BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1940


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          Date of Hearing:   April 21, 2016


                ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION


                                   Ed Chau, Chair


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


          SUBJECT:  Peace officers: body-worn cameras: policies and  
          procedures


          SUMMARY:  Requires law enforcement agencies, departments or  
          entities to develop a policy for peace officer use of body-worn  
          cameras, makes that policy subject to collective bargaining, and  
          requires that the policy allow a peace officer to review camera  
          footage before making a report or statement.  Specifically, this  
          bill:  


          1)Requires a law enforcement agency, department, or entity that  
            provides body-worn cameras to its peace officers to develop a  
            policy relating to the use of those cameras.


          2)Requires the policy to allow, but not require, 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.


          3)Requires that the policy be developed in accordance with the  
            Meyers-Milias-Brown Act and the Ralph C. Dills Act, pertaining  








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            to the collective bargaining rights of peace officers.


          4)Encourages law enforcement agencies, departments, or entities  
            to address the following issues in developing 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)   Any 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; and,








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             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.


          5)Encourages law enforcement agencies, departments, or entities  
            to include the following provisions in developing the policy:


               a)     The policy may be available to all peace officers in  
                 a written form.


               b)     The policy may be available to the public for  
                 viewing.


          6)Defines the terms "body-worn camera" and "police officer."


          EXISTING LAW:  


          1)Generally requires, pursuant to the California Public Records  
            Act (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 (GC) Section 6250,  
            et seq.)


          2)Provides, pursuant to the Public Safety Officers Procedural  
            Bill of Rights Act, a variety of employment rights and  
            remedies for all public safety officers within California.   
            (GC 3300, et seq.)








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          3)Provides, pursuant to the Meyers-Milias-Brown Act, for the  
            organization of and collective bargaining by employees of  
            local governments.  (GC 3500, et seq.)  


          4)Provides, pursuant to the Ralph C. Dills Act, for the  
            organization of and collective bargaining by employees of  
            state governments.  (GC 3512, et seq.)  


          FISCAL EFFECT:  Unknown


          COMMENTS:  


           1)Purpose of this bill  .  This bill is intended to establish  
            certain rights for peace officers that use body-worn cameras  
            while on duty, including the right to review camera footage  
            before making a report and the right to have a formal policy  
            regarding body-worn camera use subject to collective  
            bargaining.  This bill is sponsored by the Peace Officers  
            Research Association of California (PORAC).


           2)Author's statement  .  According to the author, "AB 1940  
            requires law enforcement agencies to develop, through the  
            collective bargaining process, policies and procedures on the  
            use of body worn cameras (BWC).  Additionally, the bill  
            authorizes officer review of BWC footage and recommends best  
            practices for law enforcement to consider when establishing  
            policies."


           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  








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            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  
            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 found a  
            number of 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  








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            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)This bill in practice .  As noted above, this bill does three  
            things: requires the creation of a body-worn camera policy  
            (with some recommendations), requires that the policy be  
            subject to collective bargaining, and requires that officers  
            have the opportunity to review their own camera footage before  
            submitting a report or statement, or prior to a legal  
            proceeding.


           5)Collective bargaining and officer review of camera footage  .   
            Existing law permits state and local public safety employees  
            to organize and bargain collectively over matters such as  
            working conditions.   



          According to the author, "Many law enforcement agencies  
            deploying BWC's have already addressed the issue of officer  
            review through the collective bargaining process.  Some, such  
            as the California Highway Patrol, are currently in the  
            collective bargaining process on BWC policy.  In research,  
            most of these agreements on officer review have given the  
            officer full view of BWC data before the officer writes the  
            'initial' report, before court preparation/testimony, and in  
            internal affairs investigations.  Other agencies give  
            unspecified and specified latitude to management having final  
            say but maintain officer review.  Oakland Police Department  
            (OPD) is routinely cited for not giving officers initial  
            review.  However, OPD is currently under consent decree and is  
            bound by policies imposed upon it outside of the collective  
            bargaining process."  

          The author contends, "AB 1940 will ensure that law enforcement  
            management and labor work in concert to develop BWC policy so  
            the mission of the department is met as well as the working  








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            conditions of the employee."
           6)The debate over whether to permit officer review  .  According  
            to a 2014 PERF report entitled "Implementing a Body-Worn  
            Camera Program - Recommendations and Lessons Learned," there  
            are differing views as to whether officers should be allowed  
            to review camera footage prior to making a statement about an  
            incident in which they were involved. 



          "According to many police executives, the primary benefit to  
            officer review is that it allows officers to recall events  
            more clearly, which helps get to the truth of what really  
            happened. Some police executives, on the other hand, said that  
            it is better for an officer's statement to reflect what he or  
            she perceived during the event, rather than what the camera  
            footage revealed.  The majority of police executives consulted  
            by PERF are in favor of allowing officers to review body-worn  
            camera footage prior to making a statement about an incident  
            in which they were involved.  They believe that this approach  
            provides the best evidence of what actually took place."

          "Police executives who favor review said that officers will be  
            held accountable for their actions regardless of whether they  
            are allowed to watch the video recordings prior to making a  
            statement.  'Officers are going to have to explain their  
            actions, no matter what the video shows,' said Chief Burbank  
            of Salt Lake City. Chief Frazier of Surprise, Arizona, said,  
            'If an officer has acted inappropriately, and those actions  
            were recorded, the officer cannot change the record and will  
            have to answer for his or her actions.  What will be gained by  
            a review of the video is a more accurate accounting of the  
            incident.'

