BILL ANALYSIS Ó
AB 1940
Page 1
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
AB 1940
Page 2
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,
AB 1940
Page 3
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.)
AB 1940
Page 4
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
AB 1940
Page 5
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
AB 1940
Page 6
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
AB 1940
Page 7
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
AB 1940
Page 8
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."
AB 1940
Page 9
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
AB 1940
Page 10
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
AB 1940
Page 11
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
AB 1940
Page 12
Riverside Sheriffs Association
Opposition
American Civil Liberties Union of California
Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200