BILL ANALYSIS                                                                                                                                                                                                    



          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  








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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. 

          ---------------------------

          <1> Penal Code section 633 also exempts listed law enforcement  
          from the prohibitions in sections 631, 632.5, 632.6, and 632.7.   








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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.










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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  









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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  









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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: 










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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.









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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  









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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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