BILL ANALYSIS Ó AB 66 Page 1 Date of Hearing: April 30, 2015 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Mike Gatto, Chair AB 66 (Weber) - As Amended April 27, 2015 SUBJECT: Peace officers: body-worn cameras SUMMARY: Establishes mandatory requirements and recommended guidelines for the use of body-worn cameras by peace officers and the handling of the resulting video and audio data. Specifically, this bill: 1)Requires a law enforcement agency that requires body-worn cameras to be used by peace officers to comply with the requirements and prohibitions of this bill. 2)Requires a law enforcement agency to conspicuously post its policies and procedures regarding body-worn cameras on its website. 3)Requires a peace officer to only use the body-worn camera systems issued and approved by the law enforcement agency that employs him or her. AB 66 Page 2 4)Prohibits a peace officer from making copies of any body-worn camera file for his or her personal use or use a recording device such as a phone camera or secondary video camera to record a body-worn camera file. 5)Prohibits a peace officer from operating a body-worn camera under the following circumstances: a) In a health facility or medical office when patients may be in view of the body-worn camera or when a health care practitioner is providing care to an individual; b) During an ambulance response to an accident or illness where the victim is not involved in any criminal activity; or, c) Situations where recording would risk the safety of a confidential informant or undercover peace officer. 6)Requires that a peace officer begin the operation of a body-worn camera with the officer providing on camera notice to a person being recorded that a body-worn camera is recording video, and provide the person with the option to request that the body-worn camera be turned off under either of the following circumstances: a) When the subject of the recording is a victim of rape, incest, domestic violence, and other forms of domestic or sexual harm; or, b) When an officer is at a private residence without a AB 66 Page 3 warrant and in a nonemergency situation. 7)Clarifies that the provisions of this bill shall not be construed to require a peace officer in a public venue to cease recording an event, situation, or circumstance solely at the demand of a citizen. 8)Provides that, where a peace officer is involved in an incident involving a serious use of force, the peace officer may review his or her body-worn camera video only after making his or her initial statement. Once the initial report is submitted and approved, a supervisor may show the video to the peace officer, as specified. 9)Provides that the preparation or modification of secondary report shall not be the sole basis for placing a peace officer on a Brady List. 10)Defines the term "Brady List" to mean any system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, which is maintained by a prosecutorial agency or office in accordance with the holding in Brady v. Maryland (1963) 373 U.S. 83. 11)Defines the term "serious use of force" to mean 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; weapon strike to the head; intentional firearm discharge at a person, regardless of injury; or, unintentional firearm discharge if a person is injured as a result of the AB 66 Page 4 discharge. 12)Requires a law enforcement agency to consider the following guidelines when adopting a body-worn camera policy: a) A peace officer shall activate a body-worn camera when responding to calls for assistance and when performing law enforcement activities in the field, as specified. b) A peace officer shall ensure that a body-worn camera is fully functional and properly charged prior to going into the field, and shall not violate a person's reasonable expectation of privacy when ensuring that a body-worn camera is fully functional. c) A peace officer wearing a body-worn camera shall position the camera on his or her chest, head, shoulder, collar, or any area above the mid-torso of his or her uniform. d) A peace officer shall activate both video and audio recording functions of a body-worn camera when responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a police officer and a member of the public. e) A peace officer may stop recording when an arrestee is secured inside a fixed place of detention. AB 66 Page 5 f) A peace officer must record any interview of a suspect or witness in its entirety, unless a specified exemption applies. g) A peace officer, when recording interviews of a suspect, must inform the suspect of his or her legal rights, as specified. h) A peace officer shall, in the event of contradicting requests made by a homeowner, occupant, or renter to stop recording the encounter, record the contradicting requests on video and shall continue to operate and record the encounter. i) A peace officer shall not remove, dismantle, or tamper with any hardware or software components or parts of a body-worn camera. j) A peace officer shall not use body-worn camera functions when there is no investigatory interaction with a member of the public, to record any personal conversation of or with another agency member or employee without the permission of the recorded member or employee. aa) A peace officer shall not use a body-worn camera to record non-work-related activity or to record in places where a reasonable expectation of privacy exists. bb) A peace officer shall not allow a computerized AB 66 Page 6 facial recognition program or application to be used with a body-worn camera or a recording made by a body-worn camera unless the use has been authorized by a warrant issued by a court. cc) An on-scene supervisor may, when safe and practical, retrieve a body-worn camera from an officer, who shall then be responsible for ensuring that the camera data is uploaded. 