SENATE, No. 1382

STATE OF NEW JERSEY

217th LEGISLATURE

 

INTRODUCED FEBRUARY 11, 2016

 


 

Sponsored by:

Senator  NIA H. GILL

District 34 (Essex and Passaic)

 

 

 

 

SYNOPSIS

     Regulates use of body cameras worn by law enforcement officers.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning law enforcement mobile video recording systems and supplementing Title 40A of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

1.         a.  For the purposes of this section:

     “Body worn camera” means a mobile video recording system worn by a law enforcement officer. 

     "Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest, and conviction of offenders against the laws of this State. 

     “Mobile video recording system” shall have the same meaning as set forth in section 1 of P.L.2014, c.54 (C.40A:14-118.1). 

     "School" means a public or nonpublic elementary or secondary school within this State offering education in grades kindergarten

through 12, or any combination of grades, at which a child may legally fulfill compulsory school attendance requirements.

     “Subject of the video footage” means any law enforcement officer, suspect, victim, detainee, conversant, injured party, or other similarly situated person who appears on the body camera recording, and shall not include a person who only incidentally appears on the recording.

     b.  Only a law enforcement officer shall be authorized to wear a body worn camera in this State.  A body worn camera shall be placed so that it maximizes the camera’s ability to capture video footage of the officer's activities.

     c.  The video and audio recording functions of a body worn camera shall be activated whenever the officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between an officer and a member of the public; provided however, if an immediate threat to the officer's life or safety makes activating the body worn camera impossible or dangerous, the officer shall activate the body worn camera at the first reasonable opportunity to do so.  The body worn camera shall remain activated until the encounter has fully concluded and the officer leaves the scene. 

     d.  A law enforcement officer who is wearing a body worn camera shall notify the subject of the recording that the subject is being recorded by the body worn camera as close to the inception of the encounter as is reasonably possible. 

     e.  Notwithstanding the requirements of subsection c. of this section:

     (1) prior to entering a private residence without a warrant or in non-exigent circumstances, a law enforcement officer shall ask the occupant whether the occupant wishes the officer to discontinue use of the officer's body worn camera; if the occupant responds affirmatively, the officer shall immediately discontinue use of the body worn camera;

     (2) when interacting with an apparent crime victim, a law enforcement officer shall, as soon as practicable, ask the victim whether the victim wants the officer to discontinue use of the body worn camera; if the victim responds affirmatively, the officer shall immediately discontinue use of the body worn camera; and

     (3) when interacting with a person seeking to anonymously report a crime or assist in an ongoing law enforcement investigation, a law enforcement officer shall, as soon as practicable, ask the person seeking to remain anonymous whether the person wants the officer to discontinue use of the body worn camera; if the person responds affirmatively, the officer shall immediately discontinue use of the body worn camera.

     f.  An offer to discontinue the use of a body worn camera made by a law enforcement officer pursuant to subsection e. of this section and the response to the offer shall be recorded by the recording system prior to discontinuing use of the recording system.

     g.  A body worn camera shall not be used surreptitiously.

     h.  A body worn camera shall not be used to gather intelligence information based on First Amendment protected speech, associations, or religion, or to record activity that is unrelated to a response to a call for service or a law enforcement or investigative encounter between a law enforcement officer and a member of the public.

     i.  A law enforcement officer shall not activate a body worn camera while on school grounds, except when the officer is responding to an imminent threat to life or health.

     j.  Video footage from a body worn camera shall be retained by the law enforcement agency that employs the officer for six months from the date it was recorded, after which time the footage shall be permanently deleted except:

     (1)   the video footage shall automatically be retained for not less than three years if it captures images involving:

     (a)  any use of force;

     (b) events preceding and including an arrest for a crime or attempted crime; or

     (c)  an encounter about which a complaint has been registered by a subject of the video footage.

