A5039 ACS

An Act concerning body worn and security cameras in State correctional facilities and supplementing Title 30 of the Revised Statutes.

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

1. For the purposes of this section:

“Body worn camera” means a mobile audio and video recording system worn by a correctional police officer in a State correctional facility.

“Force” shall include physical, emotional, mechanical, enhanced mechanical, and deadly force.

“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).

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

2. a. Notwithstanding the provisions of any other law to the contrary and subject to the limit of funds appropriated or otherwise made available for this purpose, the Commissioner of Corrections shall require all correctional police officers in every State correctional facility to wear a body worn camera that electronically records audio and video at all times while the officer is acting in the performance of the officer’s duties, except as provided in subsections b. and c. of this section.

b. A body-worn camera shall be deactivated:

(1) while the officer is using the restroom;

(2) during a State parole board hearing;

(3) during a court proceeding;

(4) during an officer’s medical assessment, appointment, or consultation;

(5) during a Department of Corrections meeting or while engaging in union representation of a member of the collective bargaining group; and

(6) during an interview of the victim of a Prison Rape Elimination Act allegation, unless the victim requests that the camera remain activated during the interview; prior to initiating the interview, the officer shall notify the victim that audio and video capabilities of the body worn camera will be deactivated during the interview unless the inmate requests that they remain activated; the body worn camera shall remain activated while the officer notifies the victim of the right to have the interview recorded and the victim’s stated preference to not record the interview prior to deactivation of the body worn camera.

c. The video capabilities of a body-worn camera shall be deactivated, but the audio shall remain activated:

(1) during a strip search or body cavity search; and

(2) when an officer is patrolling a restroom or shower facility.

d. Notwithstanding the provisions of subsections b. and c. of this section, the video and audio functions of the body worn camera shall remain activated at all times:

(1) during a riot;

(2) during any incident resulting in bodily injury or death;

(3) during any incident in which the officer exercises the use of force;

(4) during any incident that involves suspected criminal activity;

(5) while meeting with a confidential informant; and

(6) when directed by the commissioner or a superior officer for a lawful purpose.

e. A body worn camera used by a correctional police officer shall be placed so that it maximizes the camera’s ability to capture audio and video footage of the officer's activities.

f. A body worn camera recording shall be retained by the Department of Corrections for a retention period consistent with the provisions of this section, after which time the recording shall be permanently deleted. A body worn camera recording shall be retained for not less than 180 days from the date it was recorded, which minimum time frame for retention shall be applicable to all contracts for retention of body worn camera recordings executed by or on behalf of the Department of Corrections on or after the effective date of this act, and shall be subject to the following additional retention periods:

(1) a body worn camera recording shall automatically be retained for not less than three years if it captures images involving an encounter about which a complaint has been registered by a subject of the body worn camera recording;

(2) subject to any applicable retention periods established in paragraph (3) of this subsection to the extent such retention period is longer, a body worn camera recording shall be retained for not less than three years if voluntarily requested by:

(a) the correctional police officer whose body worn camera made the video recording, if that officer reasonably asserts the recording has evidentiary or exculpatory value;

(b) a correctional police officer who is a subject of the body worn camera recording, if that officer reasonably asserts the recording has evidentiary or exculpatory value;

(c) any immediate supervisor of a correctional police officer whose body worn camera made the recording or who is a subject of the body worn camera recording, if that immediate supervisor reasonably asserts the recording has evidentiary or exculpatory value;

(d) any correctional police officer, if the body worn camera recording is being retained solely and exclusively for officer training purposes;

(e) any member of the public who is a subject of the body worn camera recording;

(f) any parent or legal guardian of a minor who is a subject of the body worn camera recording;

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

(h) an inmate, the corrections ombudsperson, an inmate’s attorney, or counsel substitute of an inmate who is the subject of the body worn camera recording of an incident that results in a disciplinary action.

(3) Notwithstanding the provisions of paragraph (1) or (2) of this subsection, a body worn camera recording shall be subject to the following additional retention requirements:

(a) when a body worn camera recording pertains to a criminal investigation or otherwise records information that may be subject to discovery in a prosecution, the recording shall be treated as evidence and shall be kept in accordance with the retention period for evidence in a criminal prosecution;

(b) when a body worn camera records an arrest that did not result in an ongoing prosecution, or records the use of force by a correctional police officer, the recording shall be kept until the expiration of the statute of limitations for filing a civil complaint against the officer or the Department of Corrections; and