13)Requires that any request from within a law enforcement agency for recordings from a body-worn camera from that agency shall be completed by the system administrator with the approval of the head of the agency. 14)Requires that all other requests for recordings from a body-worn camera, other than those explicitly provided for herein, shall be processed in accordance with the California Public Records Act (CPRA). 15)Provides that any use of body-worn cameras by a peace officer not otherwise prescribed by law is subject to bargaining pursuant to the M e yers-Milias-Brown Act, as specified. 16)Makes findings and declarations relative to the importance of utilizing best practices in the deployment and use of body cameras by law enforcement. EXISTING LAW: 1)Makes it a crime to intentionally record a confidential communication without the consent of all parties to the communication. (Penal Code (PC) Section 632, subd. (a)) AB 66 Page 7 2)Exempts specified peace officers from that provision if they are acting within the scope of their authority. (PC 633) 3)Generally requires, pursuant to the CPRA, that public agencies disclose a government record to the public upon request, unless there is a specific reason to withhold it or if a public agency can establish that the public interest in nondisclosure clearly outweighs the public interest in disclosure. (Government Code Section 6250, et seq.) FISCAL EFFECT: Unknown COMMENTS: 1)Purpose of this bill . This bill is intended to provide a variety of mandatory requirements and recommended guidelines for law enforcement agencies that require body-worn cameras to be used by their peace officers. AB 66 is author-sponsored. 2)Author's statement . According to the author, "Uniformity among the departments throughout the state for policies and procedures as it relates to the body-worn camera technology is not existent. To ensure that California's unwavering commitment to fairness, civil rights, community policing, transparency, and justice is further realized, this bill seeks to adopt and standardize the best practices for use of police body-worn cameras in this state." "A report by the U.S. Department of Justice [?] found that roughly one-third of police departments nationwide that use AB 66 Page 8 body-worn cameras operate without any standard procedure or practice when operating their cameras. Currently, in California, the regions of Los Angeles, Oakland, San Diego, and San Leandro, among others, have developed best practices for the local utilization of peace officer body-worn cameras with more cities rapidly following suit. However, there are no uniform standardized practices and policies addressing the implementation of these body-camera programs." "People travel frequently in California. For citizens who travel from city to city, town to town and not have an idea of what their basic rights are regarding officers equipped with BWC's [body-worn cameras], puts them in an unnecessary vulnerable place. As such, we must be committed to standardizing some basic common core BWC principles for Californians to know their rights when crossing into different law enforcement department jurisdictions." 3)The use of body-worn cameras in law enforcement . As a result of a string of well-publicized incidents involving the use of force by law enforcement officers against African-American men, beginning with the shooting of Michael Brown in Ferguson, Missouri on August 9, 2014, a public debate has emerged over the use of body-worn cameras by peace officers. According to the National Conference of State Legislatures, there are no fewer than 30 states currently considering some form of legislation on the topic. A body-worn camera is a small video camera - typically attached to an officer's clothing, helmet or sunglasses - that can capture, from an officer's point of view, video and audio recordings of activities, including traffic stops, arrests, searches, interrogations, and critical incidents such as officer-involved shootings. There is substantial evidence to suggest that body-worn cameras can have positive effects on policing. A 2012 study of the AB 66 Page 9 Rialto, CA police department's use of body-worn cameras found that the devices were correlated with a 60% reduction in officer use of force incidents following camera deployment, with twice the number of use of force incidents reported among the group of officers without cameras. The report also