Hawaii-2017-HB1350-Introduced

SECTION 1. The legislature finds that an increasing number of states are addressing the issue of law enforcement agencies' use of body-worn video cameras and vehicle cameras as a means to protect civilians and law enforcement officers. A body-worn video camera worn by a law enforcement officer acts as a third-party, independent witness in disputes by clarifying testimony obtained in the field. Vehicle cameras are video cameras that are typically mounted on a vehicle's dashboard.

The legislature further finds that people who are aware that they are being videotaped are more inclined to alter their behavior, as they know that they will likely be held accountable for their actions. In light of the recent incidents involving law enforcement officers and the alleged use of unnecessary force, body-worn video cameras and vehicle cameras can provide law enforcement officers and civilians the security of knowing that a law enforcement officer's or civilian's statements about an incident may be corroborated by the video or audio recording obtained through the body-worn video camera or vehicle camera.

Law enforcement agencies in this country spend approximately $2,000,000,000 annually investigating complaints against law enforcement officers. The use of body-worn video cameras and vehicle cameras may reduce complaints against law enforcement officers and allow complaints to be resolved more quickly, thus freeing up valuable resources and reducing financial losses.

The legislature also finds that the use of body-worn video cameras and vehicle cameras can assist law enforcement agencies with training, assessment, and disciplinary decisions.

Accordingly, the purpose of this Act is to promote transparency, accountability, and protection for law enforcement officers and civilians by:

(1) Establishing requirements for the use of body-worn cameras and vehicle cameras; and

(2) Appropriating funds to each county for the purchase of body-worn cameras and vehicle cameras.

SECTION 2. Chapter 52D, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . law enforcement cameras

§52D-A Definitions. As used in this part:

"Body-worn camera" means a recording device that is:

(1) Capable of recording video and audio or transmitting video and audio to be recorded remotely; and

(2) Worn on the person of a law enforcement officer, and shall include being attached to the law enforcement officer's clothing or worn as glasses.

"Subject of the video footage" means any law enforcement officer or any suspect, victim, detainee, person engaged in a conversation, injured party, or other similarly situated person who appears on a body camera recording, and shall not include individuals who only incidentally appear on a recording.

"Vehicle camera" means a recording device that is:

(1) Capable of recording video or audio or transmitting video or audio to be recorded remotely; and

(2) Mounted in or on a law enforcement vehicle.

§52D-B Use of body-worn cameras for law enforcement officers. (a) While on duty, law enforcement officers shall wear and use body-worn cameras and vehicle cameras only in accordance with this part. Body-worn cameras shall be worn in a location and manner that maximizes the camera's ability to capture video footage of the law enforcement officer's activities.

(b) Except as provided in subsection (d), both the audio and video recording functions of the body-worn camera shall be activated:

(1) Whenever a law enforcement officer responds to a call for service; and

(2) At the initiation of any law enforcement or investigative encounter between a law enforcement officer and a member of the public;

provided that when an immediate threat to the law enforcement officer's life or safety makes activating the camera impossible or dangerous, the law enforcement officer shall activate the camera at the first reasonable opportunity to do so. The body-worn camera shall not be deactivated until the call for service or encounter has fully concluded and the law enforcement officer leaves the scene.

(c) A law enforcement officer who is wearing a body-worn camera shall notify the subjects of the video footage that the subjects are being recorded by a body-worn camera as close to the inception of the encounter as is reasonably possible.

(d) Notwithstanding the requirements of subsection (b):

(1) Prior to entering a private residence without a warrant or in non-exigent circumstances, a law enforcement officer shall ask the occupant if the occupant wants the law enforcement officer to discontinue use of the law enforcement officer's body-worn camera. If the occupant responds affirmatively, the law enforcement 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 apparent crime victim if the apparent crime victim wants the law enforcement officer to discontinue use of the law enforcement officer's body-worn camera. If the apparent crime victim responds affirmatively, the law enforcement 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 if the person wants the law enforcement officer to discontinue use of the body-worn camera. If the person responds affirmatively, the law enforcement officer shall immediately discontinue use of the body-worn camera.

(e) All law enforcement officers' offers to discontinue the use of a body-worn camera made pursuant to subsection (d), and the responses thereto, shall be recorded by the body-worn camera prior to discontinuation of use of the body-worn camera.

§52D-C Prohibited acts. (a) No police officer on duty shall operate a body-worn camera or vehicle camera that is not issued and maintained by the applicable county police department.

(b) No police officer on duty shall use a body-worn camera:

(1) Surreptitiously;

(2) To gather intelligence information for the exercise of a privilege protected by the First Amendment of the Constitution of the United States;

(3) To record activity that is unrelated to a response to a call for service or unrelated to a law enforcement or investigative encounter between a law enforcement officer and a member of the public; or

(4) On the grounds of any public, private, or parochial elementary or secondary school, except when a law enforcement officer is responding to a call for service or during an enforcement encounter.

(c) No person shall tamper with, delete, or make an unauthorized copy of data obtained through the use of a body-worn camera or vehicle camera under this part.

