BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1940 Hearing Date: June 28, 2016
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|Author: |Cooper |
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|Version: |May 31, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Peace Officers: Body-Worn Cameras: Policies and
Procedures
HISTORY
Source: Peace Officers Research Association of California
Prior Legislation:AB 66 (Weber) - 2015, died Assembly
Appropriations
AB 69 (Rodriguez) - 2015, Chap. 461, Stats. of
2015
SB 175 (Huff) - 2015, died Assembly Floor
Support: California Association of Code Enforcement Officers;
California College and University Police Chiefs
Association; California Narcotic Officers
Association; Fraternal Order of Police; Association
for Los Angeles Deputy Sheriff; Los Angeles County
Professional Peace Officers Association; Los Angeles
Police Protective League; Los Angeles County Deputy
Probation Officers Union, AFSCME, Local 685; Riverside
Sheriffs Association
Opposition:American Civil Liberties Union of California;
California Police Chiefs Association; California
Public Defenders Association; California State
AB 1940 (Cooper ) PageB
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Sheriffs' Association; Electronic Frontier
Foundation; Legal Services for Prisoners with Children
Assembly Floor Vote: 71 - 7
PURPOSE
The purpose of this bill is to require law enforcement agencies
that employ peace officers to develop body-worn camera policies
and that these policies are subject to collective bargaining, as
specified.
Existing law defines "peace officer," as specified. (Penal Code
§ 830, et seq.)
Existing law makes it a crime for a person, intentionally and
without requisite consent, to eavesdrop on a confidential
communication by means of any electronic amplifying or recording
device. (Penal Code § 632.)
Existing law exempts a number of law enforcement agencies from
the prohibition in Penal Code section 632,<1> including the
Attorney General, any district attorney, or any assistant,
deputy, or investigator of the Attorney General or any district
attorney, any officer of the California Highway Patrol, any
chief of police, assistant chief of police, or police officer of
a city or city and county, any sheriff, undersheriff, or deputy
sheriff regularly employed and paid in that capacity by a
county, police officer of the County of Los Angeles, or any
person acting pursuant to the direction of one of these law
enforcement officers acting within the scope of his or her
authority. (Penal Code § 633.)
This bill requires a law enforcement agency, department, or
entity that employs peace officers uses body-worn cameras for
those officers, the agency, department, or entity to 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.
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<1> Penal Code section 633 also exempts listed law enforcement
from the prohibitions in sections 631, 632.5, 632.6, and 632.7.
AB 1940 (Cooper ) PageC
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This bill provides that in developing the policy, law
enforcement agencies, departments, or entities are required to
include the following:
A peace officer is allowed 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.
A peace 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
criminal or civil proceeding.
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 a 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 occur 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 their validity, an officer
may have a legal representative present during the review
of the recordings without the independently assigned
investigator or supervisor present, before the peace
officer makes a report, is ordered to give an internal
affairs statement, or before any criminal or civil
proceeding.
The policy shall be available to all peace officers in a
written form.
The policy shall be available to the public for viewing.
This bill provides that in developing the policy, law
enforcement agencies, departments, or entities are encouraged to
include the following:
The time, place, circumstances, and duration in which
the body-worn camera shall be operational.
Which peace officers shall wear the body-worn camera and
when they shall wear it.
AB 1940 (Cooper ) PageD
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Prohibitions against the use of body-worn camera
equipment and footage in specified circumstances, such as
when the peace officer is off-duty.
The type of training and length of training required for
body-worn camera usage.
Public notification of field use of body-worn cameras,
including the circumstances in which citizens are to be
notified that they are being recorded.
The manner in which to document a citizen's refusal from
being recorded under certain circumstances.
The use of body-worn camera video and audio recordings
in internal affairs cases.
The use of body-worn camera video and audio recordings
in criminal and civil case preparation and testimony.
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.
This bill defines "body-worn camera" as a device attached to the
uniform or body of a peace officer that records video, audio, or
both, in a digital or analog format.
This bill defines "peace officer" as any person designated as a
peace officer pursuant to this chapter.
This bill defines "serious use of force" means any of the
following:
Force resulting in death.
Force resulting in a loss of consciousness.
Force resulting in protracted loss, impairment, serious
disfigurement, or function of any body part or organ.
A weapon strike to the head.
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Intentional firearm discharge at a person, regardless of
injury.
This bill states that is does not apply to a law enforcement
agency, department, or entity that has developed a body-worn
camera policy, in accordance collective bargaining laws, before
January 1, 2017, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
AB 1940 (Cooper ) PageF
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v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for Legislation
According to the author:
AB 1940 will require law enforcement agencies that deploy
body worn cameras to develop, through the collective
bargaining process, policies and procedures on their use,
including the recommendation of best practices. AB 1940
will ensure accuracy by allowing peace officers to view the
footage for memory recall. The bill will also promote
transparency in the cases of serious bodily injury by
requiring the officer to view the footage after it has been
validated and in the presence of an independent
investigator. AB 1940 will require that all peace officers
AB 1940 (Cooper ) PageG
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and the public be provided with the body worn camera
policies specific to their jurisdiction. Finally, AB 1940
respects and protects existing collective bargained body
camera policies.
2. Effect of the Legislation
A number of law enforcement agencies are currently permitted to
utilize body-worn cameras. Existing law, however, does not
require these agencies to have a policy prior to utilizing them.