found an 88% reduction in the number of citizens' complaints in the year after cameras were introduced. To explain the effect of body-worn cameras, the Rialto Chief of Police was quoted as saying, "Whether the reduced number of complaints was because of the officers behaving better or the citizens behaving better - well, it was probably a little bit of both." According to a November 2014, report by the U.S. Department of Justice's Office of Community Oriented Policing Services and the Police Executive Research Forum (PERF), a broad survey of police departments that had deployed body-worn cameras has many benefits: "body-worn cameras are useful for documenting evidence; officer training; preventing and resolving complaints brought by members of the public; and strengthening police transparency, performance and accountability...body-worn cameras [also] help police departments ensure events are also captured from an officer's perspective." However, the report also notes that "[t]he use of body-worn cameras also raises important questions about privacy and trust." 4)The California Public Records Act . As noted above, the video and audio data produced by peace officers with body-worn cameras is considered a public record under the CPRA, and is therefore subject to disclosure to the public unless otherwise exempt. The CPRA requires public agencies to generally respond to a records request within 10 days, and make eligible public records promptly available to a requester who pays the direct costs of duplication. In order to withhold a record, a public agency must demonstrate that a record is exempt under express provisions of the CPRA, or else must show that "on the facts AB 66 Page 10 of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." Whenever a state or local agency discloses a public record that would otherwise be exempt, that disclosure constitutes a waiver of the exemption. The CPRA provides a detailed list of information and documents that are exempt from disclosure, including: personnel files and records of complaints or investigatory or security files complied by state or local law enforcement agencies, although specified written information must be provided regarding the individuals involved in those incidents or investigations. 5)Arguments in support. A coalition of supporters writes, "[i]n California, the cities of Los Angeles, Oakland, and San Diego, among others, have developed best practices for the local utilization of police body-worn cameras [BWCs] with more cities rapidly following suit. However, there are no uniform standardized practices and policies addressing the implementation of these body-camera programs across the state.?By providing uniform guidelines, AB 66 will make members of the public and peace officers aware of their rights and expectations across the state in regards to peace officers' use of BWC." The American Civil Liberties Union states, "Like most surveillance technologies, depending on the method of use, BWCs implicate privacy interests, transparency in police operations, and increased evidence documentation. For example, BWCs can record in residences and other places that pose heightened privacy expectations, or capture footage of a crime in a public setting. AB 66 strikes an appropriate balance between these factors." "Specifically, AB 66?.addresses privacy in sensitive social situations by prohibiting recording in a health facility, and AB 66 Page 11 during an ambulance response to an accident entailing no criminal activity. In addition, when at a private residence, or in the presence of a victim of rape, incest, domestic violence or sexual harm, AB 66 would require that peace officers provide the subject of a recording with on-camera notice of the BWC and an opportunity to request that the BWC be turned-off. " [citations omitted] 6)Arguments in opposition . According to a coalition of law enforcement agencies, "AB 66 establishes requirements which are unfair to officers, abrogate [local government labor relations law], and are vague, ambiguous, unworkable, and demonstrate a clear lack of knowledge and understanding of day to day law enforcement activity?. AB 66 creates the unfortunate scenario wherein rank and file officers will strongly resist the implementation of the use of body-worn cameras. If the policy goal is to increase and enhance the use of officer-worn body cameras, then AB 66 would be a major set-back, because it creates unnecessary risks and substantial liabilities both the officer and his or her employing Department." The California State Sheriffs' Association writes, "In addition, we disagree with this bill's approach at handling public record act requests. While there are exceptions to the [CPRA] when it comes to records created by law enforcement agencies, given the broad privacy concerns with body-worn cameras, we would urge an exemption to the [CPRA] for all footage obtained by body-worn cameras. Any information that is subject to public concern could still be obtained through criminal or civil discovery processes or may be released by an agency (as is currently done with mugshots). We believe the privacy concerns of victims of crime and the damage that can be done through the wide dissemination of video through social media outweigh the public's interest in being able to view all footage recorded by law enforcement." 