(c) when a body worn camera records an incident that is the subject of an investigation by the Department of Corrections Special Investigations Division, the recording shall be kept pending final resolution of the investigation and any resulting administrative or disciplinary action.

g. To effectuate subparagraphs (e), (f), and (g) of paragraph (2) of subsection f. of this section, the member of the public, parent or legal guardian, or next of kin or designee shall be permitted to review the body worn camera recording in accordance with the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) to determine whether to request a three-year retention period.

h. To effectuate subparagraph (h) of paragraph (2) of subsection f. of this section, the inmate, corrections ombudsperson, inmate’s attorney, or counsel substitute of an inmate who is the subject of the body worn camera recording of an incident that results in a disciplinary action shall be permitted to review the body worn camera recording in accordance with the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) to determine whether to request a three-year retention period.

i. 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 body worn camera recordings shall be exempt from public inspection:

(1) body worn camera recordings not subject to a minimum three-year retention period or additional retention requirements pursuant to subsection f. of this section;

(2) body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to paragraph (1) of subsection f. of this section if the subject of the body worn camera recording making the complaint requests the body worn camera recording not be made available to the public;

(3) body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (a), (b), (c), or (d) of paragraph (2) of subsection f. of this section; and

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

j. Any body worn camera recording retained beyond 180 days solely and exclusively pursuant to subparagraph (d) of paragraph (2) of subsection f. of this section shall not be admissible as evidence in any criminal or civil legal or administrative proceeding.

k. Except as otherwise provided in this section, a correctional police officer shall not review or receive an accounting of a body worn camera recording.

l. Body worn camera recordings shall not be divulged or used by the Department of Corrections for any commercial or other non-law enforcement purpose.

m. If the Department of Corrections authorizes a third-party to act as its agent in maintaining recordings from a body worn camera, the agent shall be prohibited from independently accessing, viewing, or altering any recordings, except to delete recordings as required by law or Department of Corrections retention policies.

n. If a correctional police 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 audio or video recordings:

(1) the officer, employee, or agent shall be subject to appropriate disciplinary action up to, and including, termination;

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

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

o. Any recordings 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.

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

3. a. The Commissioner of Corrections, in consultation with the Attorney General, shall promulgate or revise guidelines or directives, as appropriate, to implement and enforce the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. The commissioner shall issue a written summary of the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) related to the use of body worn cameras by correctional police officers. The commissioner shall ensure that a copy of the written policy is:

(1) provided to each inmate;

(2) published in the inmate handbook;

(3) posted on the Internet website of the Department of Corrections; and

(4) prominently posted throughout each State correctional facility.

4. a. In addition to funding provided through the annual appropriations act, the Legislature shall appropriate to the New Jersey Department of Corrections from the General Fund such sums as are necessary to carry out the purposes of this act.

b. In addition to funds appropriated pursuant to subsection a. of this section, the body worn cameras required by subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) may be funded by any other source of funding made available for this purpose, including but not limited to federal grants.

5. a. The Commissioner of Corrections shall install a state-of-the-art camera system in each State correctional facility for the purpose of maximizing supervision and protecting privacy.

b. The commissioner shall contract with a consultant with expertise in the area of surveillance cameras in correctional facilities to conduct a study of each facility to assist in the development and implementation of a comprehensive plan to install a camera system in each facility.

c. At a minimum, the plan for the camera system shall:

(1) evaluate the current number and location of cameras in the facility and to the extent possible, incorporate these cameras into the comprehensive plan;

(2) require installation of security cameras throughout the facility including, but not limited to, identified blind-spots, housing unit hallways and entryways, common spaces, and exterior locations;

(3) require systematic oversight and review of the footage obtained from the security cameras, including continuous monitoring by at least one correctional police officer per shift;

(4) require the correctional police officer assigned to monitor the cameras to immediately report any observed misconduct to the appropriate supervisor and submit a report to the corrections ombudsperson;

(5) establish administrative sanctions for a correctional police officer who does not comply with the provisions of this subsection; and

(6) require security camera footage to be maintained for not less than 90 days and when necessary to be retained indefinitely.

d. The commissioner shall submit to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) an annual report evaluating the effectiveness of the camera system including, but not limited to, a review of the location of cameras and whether maximum supervision is achieved. If the review indicates that a change to a camera location is necessary, the change shall be made within 30 days of the submission of the annual report. If a change cannot be made within 30 days, the reason for exceeding 30 days shall be documented.

e. Upon request, the commissioner shall make available to the Legislature security camera footage for investigatory purposes, the content of which shall remain strictly confidential.

6. This act shall take effect on the first day of the seventh month next following enactment.