BILL ANALYSIS                                                                                                                                                                                                    



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          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.









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          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  








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                 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  








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            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.










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               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  








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                 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))








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          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  








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            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  








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            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  








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            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  








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            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,"  








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            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.










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              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  








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            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)








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          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)








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          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














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