HOUSE DOCKET, NO. 2919        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2504

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Denise Provost

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act promoting the use of body-worn cameras by law enforcement.

_______________

PETITION OF:

HOUSE DOCKET, NO. 2919        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2504

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 2170 OF 2015-2016.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninetieth General Court
(2017-2018)

_______________

An Act promoting the use of body-worn cameras by law enforcement.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. There shall be added a new section 98H of Chapter 41 of the Massachusetts 4 General Laws, as follows: 5

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Section 1 -- Definitions 7

(a) Definitions 8

(1) A “Personal audio-video recording device” is an intercepting device within the 9 meaning of 272 MGL §99, which can capture, from an officer’s point of view, video 10 and audio recordings, and which is attached to an officer’s clothing, helmet, or 11 sunglasses. 12

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Section 2 – Law Enforcement Data Review Committee 14

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(a) There is created a Law Enforcement Data Review Committee (‘Committee’), consisting 16 of not more than 13 members, which shall independently exercise its powers, duties, and 17 responsibilities. The Committee shall have the authority to allow additional 18 participation from various groups that the Committee deems necessary for additional 19 input. 20

(b) The Committee shall consist of: 21

(1) two legislators, one member appointed by the Senate President and one member 22 appointed by the Speaker of the House; 23

(2) the Attorney General or designee; 24

(3) the Secretary of Public Safety and Security or designee, who shall serve as chair; 25

(4) the Registrar of Motor Vehicles or designee; 26

(5) the Colonel of the Massachusetts State Police or designee; 27

(6) the Chief Counsel of the Committee for Public Counsel Services or designee; 28

(7) one police officer from a municipal law enforcement agency, appointed by the 29 Massachusetts Police Association; 30

(8) one member of the Massachusetts Chiefs of Police Association and one member of 31 the Massachusetts Major City Chiefs Association, each selected by their respective 32 boards of directors; 33

(9) two members of community and/or civil rights advocacy organizations appointed by 34 the Governor; and 35

(10) one expert from a Massachusetts college or university with specific expertise in 36 both statistical analysis and law enforcement, appointed by the Governor. 37

(c) All Committee members shall serve, without compensation, for two years and until their 38 successors are appointed. Members may be reappointed for an unlimited number of 39 terms. The Committee shall meet at least quarterly. The Executive Office of Public 40 Safety and Security shall provide staff and administrative services for the Committee. 41

(d) The Committee shall have the following powers, duties, and responsibilities: 42

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(1) to operate as an advisory body and make recommendations, which may be reported 43 to the Governor, the Secretary of Public Safety and Security, to the General Court, 44 to state, municipal, college or university police departments and to other law 45 enforcement entities identified as appropriate by the Committee; 46

(2) to promulgate model policies for law enforcement entities that are designed to 47 protect individuals' civil rights during traffic stops and other police stops; 48

(3) to recommend to law enforcement entities models for training on data collection and 49 analysis to engage agencies; 50

(4) to identify and recommend best practices for stop data collection and analysis, 51 including best practices for making use of advanced technologies, and to advise the 52 Executive Office of Public Safety and Security regarding the development of a 53 system for law enforcement entities to electronically gather, record, report and 54 dispose of information concerning motor vehicle accidents, violations, traffic stops, 55 pedestrian stops and citations; 56

(5) to consider and make recommendations about how to determine the baseline data 57 against which data collected pursuant to subsection (d)(4) shall be measured; 58

(6) to review reports compiled pursuant to subsections (d)(1) and (d)(4), and, as 59 necessary, other data or reports collected or compiled pursuant to this section, and 60 to consider and propose solutions to identify, eliminate and prevent racial profiling; 61

(7) to support and encourage law enforcement departments in their outreach to local 62 communities concerning a) the goals of law enforcement via traffic and pedestrian 63 stops, b) perceived racial and ethnic disparities in traffic stops and other law 64 enforcement activities, and c) strategies for monitoring and reducing such disparities 65 where found to exist; 66

(8) to receive comment and participation from the public at public hearings; 67

(9) to review reports, analyses, recommendations, and conclusions compiled using data 68 collected in connection with the implementation of Massachusetts Chapter 228 of 69 the Laws of 2000, and to consider such reports, analysis, recommendations and 70 conclusions in executing the powers, duties, and responsibilities under this 71 subsection; 72

(10) to issue and release to the public an annual report to the Governor, no later than 73 September 1, regarding the Committee’s activities during the previous fiscal year 74 and the results of any statistical analyses conducted, which report shall also be filed 75 with the Clerks of the Senate and the House of Representatives; 76

(11) to issue and release to the public a triennial report in relation to the Minimum Core 77 Standards set out in Section 3(d) on or before December 1 of the required year; and 78

(12) to review the complaints of citizens who have exhausted administrative remedies 79

within a police department regarding the unauthorized release of audio-video 80 recordings, or the failure to release such recordings as described in Section 3(c)(2). 81