7)Privacy considerations related to this bill . The PERF report notes that "[b]ody-worn cameras raise many privacy issues," AB 66 Page 12 and this bill includes a number of provisions that directly affect individual privacy: restrictions on the handling of the camera itself and the data produced, prohibitions on the filming of certain highly vulnerable places and people, and guidelines recommending a ban on the use of facial recognition software without a warrant and the use of body-worn cameras for non-investigatory interactions with the public. However, the bill makes clear that, beyond the few restrictions imposed by this bill, all other requests for recordings from a body-worn camera will be processed in accordance with the CPRA. As noted above, the CPRA provides an exemption for the investigatory files held by law enforcement, but it does not similarly protect non-investigatory records. To the extent that this bill merely recommends, but does not require, peace officers to avoid recording non-investigatory interactions with the public, the footage of such encounters may become public records subject to disclosure. 8)Author's amendments. The author has requested the following technical amendments to the bill: The first amendment would revise the recommended best practice pertaining to peace officer review of video to require that a supervisor show a peace officer the video once an initial report has been submitted and approved, and that the officer must be given an opportunity to provide additional information to supplement his or her statement. The current language of the bill was mistakenly drafted to be permissive. AB 66 Page 13 On page 3, line 38 and 39, strike and replace "may" with "shall" The second amendment would shift the provisions requiring that the use of body-worn cameras be subject to collective bargaining pursuant to the Meyers-Milias-Brown Act from a requirement to a recommended best practice. On page 6, cut lines 18-22, and add them to Section 2 at page 4, line 24, as (a)(7); strike and replace "Myers" with "Meyers" 9)Related Legislation. AB 69 (Rodriguez) specifies a set of best practices that a law enforcement agency, department or entity establishing policies and procedures for the implementation and operation of a body-worn camera system must consider. AB 69 is currently pending in the Assembly Privacy and Consumer Protection Committee. AB 65 (Alejo) would redirect funds from the Driver Training Penalty Assessment Fund and allocates that money to the Board of State and Community Corrections to be used to fund local law enforcement agencies to operate a body-worn camera program. AB 65 is currently pending on the Suspense File in the Assembly Appropriations Committee. AB 1246 (Quirk) would prohibit the disclosure of a recording made by a body-worn camera, except to the person whose image is recorded by the body worn camera. AB 1246 is currently AB 66 Page 14 pending in the Assembly Public Safety Committee. SB 175 (Huff) would require each department or agency that employs peace officers and that elects to require those peace officers to wear body-worn cameras to develop a policy relating to the use of body-worn cameras. SB 175 is currently pending in on the Senate Floor. SB 195 (Anderson) would state the intent of the Legislature to enact legislation that protects the privacy of individuals recorded by body-worn cameras utilized by law enforcement officers and the privacy of the officers wearing these cameras. SB 195 is currently pending in the Senate Rules Committee. 10)Double-referral . This bill was double-referred to the Assembly Public Safety Committee, where it was heard on April 14, 2015, and passed out on a 5-1 vote. REGISTERED SUPPORT / OPPOSITION: Support A New PATH (Parents for Addiction Treatment and Healing) AB 66 Page 15 American Civil Liberties Union (ACLU) (4/20/15 version) American Federation of State, County and Municipal Employees (AFSCME) (4/9/15 version) Employee Rights Center FACTS Education Fund & Fair Chance Project San Diego Organizing Project Urban League of San Diego County (4/20/15 version) Opposition AFSCME, Local 685(4/9/15 version) Association for Los Angeles Deputy Sheriffs (4/9/15 version) California Association of Highway Patrolmen California State Lodge, Fraternal Order of Police California State Sheriffs' Association (4/20/15 version) AB 66 Page 16 Chief Probation Officers of California (4/20/15 version) Long Beach Police Officers Association Los Angeles County Professional Peace Officers Association Los Angeles Police Protective League (4/9/15 version) Los Angeles Probation Officers Union (4/9/15 version) Peace Officers Research Association of California (PORAC) (4/20/15 version) Riverside Sheriffs' Association (4/9/15 version) Sacramento County Deputy Sheriffs Association Santa Ana Police Officers Association Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200 AB 66 Page 17