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.   


          ---------------------------
          <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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