     (2)  the video footage shall be retained for not less than three years if a longer retention period is voluntarily requested by:

     (a) the law enforcement officer whose body worn camera recorded the video footage, if that officer reasonably asserts the video footage has evidentiary or exculpatory value;

     (b) a law enforcement officer who is a subject of the video footage, if that officer reasonably asserts the video footage has evidentiary or exculpatory value;

     (c)  any superior officer of a law enforcement officer whose body worn camera recorded the video footage or who is a subject of the video footage, if that superior officer reasonably asserts the video footage has evidentiary or exculpatory value;

     (d) any law enforcement officer, if the video footage is being retained solely and exclusively for police training purposes;

     (e) any member of the public who is a subject of the video footage;

     (f)  any parent or legal guardian of a minor who is a subject of the video footage; or

     (g) a deceased subject's next of kin or legally authorized designee.

     k.  To effectuate subparagraphs (e), (f), and (g) of paragraph (2) of subsection j. of this section, the member of the public, parent or legal guardian, or next of kin or designee shall be permitted to review the video footage to determine whether to request a three-year retention period.

     l.  Notwithstanding that a criminal investigatory record does not constitute a government record under section 1 of P.L.1995, c.23 (C.47:1A-1.1), only the following video footage shall be exempt from public inspection:

     (1)  video footage not subject to a minimum three-year retention period pursuant to subsection j. of this section;

     (2) video footage subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (c) of paragraph (1) of subsection j. of this section if the subject of the video footage making the complaint requests the video footage not be made available to the public;

     (3) video footage subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (a), (b), (c), or (d) of paragraph (2) of subsection j. of this section; and

     (4) video footage subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (e), (f), or (g) of paragraph (2) of subsection j. of this section if a member, parent or legal guardian, or next of kin or designee requests the video footage not be made available to the public.

     m.  Any video footage retained beyond six months solely and exclusively pursuant to subparagraph (d) of paragraph (2) of subsection j. of this section shall not be admissible as evidence in any criminal or civil legal or administrative proceeding.

     n.  A law enforcement officer shall not review or receive an accounting of body worn camera video footage that is subject to a minimum three-year retention period pursuant to paragraph (1) of subsubsection j. of this section prior to completing any required initial reports, statements, and interviews regarding the recorded event.

     o.  Video footage not subject to a minimum three-year retention period shall not be viewed by any superior officer of a law enforcement officer whose body worn camera recorded the footage absent a specific allegation of misconduct, nor shall it be subject to any type of automated analysis or analytics.

     p. Video footage shall not be divulged or used by any law enforcement agency for any commercial or other non-law enforcement purpose.

     q.  If a law enforcement agency authorizes a third-party to act as its agent in maintaining footage from a body worn camera, the agent shall be prohibited from independently accessing, viewing, or altering any video footage, except to delete videos as required by law or agency retention policies.

     r.  If a law enforcement officer, employee, or agent fails to adhere to the recording or retention requirements contained in this act, or intentionally interferes with a body worn camera’s ability to  accurately capture video footage:          

     (1) appropriate disciplinary action shall be taken against the officer, employee, or agent;

     (2) there shall be a rebuttable presumption in favor of a criminal defendant who reasonably asserts that exculpatory evidence was destroyed or not captured; and

     (3) there shall be a rebuttable presumption in favor of a civil plaintiff suing the government, a law enforcement agency, or a law enforcement officer for damages based on police misconduct if the plaintiff reasonably asserts that evidence supporting the plaintiff’s  claim was destroyed or not captured.

     s. The disciplinary action requirement and rebuttable presumptions contained in subsection r. of this section may be overcome by contrary evidence or proof of exigent circumstances that make compliance impossible.

     t.  Any video footage from a body worn camera recorded in contravention of this or any other applicable law shall be immediately destroyed and shall not be admissible as evidence in any criminal, civil, or administrative proceeding.

     u.  Nothing in this act shall be deemed to contravene any laws governing the maintenance and destruction of evidence in a criminal investigation or prosecution.

 

     2. This act shall take effect on the first day of the seventh month after enactment.

STATEMENT

 

     This bill regulates the use of body cameras worn by law enforcement officers.

