BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 175 Hearing Date: April 14, 2015
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|Author: |Huff |
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|Version: |March 23, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Peace Officers: Body-Worn Cameras.
HISTORY
Source: Author
Prior Legislation:None known
Support: California Peace Officers Association; California
Police Chiefs Association; California Public Defenders
Association (support if amended)
Opposition:None known
PURPOSE
The purpose of this legislation is to require every law
enforcement department and agency that requires its peace
officers to wear body-cameras to develop a policy relating to
the use of those cameras, 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
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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 would require each department or agency that employs
peace officers and elects to require those officers to wear a
body-worn camera to develop a policy relating to the use of
those cameras. This policy must be developed in collaboration
with non-supervisory officers and include: (1) the duration,
time, and place that body-worn cameras must be worn and
operational; (2) the length of time video collected by officers
will be stored by the department or agency; and (3) the
procedures for, and limitations on, public access to recordings
taken by body-worn cameras.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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.
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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.
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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 February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 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).
While significant gains have been made in reducing the prison
population, the state now 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.
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COMMENTS
1.Need for This Bill
According to the author:
As pivotal events surrounding police use of force have
become the focus of important national debate, it is
necessary to explore law enforcement use of body worn
camera (BWC) technology as a statewide concern. SB
175 addresses the fact that BWC technology is
relatively new and some agencies have started using
BWC's without providing comprehensive policies for
their use.
BWC technology will only be as effective as its
policies and procedures are. Having talked with
members of numerous law enforcement agencies, a
one-size-fits-all approach is unacceptable. Many
agencies have already begun reaching out to community
leaders and other agencies to provide policy
recommendations regarding privacy rights, data storage
and accountability measures.
SB 175 demonstrates an even-handed approach to a
serious public safety issue. While it is clear that
law enforcement agencies welcome BWC technology for
the good of their departments and the public they
serve, it is obvious that subsequent policies will
eventually be developed on the natural. This
particular Senate bill is an essential forum from
which to demonstrate the Legislature's commitment to
keeping the discussion focused on the public safety
and privacy rights of all citizens, including our
peace officers who are tasked with enormous
responsibility to protect and to serve, while
preserving the public's trust.
According to the Police Executive Research Forum
(PERF) 2014, law enforcement agencies that require
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officers to use BWCs, report that the technology
definitely improves community relationships by
improving the performance of officers as well as the
conduct of the community members who are recorded. .
.
Procedural and constitutional privacy concerns must be
addressed by carefully crafting thorough departmental
policies with the implementation of body camera
technology. PERF Executive Director, Chuck Wexler
recommends in the 2014 project supported by the US
Department of Justice, "Implementing a Body-Worn
Camera Program, Recommendations and Lessons Learned,
"body-worn cameras can increase accountability, but
police agencies also must find a way to preserve the
informal and unique relationships between police
officers and community members."
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
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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.)
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
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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 legislation seeks to implement some of these
recommendations, by requiring any agency that utilizes body-worn
cameras to have a policy specifying:
The duration, time, and place that body-worn
cameras must be worn and operational;
The length of time video collected by officers
will be stored by the department or agency; and
The procedures for, and limitations on, public
access to recordings taken by body-worn cameras.
The legislation would also require that each officer who has to
wear a body-worn camera be provided with a copy of the policies.
This legislation, however, does not require an agency to have a
policy on (1) officer access to recordings taken by body-worn
cameras, or (2) training officers on the use of body-worn
cameras.
Officer Access to Recordings Taken by Body-worn Cameras
In addition to the recommendation in the report, a February 26,
2015 letter from the California State Sheriffs' Association
underscores the complex nature of officer access to body-worn
camera footage:
One particular issue that has seen wide discussion is
whether or not law enforcement officers should be
allowed to view footage from a body worn camera prior
to writing a report and whether such policies should
be subject to collective bargaining. In most cases,
it would be detrimental to a law enforcement
investigation to prohibit officers from viewing video
of questioning before writing a report; it would be
akin to prohibiting an officer from reviewing field
notes before writing a report. However, while law
enforcement officers should not be prohibited from
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viewing recorded video before making a report, we
would also be concerned about any policies that
mandate that management allow employees to watch
recorded video in every situation, including
situations in which an officer is subject to an
investigation involving employee or criminal
misconduct.
Members may wish to consider whether agencies should also be
required to develop a policy specifying the process for
accessing and reviewing recorded data, including the persons
authorized to access data and the circumstances in which
recorded data can be reviewed.
Training Officers on the use of Body-worn Cameras
The DOJ and the PERF report recommend that before agency
personnel are equipped with body-worn cameras, they receive
training on:
All practices and protocols covered by the
agency's body-worn camera policy (which should be
distributed to all personnel during training);
An overview of relevant state laws governing
consent, evidence, privacy, and public disclosure;
Procedures for operating the equipment safely
and effectively;
Scenario-based exercises that replicate
situations that officers might encounter in the
field;
Procedures for downloading and tagging recorded
data;
Procedures for accessing and reviewing recorded
data (only for personnel authorized to access the
data);
Procedures for preparing and presenting digital
evidence for court; and
Procedures for documenting and reporting any
malfunctioning device or supporting system;
(Implementing a Body-Worn Camera Program, Supra, at 47-48.)
Members may wish to consider whether agencies should be required
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to develop a policy specifying what training will be provided on
the use of body-worn cameras.
3. Argument in Support
According to the California Police Chiefs Association:
SB 175 would require every agency that employs peace
officers and that elects to requires those peace
officers to wear body-worn cameras to develop a policy
relating to the use of body-worn cameras. We concur
that agencies that elect to utilize body worn cameras
should have an includes and vetted policy in place
prior to the implementation of the agency's body worn
camera program.
SB 175 allows for local discretion in the creation of
agency policies. This approach allows each agency to
develop and implement the best policy for their
department and community.
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