(e) The Committee may employ support staff to execute their statutory obligations, subject 82 to appropriation. The Committee may also employ such other staff and attorneys as it 83 determines, all of whom shall be in the unclassified service and shall receive such 84 compensation as is fixed by the Committee. 85

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(f) The Committee shall have access to all video footage generated audio-visual recording 86 devices of each law enforcement entity, but audio-visual recordings received by the 87 Committee shall not be redisclosed to third parties except as outlined in Section 3(c)(2). 88

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Section 3 – Requirements for Personal Audio-Video Recording Devices 90

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(a) General Obligation. 92

Each police officer in this State shall be equipped with a personal audio-video recording 93 device. Each law enforcement entity with primary enforcement authority over any 94 jurisdiction within this state must establish a plan to carry out the foregoing obligation 95 in accordance with Subsection 2 below. 96

(b) Applicability to Massachusetts wiretapping statute 97

Notwithstanding any provision of 272 MGL §99: 98

(1) All uses of an officer’s personal audio-video recording device must be made in plain view of 99 the individual or individuals who are being recorded during an interaction with the officer. 100

(2) Officers using personal audio-visual recording devices must inform the individual or 101 individuals who are being recorded that the audio and visual content of the interaction 102 is being captured on film. An officer who uses a personal audio-visual recording device 103 is considered to have given his or her consent to being recorded. Within two (2) 104 months of its formation, the Committee shall draft the statement of notification to be 105 used by officers in each jurisdiction within the state. 106

(3) If an individual does not want his or her interaction with an officer captured on a 107 personal audio-video recording device, and the individual audibly denies his or her 108 consent to be recorded using the personal audio-video recording device, the officer or 109 officers interacting with the individual shall turn off their personal audio-video 110 recording device after having provided the reason for turning-off the person audio-video 111 recording device in accordance with Section 3(d)(2)(v). 112

(4) An officer will not be required to obtain a warrant to record an interaction with 113 individual who has given his or her consent to be recorded. 114

(c) Applicability to Massachusetts’ public records statute 115

(1) All audio-visual recordings that are captured during an interaction between a 116 individual or individuals and an officer or officers are exempt from public disclosure 117 under 4 MGL 7(26)(a) and shall be kept confidential absent a court order. 118

(2) This exception does not apply to individuals filmed in a police interaction, and their 119 legal representatives shall have the right to inspect and copy such recordings. 120

(d) Minimum Core Standards. 121

(1) All personal audio-video recording devices in use in this State must meet the 122 following standards: 123

(i) Picture Quality/Resolution. The resolution should be at least 640 x 480 pixels. 124

(ii) Frame Rate. The frame rate should be at least 25 frames per second. 125

(iii) Battery Runtime. The camera should be equipped with a battery that permits 126 the device to record continuously for at least 3 hours. All officers should also be 127

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equipped with a spare battery and/or a means of recharging the camera while on 128 duty. 129

(iv) Camera Focal Width. The camera must employ a wide point of view. 130

(v) Memory Specifications. At the lowest quality setting, the camera must permit at 131 least 3 hours of recording. 132

(vi) Night Visibility. The camera should have a low lux rating and/or an IR 133 illuminator for recording targets in low light. 134

Decisions as to which model or models of audio-video device to employ, and/or what 135 features in excess of these Minimum Core Standards said devices are to have, rest with 136 individual law enforcement entities. 137

(2) All programs within law enforcement entities governing or establishing rules, 138 regulations, or procedures with regard to the use of personal audio-video recording 139 devices must meet the following standards: 140

(i) Cameras must be deployed at the beginning of an interaction if police officers are 141 engaged in the following: 142

(A) Primary response (patrol in vehicle or during bicycle or motorcycle patrol) 143

(B) Self-initiated public contacts/foot patrol 144

(C) Emergency Response 145

(D) Vehicle or Site Searches 146

(E) SWAT 147

(F) Police officers engaged in taking individuals into custody 148

(G) Traffic stops 149

(H) Suspicious vehicle stops 150

(I) Suspicious person stops 151

(J) Motor-vehicle accident scenes 152

(K) During all interrogations of suspected criminals or persons of interest 153

(L) While in the process of an arrest 154

(M) Vehicle pursuits 155

(N) Crimes in progress 156

(O) When ordered to do by a supervisor, and 157

(P) Any other instance of police interaction with individuals where probable 158 cause exists that a crime is being planned or has been committed, as articulated 159 in the personal audio-video recording device policy of the law enforcement 160 entity. 161

(ii) Within the policy of the law enforcement entity, police officers may be given 162 discretion to not record in instances: 163

(A) Of sensitive crimes including rape and sexual assault; 164

(B) When an individual is fully unclothed; 165

(C) To protect the identity of an officer in an undercover capacity; and 166

(D) To protect the identity of a confidential informant. 167

Law enforcement entities shall adopt policies governing the recording of domestic violence, 168 rape and sexual assault incidents, and incidents where individuals are partially or fully 169 unclothed. 170

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(iii) Training – Personal audio-video recording device training must be provided for 171 all Police Officers, Supervisors, Record Management/Evidence personnel, and all 172 other personnel who may use or otherwise be involved with police-used personal 173 audio-video recording devices. 174

(iv) Compliance: 175

(A) Malfunctions – Law enforcement entities shall set a policy regarding 176 malfunctions that shall ensure as little interruption in recording as possible. The 177 policy shall require that police officers whose personal audio-video recording 178 device fails to record shall report the malfunction to the supervisor immediately 179 at the time the device has malfunctioned. 180

(B) Upload – Law enforcement entities shall set a policy requiring that police 181 officers shall upload the data from their personal audio-video recording devices 182 each working day within two hours at the end of the officer’s shift. 183

(C) Classification – Law enforcement entities shall apply already existing policies 184 regarding traditional evidence to evidence derived from the use of personal 185 audio-video recording devices. Law enforcement entities shall require that the 186 use of the personal audio-video recording device must be included in all incident 187 reports. 188

(D) Incident Report - Law enforcement entities shall apply already existing 189 policies regarding documentation of individuals’ interactions with police and 190 additional policies as the department sees fit. An officer shall note the following 191 in his/her report: Whether audio or video evidence was gathered relating to the 192 events described in the report; Any malfunction occurring during the situation 193 that is the subject of the report; and any instances of deactivation as required by 194 section (v) below. 195

(v) Deactivation - Before a personal audio-video recording device has been turned off 196 in an instance where policy and statute require the device to record, the reason for 197 not using it must be articulated verbally on camera. If the officer is unable to 198 verbally articulate his/her reason, then the officer shall file a written report 199 expressing that reason for the off switch within two hours at the end of the officer’s 200 shift when the incident occurred or included within the written incident report 201 regularly filed describing an interaction with an individual. This verbal or written 202 articulation shall be reviewed by both the supervising officer and the Committee or 203 its designee. 204

(vi) Internal audit – Policies shall include the requirement of periodic, random 205 monitoring of video footage generated by personal audio-video recording devices by 206 each agency’s internal audit unit. 207

(vii) Disciplinary Measures – Law enforcement entities shall adopt policies that shall 208 include, but not be limited to, imposing disciplinary measures for: 209

(A) failure to wear the personal audio-video recording device while on duty; 210

(B) failure to properly maintain the personal audio-video recording device 211 during a shift; 212

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(C) failure to keep the personal audio-video recording device on during an 213 interaction with an individual in accordance with this statute; 214

(D) failure to produce written or verbal communication for not turning on their 215 personal audio-video recording device or turning the personal audio-video 216 recording device off during an interaction with an individual as required by 217 the incident report requirement of this statute; and 218

(E) other breaches of department policies as enumerated within the department 219 policies. 220

(3) All programs within law enforcement entities governing or establishing rules, 221 regulations, or procedures with regard to the data storage of video and audio 222 recordings derived from the use of personal audio-video recording devices must 223 meet the following standards: 224

(i) All rules, regulations, procedures, or policies respecting the storage of or access 225 to data obtained through use of personal audio-video recording devices should be 226 made available in written form to all officers and staff within each law enforcement 227 entity. 228

(ii) Policies should require data to be downloaded from the personal audio-video 229 recording device by the end of the shift in which the camera was used, and 230 audio/video recordings should be appropriately tagged and stored according to the 231 type of event captured. 232

(iii) Policies should clearly require an officer’s supervisor to take physical custody of 233 the camera and assume responsibility for downloading the data contained therein in 234 cases of officer-involved shootings, in-custody deaths, or other incidents involving 235 the officer that result in a person’s bodily harm or death. 236

(iv) Policies should clearly state where personal audio-video recording device videos 237 are to be stored. 238

(v) Policies should specifically require the retention of the recorded data in 239 compliance with all relevant laws and adequately preserve evidentiary chain of 240 custody. 241

(vi) Policies should require the deletion of the recorded data after thirty (30) 242 calendar days if civil contact is made but no enforcement action is taken or 243 complaint has been filed. 244

(vii) Policies should include specific measures to prevent data tampering, deleting, 245 and copying. 246

(viii) Policies should clearly describe the circumstances in which supervisors will be 247 authorized to review an officer’s footage from the personal audio-video recording 248 device. 249

(ix) Policies should include specific measures for preventing unauthorized access or 250 release of recorded data. 251

(x) Policies should specifically account for and enumerate those situations in which 252 data might be made available to other departments for evidentiary purposes. 253

(xi) Policies shall include clear and consistent protocols for releasing recorded data: 254

(A) externally to the public and the news media; 255

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(B) for easy accessibility to lawyers and defendants; 256

(C) for easy accessibility to citizen review boards. 257

(xii) Each department’s policy must be in compliance with the disclosure of public 258 records as defined by 4 MGL §7(26)(a), and must be promulgated within three (3) 259 months of the enactment of this statute.