The widespread adoption of body-worn cameras (BWCs) by law enforcement agencies throughout the United States has transformed public expectations of transparency and accountability in policing. While much of the transparency brought by BWCs has had a positive influence on policing, it has also created complex challenges. This article summarizes important elements of California law that shape the policymaking framework at the local level in California.
Developing effective practice in the field
Widespread use of BWCs in law enforcement is still relatively new in the United States. As with any new technology, the use of BWCs has raised as many questions as it has answered. Across the country, laws and policies vary dramatically. Some states mandate BWC use, while others, including California, leave most of the policymaking decisions to local agencies.
Field considerations have been a significantly complex area for agencies to navigate. These are a few of the issues that an agency must consider:
- Which camera? Although digital camera technology has evolved at a dramatic pace over the last decade, deciding which model to use is rarely a simple task. Agencies typically face a host of offsetting considerations, which include price, functionality, and ease of integration with existing equipment.
- How are cameras to be worn? Depending on the model of camera, how an officer carries it can have significant impacts on the kind of data it collects and how the officer’s day-to-day work may be affected.
- When are officers required to record? Unless mandated by law, agencies have leeway to determine how much control officers have over their BWCs. Continuous recording raises a host of concerns, including privacy of officers and citizens. On the other hand, allowing officers to control their cameras can open the door for mistakes at least, misconduct at worst. The law prohibits recording in certain contexts, including inside hospitals or during conversations with confidential informants or victims of sexual assault.
Body-worn cameras present significant data management challenges
As adoption of BWCs becomes the norm, local agencies are learning that they come with many costs beyond the expense of new equipment and training. Data storage, security, and management are significant “hidden” costs of gathering hundreds or even thousands of hours of video every week.
Section 3 of Assembly Bill 1953, adopted in 2016, enumerates a set of best practices that agencies must take into account as they develop data handling polices. AB 1953’s requirements are designed to ensure that agencies are preserving recordings in a manner that is secure, robust, and organized. Broadly speaking, these are the guiding principles AB 1953 requires:
- Data handling. Agencies must adopt clear procedures governing how BWC data is handled and stored. Following any serious incident, such as a use of force, the officer’s supervisor may be required to take physical possession of the BWC and personally ensure its data is downloaded to the agency’s database. The law also requires agencies to specify when data must be downloaded, who is responsible for downloading it, and how it is categorized and organized. Access logs must be permanently retained.
- Data retention. Given the volume of data generated by BWCs, storage can become a significant expense. AB 1953 requires agencies to retain recordings for at least 60 days. Certain recordings, including use-of-force incidents and arrests, must be retained for longer periods.
- Camera maintenance. Policies must provide for regular maintenance of BWCs to ensure they are ready for use when they are deployed into the field.
- Data security. AB 1953 requires agencies to consider data security and integrity from several different angles. Data must be stored to prevent tampering, deletion, copying, or other unauthorized use.
- Third-party vendors. Many agencies lack the space or personnel to maintain servers for BWC data storage. Among other things, AB 1953 reminds agencies that they must consider chain-of-custody when they work with an outside partner to manage their data.
BWC recordings are public records under California law
California law defines BWC recordings as public records that are subject to Public Records Act requests in some situations. A pair of laws passed in 2018, SB 1421 and AB 748, changed the way BWC data must be treated when recordings relate to certain defined incidents.
California law provides four categories of incident that create public disclosure requirements for related recordings:
- Incidents involving the discharge of a firearm by an officer at a person
- Incidents of use of force that result in death or great bodily injury
- Upon a sustained finding by a law enforcement agency or an oversight agency that a law enforcement officer sexually assaulted a member of the public
- Upon a sustained finding by a law enforcement agency or an oversight agency that a law enforcement officer engaged in certain unethical behavior, such as falsifying evidence, committing perjury, or filing false reports.
Under the law, agencies may withhold recordings that are subject to the disclosure rules only under certain circumstances. Absent an exception, a recording must be disclosed no later than 45 days after receiving a valid request.
Compliance with these disclosure requirements has become a significant burden for California’s law enforcement agencies. Properly reviewing and redacting videos to protect ongoing investigations and privacy rights is time-consuming and complicated. Officers are often going into peoples’ homes or interacting with people who are not having their best day. Under the California Supreme Court’s ruling in National Lawyers Guild v. City of Hayward, 9 Cal.5th 488 (2020), agencies must bear the cost of redactions in response to a citizen request if the redacted materials are subject to exemption from disclosure.
Jones & Mayer has the guidance your agency is looking for
Untangling the complicated knot of issues around body-worn cameras requires patience, diligence, and insight. The attorneys at Jones & Mayer counsel local agencies throughout California. Reach out to Partner James Touchstone if you have questions regarding your agency’s use of body-worn cameras or other policing matters. He can be reached by email at jrt@jones-mayer.com, or by phone at (714) 446-1400.