Mdel Plice Plicy Bdy Wrn Cameras An Aid fr Prsecutrs June 2016
INTRODUCTION This mdel plicy is created as a guide t prsecutrs wh are wrking with law enfrcement agencies t implement bdy wrn cameras. The plicy includes Use Ntes, which present and cnsider viable alternative plicies that may exist fr a particular issue. Als accmpanying the mdel plicy is a checklist utlining the many issues that shuld be addressed in a bdy wrn camera plicy. This mdel evlved frm a plicy riginally created by a subcmmittee f the CDAA Fundatin, headed by David Angel f the Santa Clara Cunty District Attrney s Office. Subcmmittee members include Michael Cabral (Riverside Cunty District Attrney s Office), Damn Msler (San Dieg Cunty District Attrney s Office), and Shawn Randlph (Ls Angeles Cunty District Attrney s Office), with significant cntributins frm Julie Selsberg (past Chair f the Clrad Prsecutrs Best Practices Cmmittee) and Kristine Hamann (Executive Directr and Funder f Prsecutrs Center fr Excellence). Mdel Plice Plicy Bdy Wrn Cameras (June 2016) 1
PURPOSE AND SCOPE Law enfrcement agencies electing t emply Bdy Wrn Cameras (BWC) shuld use a cnsistent prtcl. The purpse f this prtcl is t prvide recmmendatins and guidance. It recgnizes that each law enfrcement agency is unique and that this plicy is nly intended t be used as a fundatin frm which individual plicies may be derived. All departments are strngly encuraged t have a plicy and t review the plicy with their lcal prsecutrs. BWCs will assist and cmplement fficers in the perfrmance f their duties. When BWCs are used t recrd certain enfrcement activities, they can prvide a valuable visual and audi recrd f the incident. It is anticipated that these recrdings will: 1. Prvide an investigative recrd fr the law enfrcement agency. 2. Prvide evidence regarding an incident t which the fficer respnded. 3. Assist in reprt writing. 4. Prvide a mre transparent recrd f encunters with law enfrcement and enhance cmmunity trust. 5. Hld fficers accuntable fr their cnduct and prtect fficers frm unfunded allegatins f miscnduct. 6. Reduce litigatin in the criminal justice system. USE OF BODY WORN CAMERAS BEFORE GOING OUT ON PATROL Care f the Camera Care f the issued BWC is subject t individual departmental plicy, and it shall be perated and maintained accrding t the manufacturer s instructins and recmmendatins. Testing Equipment At the beginning f each shift, fficers shall determine whether their recrding equipment is wrking satisfactrily. If a prblem is fund, the fficer shall arrange fr repair r adjustment. The fficer shall als ensure that the recrder has sufficient memry and battery pwer t cmplete his r her shift. If the system is malfunctining, the fficer shall immediately reprt this t his r her supervisr. Inperable Camera If a BWC malfunctins r is inperable and the fficer cannt utilize a BWC during his r her shift, this shall be nted in all written reprts s that there is a cntempraneus recrd. Psitins f the Camera Each fficer shall ensure that the BWC is prperly wrn and psitined t recrd events. Mdel Plice Plicy Bdy Wrn Cameras (June 2016) 3
USE OF THE CAMERA DURING A SHIFT 1 Mandatry Recrding Starting Prir t an Incident Every fficer shall make every reasnable effrt t activate the BWC prir t making cntact in any f the fllwing incidents where recrding shall be the rule and nt the exceptin. If circumstances prevent an fficer frm recrding, they must be nted alng with an explanatin in any subsequent reprt. If the fficer decides t turn ff a camera during an incident, the fficer shuld state the reasn n the recrding when pssible. Any enfrcement-riented r investigative encunters t cnfirm r dispel a suspicin that the persn may be invlved in criminal activity. This includes detentins, vehicle stps, pedestrian stps, and cnsensual encunters. Searches pursuant t prbatin, parle, pst-release cmmunity supervisin, mandatry supervisin, r cnsent. Service f search warrants r arrest warrants. All suspect statements pursuant t departmental plicy regarding the recrding f suspect statements. 2 Other Mandatry Recrdings Officers shall make a reasnable effrt t recrd nn-enfrcement cntacts shuld they becme cnfrntatinal, assaultive, r enfrcement riented. Discretinary Recrding It is recmmended that fficers recrd: Witness interviews pursuant t departmental plicy n recrding witness interviews and mindful f witness safety. Nn-enfrcement events when an audi/vide recrd culd have value as evidence. Unauthrized Uses Bdy wrn cameras shuld nt be used: Outside the scpe f fficial business. When entering a public lcker rm, changing rm, restrm, dctr s r lawyer s ffice, r ther place where individuals unrelated t the investigatin are present and wuld have a reasnable expectatin f privacy. Hwever, exigency, cnsent, r ther factrs may allw recrding. T dcument cnversatins with ther fficers unless incidental t authrized recrdings. 