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 either
of the following circumstances:
a) When the subject of the recording is a victim of
rape, incest, domestic violence, and other forms of
domestic or sexual harm; or,
b) When an officer is at a private residence without a
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warrant and in a nonemergency situation.
7)Clarifies that the provisions of this bill shall not be
construed to require a peace officer in a public venue to
cease recording an event, situation, or circumstance solely at
the demand of a citizen.
8)Provides that, where a peace officer is involved in an
incident involving a serious use of force, the peace officer
may review his or her body-worn camera video only after making
his or her initial statement. Once the initial report is
submitted and approved, a supervisor may show the video to the
peace officer, as specified.
9)Provides that the preparation or modification of secondary
report shall not be the sole basis for placing a peace officer
on a Brady List.
10)Defines the term "Brady List" to mean any system, index,
list, or other record containing the names of peace officers
whose personnel files are likely to contain evidence of
dishonesty or bias, which is maintained by a prosecutorial
agency or office in accordance with the holding in Brady v.
Maryland (1963) 373 U.S. 83.
11)Defines the term "serious use of force" to mean 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; weapon strike to the head; intentional firearm
discharge at a person, regardless of injury; or, unintentional
firearm discharge if a person is injured as a result of the
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discharge.
12)Requires a law enforcement agency to consider the following
guidelines when adopting a body-worn camera policy:
a) A peace officer shall activate a body-worn camera
when responding to calls for assistance and when
performing law enforcement activities in the field, as
specified.
b) A peace officer shall ensure that a body-worn camera
is fully functional and properly charged prior to going
into the field, and shall not violate a person's
reasonable expectation of privacy when ensuring that a
body-worn camera is fully functional.
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 the mid-torso of his or her
uniform.
d) A peace officer shall activate both video and audio
recording functions of a body-worn camera when 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) A peace officer may stop recording when an arrestee
is secured inside a fixed place of detention.
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f) A peace officer must record any interview of a
suspect or witness in its entirety, unless a specified
exemption applies.
g) A peace officer, when recording interviews of a
suspect, must inform the suspect of his or her legal
rights, as specified.
h) A peace officer shall, in the event of contradicting
requests made by a homeowner, occupant, or renter to stop
recording the encounter, record the contradicting
requests on video and shall continue to operate and
record the encounter.
i) A peace officer shall not remove, dismantle, or
tamper with any hardware or software components or parts
of a body-worn camera.
j) 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.
aa) 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.
bb) A peace officer shall not allow a computerized
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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.
cc) An on-scene supervisor may, when safe and practical,
retrieve a body-worn camera from an officer, who shall
then be responsible for ensuring that the camera data is
uploaded.
13)Requires 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.
14)Requires that all other requests for recordings from a
body-worn camera, other than those explicitly provided for
herein, shall be processed in accordance with the California
Public Records Act (CPRA).
15)Provides that any use of body-worn cameras by a peace officer
not otherwise prescribed by law is subject to bargaining
pursuant to the M e yers-Milias-Brown Act, as specified.
16)Makes findings and declarations relative to the importance of
utilizing best practices in the deployment and use of body
cameras by law enforcement.
EXISTING LAW:
1)Makes it a crime to intentionally record a confidential
communication without the consent of all parties to the
communication. (Penal Code (PC) Section 632, subd. (a))
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2)Exempts specified peace officers from that provision if they
are acting within the scope of their authority. (PC 633)
3)Generally requires, pursuant to the 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 Section 6250, et seq.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to provide a
variety of mandatory requirements and recommended guidelines
for law enforcement agencies that require body-worn cameras to
be used by their peace officers. AB 66 is author-sponsored.
2)Author's statement . According to the author, "Uniformity
among the departments throughout the state for policies and
procedures as it relates to the body-worn camera technology is
not existent. To ensure that California's unwavering
commitment to fairness, civil rights, community policing,
transparency, and justice is further realized, this bill seeks
to adopt and standardize the best practices for use of police
body-worn cameras in this state."
"A report by the U.S. Department of Justice [?] found that
roughly one-third of police departments nationwide that use
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body-worn cameras operate without any standard procedure or
practice when operating their cameras. 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 [body-worn cameras], puts them in an unnecessary
vulnerable place. As 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."
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
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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 has
many 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)The California Public Records Act . As noted above, the video
and audio data produced by peace officers with body-worn
cameras is considered a public record under the CPRA, and is
therefore subject to disclosure to the public unless otherwise
exempt.
The CPRA requires public agencies to generally respond to a
records request within 10 days, and make eligible public
records promptly available to a requester who pays the direct
costs of duplication. In order to withhold a record, a public
agency must demonstrate that a record is exempt under express
provisions of the CPRA, or else must show that "on the facts
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of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest
served by disclosure of the record." Whenever a state or
local agency discloses a public record that would otherwise be
exempt, that disclosure constitutes a waiver of the exemption.
The CPRA provides a detailed list of information and documents
that are exempt from disclosure, including: personnel files
and records of complaints or investigatory or security files
complied by state or local law enforcement agencies, although
specified written information must be provided regarding the
individuals involved in those incidents or investigations.