          "Other police executives, however, said that the truth-and the  
            officer's credibility-are better served if an officer is not  
            permitted to review footage of an incident prior to making a  
            statement.  'In terms of the officer's statement, what matters  
            is the officer's perspective at the time of the event, not  








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            what is in the video,' said Major Mark Person of the Prince  
            George's County (Maryland) Police Department.  'That  
            perspective is what they are going to have to testify to.  If  
            officers watch the video before making a statement, they might  
            tailor the statement to what they see.  It can cause them to  
            second-guess themselves, which makes them seem less  
            credible.'"

          The author's office points out that it is an established  
            precedent in California that officers can review video footage  
            from dashboard cameras mounted in police cars prior to  
            drafting a report or statement, and that this bill would be an  
            extension of that precedent.  



           7)Recent amendments  .  According to the author's office, an  
            agreement in concept has been reached with the Assembly Public  
            Safety Committee to narrow the officer review provision  
            slightly by requiring the review of an unvalidated recording  
            to be supervised by an independent investigator or supervisor  
            for incidents involving a serious use of force, as defined.   
            Because of the approaching policy committee deadline, the  
            author's office has committed to making those amendments in  
            the Assembly Appropriations Committee, should the bill be  
            passed by this Committee.     


           8)Arguments in support  .  According to the sponsor, "PORAC  
            supports the use of body worn camera when they are implemented  
            and used responsibly.  With the addition of a body worn camera  
            policy that would require an officer to view the 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." 










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           9)Arguments in opposition  .  According to the American Civil  
            Liberties Union of California, "[t]his bill would potentially  
            hide critical evidence of wrongdoing by police officers for  
            years after an incident by creation an unprecedented  
            prohibition against disclosure of public records taken by  
            body-worn cameras (BWCs) when those recordings depict the use  
            of force resulting in serious injury or death.  This bill  
            would further require that every police department allow a  
            peace officer to review BWC recordings before he or she makes  
            a report, gives an internal affairs statement, or testifies in  
            any criminal or civil proceeding.  Creating such a right would  
            seriously undermine effective investigation and fair  
            determination of alleged misconduct."


           10)Related legislation  .  AB 2533 (Santiago) would require that a  
            public safety officer be given a minimum of three business  
            days' notice before any audio or video data of the officer  
            that was recorded by the officer may be publicly released by  
            the department or other public agency on the Internet.  AB  
            2533 is currently pending in the Assembly Appropriations  
            Committee.      


            AB 1957 (Quirk) would require a law enforcement agency to  
            confidentially review body worn camera from serious use of  
            force incidents and require a judicial determination to set  
            the terms of any public release of such footage, while  
            generally requiring the disclosure of footage 60 days after  
            the commencement of a misconduct investigation and restricting  
            the public disclosure of footage depicting domestic violence  
            victims, minors, or witness statements.  AB 1957 is currently  
            pending in the Assembly Appropriations Committee.  


            AB 2611 (Low) would exempt from disclosure under the CPRA  
            records of complaints to, or investigations conducted by, or  
            records of intelligence information or security procedures of,  
            the office of the Attorney General and the Department of  








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            Justice, the Office of Emergency Services and any state or  
            local police agency, or any investigatory or security files,  
            including audio or video recordings, compiled by any other  
            state or local police agency, or any investigatory or security  
            files compiled by any other state or local agency for  
            correctional, law enforcement, or licensing purposes.  AB 2611  
            is currently pending in the Assembly Appropriations Committee.  
                 


           11)Previous legislation  .  AB 66 (Weber) would have imposed  
            specified requirements on a law enforcement agency that  
            requires its officers to use body worn cameras, including a  
            requirement that the policies and procedures being posted  
            online, that peace officers be banned from making personal  
            copies of video footage, that officers be allowed to review  
            their own footage before making an initial statement and  
            report, and exempt footage depicting sexual or domestic  
            violence victims from public disclosure.  This bill was held  
            in the Assembly Appropriations Committee. 


            AB 69 (Rodriguez), Chapter 461, Statutes of 2015, requires law  
            enforcement agencies to consider specified best practices when  
            establishing policies and procedures for downloading and  
            storing data from body-worn cameras.


            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 died in Assembly  
            Public Safety Committee. 





            SB 175 (Huff) would require each department or agency that  
            employs peace officers and that elects to require those peace  








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            officers to wear body-worn cameras to develop a policy  
            relating to the use of body-worn cameras.  SB 175 is currently  
            on the inactive file on the Assembly 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 died in the Senate Rules Committee.  



          12)Double-referral  .  This bill was double-referred to the  
            Assembly Public Safety Committee, where it was heard on April  
            20, 2016. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Peace Officers Research Association of California (PORAC)  
          (sponsor)


          Association for Los Angeles Deputy Sheriffs


          Los Angeles Police Protective League


          Los Angeles County Deputy Probation Officers Union, AFSCME,  
          Local 685








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          Riverside Sheriffs Association




          Opposition


          American Civil Liberties Union of California 




          Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200