1. USE NOTE: There is a range f legitimate plicies fr deciding when an agency shuld require recrding. Mst departments will want t begin recrding at the beginning f any enfrcement-riented encunter. Others will pt fr an even brader plicy f recrding. Sme may even want t recrd all events based upn invariable bjective criteria, such as every time an fficer leaves the squad car. Hwever, as the plice fficer s discretin is reduced, the risk f interfering with beneficial plice interactins increases. If the camera is always running, civilians may feel very reluctant t apprach the plice. Furthermre, interactin between fficers will be disrupted if they knw that every wrd they say is recrded. On the ther hand, n plicy and t much discretin can result in incnsistencies between fficers and the failure t recrd imprtant events. 2. USE NOTE: Departments will have a range f plicies gverning when suspect statements shuld be recrded. In general, suspect statements shuld be recrded, but there may be circumstances when that is inadvisable. Fr example, sme suspects will agree t give a statement nly if it is nt recrded. In ther circumstances, public safety will weigh against recrding the statement. It is imprtant that the fficer cmply carefully with the departmental plicy s that the absence f a recrding can be explained by reference t that plicy. 4 Mdel Plice Plicy Bdy Wrn Cameras (June 2016)
Terminating the Recrding 3 Once activated, the recrding shuld nt be intentinally terminated until the cnclusin f the encunter unless tactical, safety, r practical reasns dictate therwise. Anytime the recrding is terminated early, the reasns shall be dcumented in writing r n the recrding. If n plice reprt is filed fr the recrded encunter, the reasns fr the early terminatin f the recrding shall still be dcumented cntempraneusly in sme manner. CONSENT FOR RECORDING 4 Officers are nt required t advise r btain cnsent fr recrding a persn prvided the recrding is: In a public place. In a lcatin where there is an expectatin f privacy but the fficer is lawfully present, fr example, in a hme being searched pursuant t a search warrant. UPLOADING DATA The BWC data shuld be upladed in a timely manner by prperly trained and authrized persnnel accrding t departmental plicy. N persn shall tamper with r alter the BWC data except as authrized by departmental plicy. N stred image r ther data may be cpied, destryed, r disseminated fr unauthrized reasns. The data shall be stred in a secure manner with all reasnable precautins taken t prevent unauthrized access and tampering. 5 DOCUMENTING RECORDINGS 6 Officers shall nte in arrest and ther reprts when BWC recrds were made assciated with that incident. 3. USE NOTE: There is a range f legitimate ptins cncerning when an agency shuld allw the terminatin f recrdings. Sme agencies may wish t limit fficer discretin and mandate recrding until the encunter has fficially terminated. Fr example, sme agencies may wish t mandate recrding until a suspect is released r bked. Hwever, this practice culd be very expensive and restrictive. If multiple fficers are at the same event, such as maintaining a perimeter arund an empty hme while awaiting a search warrant, it is prbably unnecessary t mandate every fficer t recrd. 4. USE NOTE: Individual states may have laws that limit recrdings withut infrming r attaining cnsent frm all parties. In additin, many agencies may decide that even thugh their fficers are nt required t infrm and gain cnsent prir t recrding, it may be a best practice t d s in apprpriate cnditins. 5. USE NOTE: BWC recrdings are real evidence and may ften be the mst imprtant evidence in a case. Agencies must take the same care t secure the integrity f this evidence as with any ther frm f evidence in a criminal case. Particular care must be taken if using private vendrs t prvide ff-site strage t ensure that this evidence is as secure as if the agency were string the evidence itself. One slutin might be t immediately transfer BWC recrdings that are being used fr criminal cases t a lcal file. 6. USE NOTE: Prsecutrs must have the ability t gather all recrdings related t a criminal incident r investigatin. Special care must be taken when multiple agencies and multiple BWC vendrs are invlved in the same investigatins t ensure that all recrdings are accunted fr. Mdel Plice Plicy Bdy Wrn Cameras (June 2016) 5
