BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                    AB 1940


                                                                    Page  1





          ASSEMBLY THIRD READING


          AB  
          1940 (Cooper)


          As Amended  May 31, 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 |                     |
          |                |     |HernŠndez, 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)Requires that the body-worn camera policy prohibit a peace  
            officer from making a video or audio recording in a health  
            care facility.


          6)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;










                                                                    AB 1940


                                                                    Page  4





             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; 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.


          7)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.










                                                                    AB 1940


                                                                    Page  5





          8)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. 
          9)Defines "peace officer" to mean any person designated as a  
            peace officer pursuant to existing law.


          10)Exempts a law enforcement agency that has developed a  
            body-worn camera policy pursuant to collective bargaining,  
            prior to January 1, 2017, from the body-worn camera policy  
            requirements.


          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. 








                                                                    AB 1940


                                                                    Page  6







          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.  


          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.










                                                                    AB 1940


                                                                    Page  7





          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 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:  
          0003306













                                                                    AB 1940


                                                                    Page  8