Local Agencies Retain Broad Discretion Over Police Body Camera Policies

Another year has come and gone without comprehensive legislation in California on the use of police body-worn cameras.  Most observers expected that the state Legislature would have enacted legislation covering the major issues that local law enforcement agencies face when implementing the use of police body-worn cameras, but an ideological split within the Legislature has prevented the passage of comprehensive legislation, which means that local agencies have broad discretion on the specifics of their own policy.  While an agency can benefit from this broad discretion, the agency also has the burden of deciding on the best course of action with respect to a number of unsettled issues regarding the use of body-work cameras.

The officer-involved shooting of Michael Brown and the subsequent unrest in Ferguson, Missouri in 2014 was the most pivotal event in police-community relations in the United States since the Rodney King video and the Los Angeles riots.  The media attention on police interactions with community members spurred interest in a number of policy areas, including the use of body-worn cameras.  Since 2014, the number of agencies which have implemented body-worn camera programs has dramatically increased.

Legislative Stops and Starts
Like many observers, we expected the California Legislature to develop comprehensive legislation that would cover the major policy issues pertaining to body-worn cameras, such as when the cameras should be activated, when the cameras should not be activated, when the footage can be reviewed by officers prior to reports and/or interviews, and how the footage should be maintained.  That has not yet happened.

As of this writing, the only body-worn camera specific legislation concerns an agency’s retention of footage from body-worn cameras.  Penal Code section 832.18 governs the duration of time that an agency must keep body-work camera footage, depending upon whether the footage has evidentiary value.

Since 2015, the Legislature has been split between those who value the protection of law enforcement as the highest priority and those who value transparency as the highest priority.  An early attempt at comprehensive legislation stalled over the key issue of whether officers should be permitted to review body-worn camera footage before providing statements to investigators after high-profile events, such as officer-involved shootings.  The transparency advocates have also pushed for legislation that would allow for broad public disclosures of footage from body-worn cameras.  In contrast, one proposed bill that was recently defeated would have blocked agencies from the releasing any footage that depicted an officer’s tragic death without the consent of the officer’s family.

Remaining Controversial Issues
The inability of the Legislature to resolve these key disputes means that most of the controversial issues surrounding body-worn cameras have been left to the discretion of individual agencies.  Three key issues come to mind.  First, there is a split within the law enforcement community on whether officers should be able to review body-worn camera footage prior to providing a statement to investigators following an officer-involved shooting or use of force.  The view held by the majority of agencies is that the officer should be allowed to review the footage from his or her camera before providing a statement to investigators; the view held by a growing minority of agencies and held by civil rights and watchdog groups is that the officer should not be allowed to do so.  In the absence of legislation on the topic, an agency can choose either option for its own policy.

Second, due to the lack of a legislative direction, an agency must decide on when the use of body-worn cameras is (1) mandatory, (2) discretionary, (3) prohibited, and (4) excused (i.e. an officer is not required to activate the camera in a scenario in which the activation would otherwise be mandatory).  Sorting out the dividing line between these four categories is not easy, and issues relating to the privacy rights of citizens and officers also need to be addressed in an agency’s policy.

Finally, the Legislature has not provided agencies with clear directives on when footage must be disclosed and when the disclosure is prohibited.  While the California Public Records Act (CPRA) applies to the body-worn camera footage, the applicability of certain exemptions that would allow agencies to block the disclosure of footage has not been resolved by the California courts.

How Do Local Agencies Proceed?
The Legislature’s inability to pass comprehensive legislation on the topic means that agencies retain the ability to craft experimental policies to decide on what works best.  At the same time, this broad discretion means that an agency has any number of pitfalls that can arise in the formulation and implementation of a body-worn camera policy.  Taking advantage of these opportunities, while minimizing the risks, should be the top priority of every agency as the use of body-worn cameras proliferates.

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