BILL ANALYSIS Ó
AB 1940
Page 1
Date of Hearing: April 12, 2016
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1940 (Cooper) - As Amended 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
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agencies, departments, or entities are encouraged to include
the following in the policy:
a) The time, place, circumstances, and duration in which
the body-worn camera shall be operational.
b) Which peace officers shall wear the body-worn camera and
when they shall wear it.
c) Prohibitions against the use of body-worn camera
equipment and footage in specified circumstances, such as
when the peace officer is off-duty.
d) The type of training and length of training required
for body-worn camera usage.
e) Public notification of field use of body-worn cameras,
including the circumstances in which citizens are to be
notified that they are being recorded.
f) The manner in which to document a citizen's refusal
from being recorded under certain circumstances.
g) The use of body-worn camera video and audio recordings
in internal affairs cases.
h) The use of body-worn camera video and audio recordings
in criminal and civil case preparation and testimony.
i) 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.
j) The policy may be available to all peace officers in a
written form.
aa) 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
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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).)
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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
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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."
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
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:
a) Basic camera usage, including who will be assigned to
wear the cameras and where on the body the cameras are
authorized to be placed;
b) The designated staff member(s) responsible for ensuring
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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;
c) 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;
d) 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;
e) The method for documenting chain of custody;
f) The length of time recorded data will be retained by the
agency in various circumstances;
g) 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;
h) Policies for releasing recorded data to the public,
including protocols regarding redactions and responding to
public disclosure requests; and,
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i) 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.
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
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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, 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."
5)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
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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:
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'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
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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