(d) No person shall release a recording created with a body-worn camera under this part unless the person first obtains the permission of the applicable county police department.

§52D-D Training. (a) No law enforcement officer shall use a body-worn camera or vehicle camera without first being trained by the applicable county police department on the proper use of the body-worn camera or vehicle camera.

(b) No law enforcement personnel shall come into contact with data obtained from the use of a body-worn camera or vehicle camera without first being trained by the applicable county police department on the proper handling of the data.

(c) The department of the attorney general shall develop or approve a curriculum for training programs under this section.

§52D-E Body-worn camera video footage; retention and deletion. (a) Body-worn camera video footage shall be retained by the agency that employs the law enforcement officer whose camera captured the video footage, or an authorized agent thereof, for one year for non-criminal cases from the date it was recorded. Video footage for criminal cases shall be retained for the period of the applicable criminal statute of limitations. After expiration of this applicable period, the video footage shall be permanently deleted.

(b) Notwithstanding the retention and deletion requirements in subsection (a):

(1) Body-worn camera video footage shall be automatically retained for no less than three years from the date it was recorded if the video footage captures images involving:

(A) Any use of force;

(B) Events leading up to and including an arrest for a felony-level offense, or events that constitute a felony-level offense; or

(2) Body-worn camera video footage shall be retained for no less than three years from the date it was recorded if the longer retention period is 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) Any 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 individual 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 of the video footage's next of kin or legally authorized designee.

Any individual who is a subject of the video footage, parent or legal guardian of a minor who is a subject of the video footage, or deceased subject's next of kin or legally authorized designee shall be permitted to review the relevant video footage prior to submitting a request pursuant to subparagraph (E), (F), or (G); and

(3) No body-worn camera video footage documenting an incident that involves the use of deadly force by a law enforcement officer or that is otherwise related to an administrative or criminal investigation of a law enforcement officer shall be deleted or destroyed without court order.

(1) Video footage not subject to a minimum three-year retention period pursuant to subsection (b);

(2) Video footage that is subject to a minimum three-year retention period solely and exclusively pursuant to subsection (b)(1)(C), if the subject of the video footage making the complaint requests the video footage not be made available to the public;

(3) Video footage that is subject to a minimum three-year retention period solely and exclusively pursuant to subsection (b)(2)(A), (B), (C), or (D); and

(4) Video footage that is subject to a minimum three-year retention period solely and exclusively pursuant to subsection (b)(2)(E), (F), or (G), if the person making the request requests the video footage not be made available to the public.

§52D-F Video footage; prohibitions on use. (a) No law enforcement officer shall review or receive an accounting of any body-worn camera video footage that is subject to an automatic minimum three-year retention period pursuant to section 52-E (b)(1) prior to completing any required initial reports, statements, and interviews regarding the recorded event.

(b) Video footage not subject to a minimum three-year retention period shall not be viewed by any immediate supervisor of a law enforcement officer whose body-worn camera recorded the video footage without a specific allegation of misconduct, nor shall the video footage be subject to automated analysis or analytics of any kind. Each law enforcement agency may set policies for random auditing by the agency's respective internal affairs section.

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

§52D-G Violation of recording or retention requirements. (a) If any law enforcement officer, employee, or agent fails to adhere to the recording or retention requirements in section 52D-E or intentionally interferes with a body-worn camera's ability to accurately capture video footage:

(1) Appropriate disciplinary action shall be taken against the individual law enforcement officer, employee, or agent;

(2) A rebuttable evidentiary presumption shall be adopted in favor of criminal defendants who reasonably assert that exculpatory evidence was destroyed or not captured; and

(3) A rebuttable evidentiary presumption shall be adopted on behalf of civil plaintiffs who reasonably assert that evidence supporting their claim was destroyed or not captured in a civil suit against the State, a county, a state or county agency, or a law enforcement officer for damages based on officer misconduct.

(b) The disciplinary action requirement and rebuttable presumptions in subsection (a) may be overcome by contrary evidence or proof of exigent circumstances that made compliance impossible."

SECTION 3. Chapter 52D, Hawaii Revised Statutes, is amended by designating sections 52D-1 to 52D-16 as "Part I. General Provisions".

SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2017-2018 for a grant in aid to each county for the purchase of body-worn video cameras and law enforcement vehicle cameras to be used by each county police department to be allocated as follows:

$ to the city and county of Honolulu;

$ to the county of Maui;

$ to the county of Hawaii; and

$ to the county of Kauai;

provided that no funds appropriated to a county under this Act shall be expended unless matched dollar-for-dollar by the county.

The sums appropriated shall be expended by each county for the purposes of this Act.

SECTION 5. Each county police department that receives a grant-in-aid pursuant to section 4 of this Act, shall submit to the legislature reports no later than twenty days prior to the convening of the regular sessions of 2018 through 2022, which shall include the costs of implementing and maintaining the body-worn camera and vehicle camera program and the equipment, data storage, and other costs of the program.

SECTION 6. This Act shall take effect on January 1, 2018.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1350
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII