Almost every day, there is something in the news about body-worn cameras and policing. It is new technology that departments and communities are promoting to assist with transparency, accountability and building communities of trust.
While the debate on how and when to use body cameras continues in many governing halls, police headquarters and private homes across the country, most departments and many of the nation’s law enforcement thought leaders support using body cameras as a key component of a standard-issue equipment for officers.
This is squarely in keeping with the tenets and pillars of the Final Report of the President’s Task Force on 21st Century Policing Report – which promotes using law enforcement technology that is aligned with the wishes of the communities police departments serve as well as with national best practices.
Some Consider Illinois’ New Law the Most Comprehensive in the U.S.
Earlier this year, Illinois Governor Bruce Rauner signed the Law Enforcement Officer-Worn Camera Act (“the Act”) which sets statewide standards in Illinois for the use of the officer worn body cameras. Local law makers have touted this legislation as the most comprehensive body-worn camera law in the country.
The Act does not mandate the use of body-worn cameras, but it does provide for a set of rules if a jurisdiction chooses to implement a body-worn camera program. The act outlines requirements for the hardware specifications, operation of the cameras, and retention, use, and dissemination of the data. Additionally, the Illinois Law Enforcement Training and Standards Board (“ILETSB”) is authorized to develop procedures for issues not specifically addressed.
Storage: Two Requirements
The Act stipulates only two requirements for storage: the camera must be able (1) to record for 10 hours (though how the 10 hours should be calculated is not defined), and (2) include a 30 second pre-event record. The 30 second pre-event record simply means that the camera has to be capable of saving an additional 30 seconds of data prior to when an officer physically presses the record button.
Camera Operation: Defined Procedures
While the ILETSB is officially permitted to develop procedures not addressed by the Act, the Act does explicitly address some critical operational issues:
- The camera must remain on at all times while in performance of law enforcement responsibilities. Nevertheless, there is an exception if there is an especially demanding circumstance and it is not practicable to turn the camera on.
- The camera must be turned off if a victim requests the officer do so or if the officer is interacting with a confidential informant. If the officer believes that a victim might also be an offender, the officer must leave the camera on and indicate so on the recording if possible to do so.
- The officer must provide notice of recording where the subject has a reasonable expectation of privacy.
Data Retention: When to Destroy or Preserve
Unless body-worn camera data is flagged, the data will be destroyed after 90 days, however, a video will be retained for two years if it is flagged. Additionally, if a video is being used in a criminal, civil, or administrative proceeding, it will be preserved throughout the proceeding. The statute specifically states that a video is to be flagged for the following:
- A formal or informal complaint is filed or if the officer is being investigated
- Death or serious injury transpired to any person in the recording
- The encounter resulted in detention or arrest
- A weapon discharged or use of force resulted
- For determination of evidentiary value in a criminal prosecution by a supervisor, court, prosecutor, or defendant
Use and Dissemination: A Limited Scope
The recordings will only be used in connection with discipline of an officer or as evidence in a civil, criminal, or administrative proceeding. With respect to officer discipline, it will be limited to the occurrence of formal or informal misconduct, use of force, or possibility of a formal investigation.
The Act generally states that the camera data is exempt from disclosure pursuant to Freedom of Information Act requests, but there are a number of exceptions to this general rule. For example, if data has been flagged because of a formal or informal complaint, the encounter resulted in use of force or discharge of a weapon, death or serious injury ensued, or the encounter resulted in detention or arrest, then the data must be disclosed. If video is disclosed, then the department will be obligated to remove identification of any person who is not the officer or involved with the encounter.
The ILETSB will require annual reports which must include: (1) basic information about the program, (2) the number of cameras in use, (3) the existence of any technical issues, information on review process, and (4) detailed information about data utilized in any criminal or traffic proceeding.
The Act also allows individuals to record officers during performance of their duty. The officer does reserve the right to take action if there is an interference with his or her duties. Additionally, a program of grant funding will be provided to assist in the purchase of cameras and training of officers.
If you’re interested in this issue, feel free to share your perspective below – or email me at Marcia.Thompson@HillardHeintze.com