The BWC identifier shall be nted in the reprt fr any incident where a reprt is taken and a BWC was activated. The upladed BWC data must be tagged in such a manner s that it can be accurately assciated with any assciated plice reprt. The upladed BWC recrding must be assciated with the date and time f recrding and lcatin t assist in later retrieval. REVIEW AND DISSEMINATION OF THE BODY WORN CAMERA DATA Recrdings may be reviewed in any f the fllwing situatins: By fficers viewing their wn recrdings pursuant t departmental plicy. 7 By a supervisr investigating a specific incident. By a department detective r investigatr wh is participating in an fficial investigatin, such as a criminal investigatin, a persnnel cmplaint, r an administrative inquiry. By thers with the permissin f a supervisr if they are participating in an fficial investigatin r fr ther fficial reasns. By media persnnel in accrdance with the law and with the permissin f the chief f plice, sheriff, r his r her designee. 8 [Due t the heightened privacy cncerns assciated with vide recrding, any BWC recrding disclsed t the media may be edited t preserve the privacy f individuals unrelated t the case wh were captured by the BWC recrding when they had a reasnable expectatin f privacy.] The department shall retain a list f all persns wh have requested and/r been given access t a specific recrding. BWC recrdings related t criminal charges shall be treated the same as ther frms f direct evidence that must be prvided t the prsecutin and are subject t discvery and disclsure in accrdance with law. Prsecuting agencies must be made aware f all BWC recrdings when they pertain t any criminal case s they can cmply with their discvery bligatins. Similarly, BWC recrding evidence must be secured and subject t chain-f-custdy plicies t prtect the integrity f the evidence. Any persn authrized t review the recrding can nly cpy r disseminate it fr fficial purpses pursuant t department plicy. 9 7. USE NOTE: There is divergent pinin as t when fficers shuld be allwed t review recrdings when there has been an fficer-invlved shting r any use f frce resulting in serius injury. Sme departments prhibit fficers frm reviewing such ftage until after they have given an initial statement. It is recmmended that the department have a transparent plicy n the viewing f an fficer s recrding. 8. USE NOTE: The disseminatin t the media f recrdings frm BWC can play a vital rle in reassuring the public after a cntrversial enfrcement actin. Great care must be taken t ensure that recrdings are nt released prematurely in a manner that culd jepardize nging investigatins and prsecutins. Hwever, agencies must have a cnsistent plicy s that they are nt accused f nly releasing the recrdings that they deem helpful. 9. USE NOTE: In general, all data assciated with a criminal r civil case shuld nly be disseminated in a manner cnsistent with existing plicy n the disseminatin f evidence. In sme cases, an agency may wish t disseminate ftage frm a BWC t the general public in rder t cnfirm r dispel public cncern abut a plice actin. An agency shuld cnsider a plicy f when, and if, it will release ftage in nn-criminal cases. 6 Mdel Plice Plicy Bdy Wrn Cameras (June 2016)
Due t the heightened privacy cncerns assciated with vide recrding, when apprpriate, curt rders and/r redactin limiting the public disseminatin f the BWC recrding may be secured prir t distributin. RETENTION AND PURGING 10 Recrdings relating t incidents where criminal charges are filed shall be retained fr the perid set by the departmental plicy n evidence retentin. 11 BWC recrdings relating t ptential criminal charges that are nt filed shall be retained fr at least ne year after the statute f limitatins has expired. BWC recrdings relating t cmplaints against an fficer, whether externally r internally generated, shall be retained in accrdance with applicable law r until the matter has been reslved, whichever is later. Nte: a civil actin against an fficer may trigger additinal retentin requirements. BWC recrdings f rutine events that are nt assciated with either a criminal investigatin r an Internal Affairs Cmplaint shall be retained fr 90 days. 12 10. USE NOTE: Different jurisdictins will have different rules gverning retentin. Hwever, in general, it is advised t distinguish data frm a BWC that is assciated