The need for such a policy was discussed in a recent study
released by the Department of Justice and PERF:
When implemented correctly, body-worn cameras can help
strengthen the policing profession. These cameras can
help promote agency accountability and transparency,
and they can be useful tools for increasing officer
professionalism, improving officer training,
preserving evidence, and documenting encounters with
the public. However, they also raise issues as a
practical matter and at the policy level, both of
which agencies must thoughtfully examine. Police
agencies must determine what adopting body-worn
cameras will mean in terms of police-community
relationships, privacy, trust and legitimacy, and
internal procedural justice for officers.
Police agencies should adopt an incremental approach
to implementing a body-worn camera program. This
means testing the camera in pilot programs and
engaging officers and the community during
implementation. It also means carefully crafting
body-worn camera policies that balance accountability,
transparency, and privacy rights, as well as
preserving the important relationships that exist
between officers and members of the community.
(Miller, Lindsay, Jessica Toliver, and Police Executive Research
Forum. 2014. Implementing a Body-Worn Camera Program:
Recommendations and Lessons Learned. Washington, DC: Office of
Community Oriented Policing Services, page 51; emphasis added.)
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The report recommends that each agency develop its own
comprehensive written policy to govern body-worn camera usage,
that includes the following:
Basic camera usage, including who will be assigned
to wear the cameras and where on the body the cameras
are authorized to be placed;
The designated staff member(s) responsible for
ensuring cameras are charged and in proper working
order, for reporting and documenting problems with
cameras, and for reissuing working cameras to avert
malfunction claims if critical footage is not
captured;
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;
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;
The method for documenting chain of custody;
The length of time recorded data will be retained
by the agency in various circumstances;
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;
Policies for releasing recorded data to the public,
including protocols regarding redactions and
responding to public disclosure requests; and
Policies requiring that any contracts with a
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 37.)
This bill seeks to implement some of these recommendations, by
requiring any agency that uses body-worn cameras to have a
policy that is collectively bargained and specified:
AB 1940 (Cooper ) PageI
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A peace officer is allowed 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.
A peace 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
criminal or civil proceeding.
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 a 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 occur 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 their validity, an officer
may have a legal representative present during the review
of the recordings without the independently assigned
investigator or supervisor present, before the peace
officer makes a report, is ordered to give an internal
affairs statement, or before any criminal or civil
proceeding.
The policy shall be available to all peace officers in a
written form.
The policy shall be available to the public for viewing.
This bill, additionally, encourages any agency that uses
body-worn cameras to include the following in the policy:
The time, place, circumstances, and duration in which
the body-worn camera shall be operational.
Which peace officers shall wear the body-worn camera and
when they shall wear it.
Prohibitions against the use of body-worn camera
equipment and footage in specified circumstances, such as
when the peace officer is off-duty.
The type of training and length of training required for
body-worn camera usage.
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 (Cooper ) PageJ
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The manner in which to document a citizen's refusal from
being recorded under certain circumstances.
The use of body-worn camera video and audio recordings
in internal affairs cases.
The use of body-worn camera video and audio recordings
in criminal and civil case preparation and testimony.
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.
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 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, or entity, if it employs peace officers
and uses body-worn cameras for those officers, to
develop a body-worn camera policy. The bill would
require the policy to allow a peace officer to review
his or her body-worn camera video and audio recordings
before making a report, giving an internal affairs
statement, or before any criminal or civil proceeding.
In addition, all changes and references to the
California Public Records Act have been amended out of
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the bill. Finally, AB 1940 has been amended to be
prospective only, protecting MOU's that have already
been negotiated prior to January 1, 2015.
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 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.
5. Argument in Opposition
According to the California Public Defenders Association:
This bill would exempt body-worn camera recordings
that depict the use of force resulting in serious
injury or death from public disclosure pursuant to the
act unless a judicial determination is made, after the
adjudication of any civil or criminal proceeding
related to the use of force incident, that the
interest in public disclosure outweighs the need to
protect the individual right to privacy.
Requiring local law enforcement agencies, as part of
their policy on body-worn cameras, to review the
recorded material prior to writing a report or in
other situations would have a tendency to allow law
enforcement officers to conform their reports or
testimony to what the recording may show. This could
stand in the way of determining the truth of what
actually took place. This would be analogous to
allowing, or even mandating, that a student taking a
test be allowed to read the answers that would be on
the test, before taking the test. While one might get
better test results, the grade on the test would not
be reflective of what the student actually knows.
Thus, in many respects, the requirement of testing
becomes a farce.
Further, by limiting access to these recordings, this
bill decreases transparency in the actions of law
AB 1940 (Cooper ) PageL
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enforcement officers and diminishes public access to
recordings of the actions of law enforcement officers.
In last year's session, numerous bills were advanced
for the purposes of requiring body-worn cameras by
officers in order to improve public safety and
confidence in local law enforcement agencies. As you
know, these bills were responses to the killings of
unarmed African-American males across the country. As
we saw in many of those cases, access to this
footage-whether taken by a body-camera or by a
bystander-is crucial for justice to be sought by the
victim or victim's family. Further, the public must be
able to hold police officers accountable for their
egregious actions, which will hopefully lead to
use-of-force police changes within the department.
This legislation-by allowing officers to review, and
therefore conform their reports to the footage; and
ultimately withhold the footage-is a step backward in
the fight for greater transparency and improved
community police relations.
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