     Under the bill, only law enforcement officers are authorized to wear a body camera in this State.  A body camera is to be located on the officer where it maximizes the camera’s ability to capture video footage of the officer's activities.  The video and audio recording functions of the body camera are to be activated whenever the officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between an officer and a member of the public.  But if an immediate threat to the officer's life or safety makes activating the body worn camera impossible or dangerous, the officer is directed by the bill to activate the body camera at the first reasonable opportunity to do so.  The law enforcement officer wearing the body camera is required to notify the subject of the recording that he or she is being recorded as close to the inception of the encounter as is reasonably possible. 

     The bill specifies that a body camera is to remain activated until the encounter has fully concluded and the law enforcement officer leaves the scene.  The bill permits an officer to deactivate the camera before the conclusion of the encounter if requested by the occupant of a private residence being entered by the officer without a warrant or in non-exigent circumstances; a victim; or a person anonymously reporting a crime or assisting in an investigation.   

     The bill prohibits a law enforcement officer from using a body camera surreptitiously or to gather intelligence information based on First Amendment protected speech, associations, or religion, or to record activity that is unrelated to a response to a call for service or a law enforcement or investigative encounter between a law enforcement officer and a member of the public.  A law enforcement officer also is prohibited from wearing a body camera on school grounds, except when responding to an imminent threat to life or health.

      The bill requires video footage from a body camera to be retained by the law enforcement agency that employs the officer for six months from the date it was recorded.  The video footage is be permanently deleted after expiration of this six-month period.  But the bill makes certain exceptions to the six-month rule.  Video footage is to be retained for not less than three years if it captures images involving any use of force; events preceding and including an arrest for a crime or attempted crime; or an encounter about which a complaint has been registered by a subject of the video footage.

     Video footage also is to be retained for not less than three years if a longer retention period is voluntarily requested by the law enforcement officer whose body worn camera recorded the video footage, if that officer reasonably asserts the video footage has evidentiary or exculpatory value; a law enforcement officer who is a subject of the video footage, if that officer reasonably asserts the video footage has evidentiary or exculpatory value; any superior officer of an officer whose body worn camera recorded the video footage or who is a subject of the video footage, if that superior officer reasonably asserts the video footage has evidentiary or exculpatory value; a law enforcement officer, if the video footage is being retained solely and exclusively for police training purposes; a member of the public who is a subject of the video footage; a parent or legal guardian of a minor who is a subject of the video footage; or a deceased subject's next of kin or legally authorized designee.

     The bill also specifies when video footage from a body camera is exempt from the State’s open public records act.  Recent case law has held that police video recordings are exempt from public disclosure under the State’s open public records act because they pertain to criminal investigations.  Notwithstanding this law, the bill specifies that video footage from a body worn camera is not subject to public inspection only when:  1) the footage is not subject to a three-year retention period; 2) the footage constitutes a recording of an encounter about which a complaint has been registered by the subject of the footage and the subject requests the footage not be made public; 3) a law enforcement officer or superior officer reasonably asserts the video footage has evidentiary or exculpatory value or the footage is being used for police training purposes; and (4) a member of the public, parent or legal guardian, or deceased subject’s next of kin requests the video footage not be made available to the public.

     Further, the bill limits superior officers from viewing footage unless there’s an allegation of misconduct against the officer who recorded the footage and prohibits automated analysis or analytics.  Third party vendors contracted to maintain video footage are prohibited from viewing the footage other than to delete it.

     Finally, the bill requires disciplinary action to be taken against any law enforcement officer, employee, or agent who fails to adhere to the recording or retention requirements contained in the bill or who intentionally interferes with a body worn camera’s ability to accurately capture video footage.  A rebuttable presumption in favor of criminal defendants and civil plaintiffs is established if exculpatory evidence was destroyed or not captured.

     Any video footage from a body worn camera recorded in contravention of the bill’s provisions or any other applicable law is to be immediately destroyed and is not to be admissible as evidence in any criminal, civil, or administrative proceeding.