with a case and data that is nt. Data that is assciated with a case shuld be attached t that case and kept in accrdance with hw ther evidence is retained. Data that is nt assciated with a case culd be kept fr a much shrter perid f time. 11. USE NOTE: In general, recrdings frm a BWC that are assciated with a criminal case shuld be attached t the criminal file and kept accrding t departmental plicy n the retentin f evidence. A gd guideline wuld be t keep the evidence fr sme perid f time until the last f these events has ccurred: 1. The matter is reslved; 2. The defendant has been released frm custdy due t the cmpletin f the sentence and cmpleted any term f pst-custdy supervisin such as prbatin, parle, mandatry supervisin, r pst-release cmmunity supervisin; 3. The appeal and pst-cnvictin mtins are final; r 4. The BWC recrding may be destryed earlier than this prvided that the district attrney r ther prsecuting agency, all defendants, and the relevant cunsel fr legal representatin fr the law enfrcement agency which made the BWC recrding are ntified and given time t bject prir t any destructin f the BWC recrding related t a criminal incident. 12. USE NOTE: Sme jurisdictins may have laws gverning the minimum and maximum time a recrding made by a gvernment agent must be retained. Mdel Plice Plicy Bdy Wrn Cameras (June 2016) 7
CHECKLIST FOR PROSECUTORS TO REVIEW BODY WORN CAMERA POLICIES June 2016 The Law Enfrcement Agency Plicy cntains: Purpses and Scpe Sectin m Limits BWC t law enfrcement purpses m Prhibits unauthrized use Training Officers m Plicy and use f BWCs Pre-use Requirements m Check BWC s perability m Dcument any prblems r inperability m Decide wh will wear the BWCs and hw they will be assigned m Placement f cameras Camera Usage Specificatins m When is recrding mandatry? Upn leaving squad car? Upn any enfrcement r investigative encunter? Upn all citizen cntacts? m When is recrding discretinary? Upn all citizen cntacts r nly adversarial citizen cntacts? Upn citizen cntacts with agitated r disturbed citizens? m Cnsent recrdings Is cnsent required prir t activatin? m When is recrding prhibited? Lcker rms and changing areas Dctrs and lawyers ffices Fellw fficers withut fficial cause When unauthrized m When t terminate recrding Upn cmpletin f arrest? Upn return t statin? When n reasn t expect further incidents f evidentiary value? Upn citizen request? Requirement t dcument reasns fr terminating recrding? m Other areas fr usage plicies t cver: Discretin fr fficer t deviate frm plicies when articulable exigencies exist [dcumenting deviatins required] Recrding witness statements Recrding suspect statements Recrding victim statements [special cnsideratins fr sexual assault, dmestic vilence, and juvenile victims] Mdel Plice Plicy Bdy Wrn Cameras (June 2016) 9
Uplading Data m Hw and when data gets upladed frm BWC m Prhibit unauthrized editing, cpying, and distributin Data Strage m Anticipate data strage demands m Prvide adequate security fr the data m Ensure the strage plan allws law enfrcement cmplete access t the data Dcumenting Recrdings m All fficers required t dcument use f BWC at any given incident r scene m Prvide a mechanism fr ensuring that prsecutrs receive all recrdings f a particular incident r scene Reviewing BWC Recrdings m When fficers are allwed t review their wn recrdings m When fficers are allwed t review thers recrdings m When supervisrs are allwed t review recrdings m Plicy fr incidents invlving fficer-invlved shtings r ther use-f-frce incidents m Treat BWC recrdings cnsistently with hw ther physical evidence is treated m Prhibit unauthrized review Disseminatin/Discvery fr Prsecutrs m Recrdings frm criminal cases must be secured and prvided t the prsecutin as is any ther real evidence m Allw the agency s prsecutr s ffices full access t evidence assciated with a criminal case that is submitted fr prsecutin m Prcess fr prsecutrs t btain the infrmatin Disseminatin fr Others m Clear rules fr disclsure and disseminatin t the media and general public Redactin Cnfrming t state pen recrds laws m Prhibit unauthrized disclsure, reprductin, r editing Retentin m Clear retentin plicy cnsistent with evidence-retentin plicies Specified retentin perids fr: * Criminal cases * Civil cases * Internal investigatins m Clear guidelines fr destructin f recrdings When it is nt evidence in criminal, civil, r internal investigatin When inadvertent recrding that captures private encunter has n evidentiary value 10 Mdel Plice Plicy Bdy Wrn Cameras (June 2016)