BILL ANALYSIS Ó AB 1940 Page 1 ASSEMBLY THIRD READING AB 1940 (Cooper) As Amended May 3, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Public Safety |6-0 |Jones-Sawyer, | | | | |Melendez, Lackey, | | | | |Lopez, Low, Santiago | | | | | | | |----------------+-----+----------------------+--------------------| |Privacy |10-0 |Chau, Wilk, Calderon, | | | | |Chang, Cooper, | | | | |Dababneh, Gatto, | | | | |Gordon, Low, Olsen | | | | | | | |----------------+-----+----------------------+--------------------| |Appropriations |19-1 |Gonzalez, Bigelow, |Weber | | | |Bloom, Bonilla, | | | | |Bonta, Calderon, | | | | |Patterson, Daly, | | | | |Eggman, Gallagher, | | | | |Eduardo Garcia, Roger | | | | |Hernández, Holden, | | | | |Jones, Obernolte, | | | | |Quirk, Santiago, | | AB 1940 Page 2 | | |Wagner, Wood | | | | | | | | | | | | ------------------------------------------------------------------ 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 that use body-worn cameras to develop a policy related 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 a peace officer involved in an incident involving a serious use of force shall not review his or her body-worn camera recording until accompanied by an assigned independent investigator or supervisor. The separating and monitoring of the peace officer involved in a serious use of force shall be maintained during the review of the body-worn camera video and audio recordings and this review shall not jointly among involved employees. Once the recordings are approved as to the validity of the body-worn camera recordings and any other relevant recordings are also approved as to their validity, an officer may have a legal representative present during the review of the recording without the independently assigned investigator or supervisor present, before the peace officer makes a report, is ordered to give an AB 1940 Page 3 internal affairs statement, or before any criminal or civil proceeding. 4)The policy shall be available to all peace officers in a written form, and shall be available to the public for viewing. 5)Provides that in developing the policy, law enforcement 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 AB 1940 Page 4 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; and, j) A peace officer shall not use a personal device to make an unauthorized recording of the video or audio taken from a body-worn camera. 6)Defines "serious use of force" to mean any of the following: a) Force resulting in death; b) Force resulting in loss of consciousness; c) Force resulting in protracted loss, impairment, serious disfigurement, or function of any body part or organ; d) A weapon strike to the head; and, e) Intentional firearm discharge at a person, regardless of injury. 7)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. 8)Defines "peace officer" to mean any person designated as a peace officer pursuant to existing law. AB 1940 Page 5 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. 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 AB 1940 Page 6 jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. 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. 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. FISCAL EFFECT: According to the Assembly Appropriations Committee, no state cost. Significant nonreimbursable cost to local agencies that provide body-worn cameras to their peace officers. These requirements apply only if the agency uses body-worn cameras. COMMENTS: 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 Page 7 "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. "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." Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0003005