BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1940


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          Date of Hearing:  April 19, 2016
          Chief Counsel:     Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                       1940 (Cooper) - As Amended  April 14, 2016




          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  
            agencies, departments, or entities are encouraged to include  








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            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  
            peace officer pursuant to existing law.








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          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).)


          3)Defines "confidential communication" to include any  








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            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  
            processes.  








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            "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  
               cameras are charged and in proper working order, for  








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               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,



             i)   Policies requiring that any contracts with a  








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               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  
            the report is accurate and complete.  The opponents believe  








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            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  
            Police Department, for instance, has a policy prohibiting  








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            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

          Opposition








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          American Civil Liberties Union
          California Public Defenders Association
          Legal Services for Prisoners with Children  
          
          Analysis Prepared  
          by:              Gregory Pagan / PUB. S. / (916) 319-3744