5)Arguments in support. A coalition of supporters writes, "[i]n
California, the cities of Los Angeles, Oakland, and San Diego,
among others, have developed best practices for the local
utilization of police body-worn cameras [BWCs] with more
cities rapidly following suit. However, there are no uniform
standardized practices and policies addressing the
implementation of these body-camera programs across the
state.?By providing uniform guidelines, AB 66 will make
members of the public and peace officers aware of their rights
and expectations across the state in regards to peace
officers' use of BWC."
The American Civil Liberties Union states, "Like most
surveillance technologies, depending on the method of use,
BWCs implicate privacy interests, transparency in police
operations, and increased evidence documentation. For
example, BWCs can record in residences and other places that
pose heightened privacy expectations, or capture footage of a
crime in a public setting. AB 66 strikes an appropriate
balance between these factors."
"Specifically, AB 66?.addresses privacy in sensitive social
situations by prohibiting recording in a health facility, and
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during an ambulance response to an accident entailing no
criminal activity. In addition, when at a private residence,
or in the presence of a victim of rape, incest, domestic
violence or sexual harm, AB 66 would require that peace
officers provide the subject of a recording with on-camera
notice of the BWC and an opportunity to request that the BWC
be turned-off. " [citations omitted]
6)Arguments in opposition . According to a coalition of law
enforcement agencies, "AB 66 establishes requirements which
are unfair to officers, abrogate [local government labor
relations law], and are vague, ambiguous, unworkable, and
demonstrate a clear lack of knowledge and understanding of day
to day law enforcement activity?. AB 66 creates the
unfortunate scenario wherein rank and file officers will
strongly resist the implementation of the use of body-worn
cameras. If the policy goal is to increase and enhance the
use of officer-worn body cameras, then AB 66 would be a major
set-back, because it creates unnecessary risks and substantial
liabilities both the officer and his or her employing
Department."
The California State Sheriffs' Association writes, "In addition,
we disagree with this bill's approach at handling public
record act requests. While there are exceptions to the [CPRA]
when it comes to records created by law enforcement agencies,
given the broad privacy concerns with body-worn cameras, we
would urge an exemption to the [CPRA] 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 (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."
7)Privacy considerations related to this bill . The PERF report
notes that "[b]ody-worn cameras raise many privacy issues,"
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and this bill includes a number of provisions that directly
affect individual privacy: restrictions on the handling of the
camera itself and the data produced, prohibitions on the
filming of certain highly vulnerable places and people, and
guidelines recommending a ban on the use of facial recognition
software without a warrant and the use of body-worn cameras
for non-investigatory interactions with the public.
However, the bill makes clear that, beyond the few
restrictions imposed by this bill, all other requests for
recordings from a body-worn camera will be processed in
accordance with the CPRA. As noted above, the CPRA provides
an exemption for the investigatory files held by law
enforcement, but it does not similarly protect
non-investigatory records. To the extent that this bill
merely recommends, but does not require, peace officers to
avoid recording non-investigatory interactions with the
public, the footage of such encounters may become public
records subject to disclosure.
8)Author's amendments. The author has requested the following
technical amendments to the bill:
The first amendment would revise the recommended best practice
pertaining to peace officer review of video to require that a
supervisor show a peace officer the video once an initial
report has been submitted and approved, and that the officer
must be given an opportunity to provide additional information
to supplement his or her statement. The current language of
the bill was mistakenly drafted to be permissive.
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On page 3, line 38 and 39, strike and replace "may" with
"shall"
The second amendment would shift the provisions requiring that
the use of body-worn cameras be subject to collective
bargaining pursuant to the Meyers-Milias-Brown Act from a
requirement to a recommended best practice.
On page 6, cut lines 18-22, and add them to Section 2 at
page 4, line 24, as (a)(7); strike and replace "Myers" with
"Meyers"
9)Related Legislation. AB 69 (Rodriguez) specifies a set of
best practices that a law enforcement agency, department or
entity establishing policies and procedures for the
implementation and operation of a body-worn camera system must
consider. AB 69 is currently pending in the Assembly Privacy
and Consumer Protection Committee.
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 currently pending on the Suspense File in
the Assembly Appropriations Committee.
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 is currently
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pending in the 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
pending in on the Senate 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 is currently pending in the Senate Rules
Committee.
10)Double-referral . This bill was double-referred to the
Assembly Public Safety Committee, where it was heard on April
14, 2015, and passed out on a 5-1 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
A New PATH (Parents for Addiction Treatment and Healing)
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American Civil Liberties Union (ACLU) (4/20/15 version)
American Federation of State, County and Municipal Employees
(AFSCME) (4/9/15 version)
Employee Rights Center
FACTS Education Fund & Fair Chance Project
San Diego Organizing Project
Urban League of San Diego County (4/20/15 version)
Opposition
AFSCME, Local 685(4/9/15 version)
Association for Los Angeles Deputy Sheriffs (4/9/15 version)
California Association of Highway Patrolmen
California State Lodge, Fraternal Order of Police
California State Sheriffs' Association (4/20/15 version)
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Chief Probation Officers of California (4/20/15 version)
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League (4/9/15 version)
Los Angeles Probation Officers Union (4/9/15 version)
Peace Officers Research Association of California (PORAC)
(4/20/15 version)
Riverside Sheriffs' Association (4/9/15 version)
Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200
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