HOUSE OF REPRESENTATIVES TWENTY-EIGHTH LEGISLATURE, 2016 H.B. NO. A BILL FOR AN ACT RELATING TO BODY CAMERAS FOR LAW ENFORCEMENT OFFICERS. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows: BODY CAMERAS FOR LAW ENFORCEMENT OFFICERS -1 Definitions. As used in this chapter, unless the context requires otherwise: "Law enforcement officer" means any public servant, whether employed by the State or a county, vested by law with a duty to or to maintain public order, to make arrests for offenses, enforce the criminal laws, whether the duty extends to all offenses or is limited to a specific class of offenses. "Subject of the video footage" means any law enforcement officer or any suspect, victim, detainee, conversant, 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. HB HMS 2015-4136-1 Page2 H.B. NO. -2 Use of body cameras for law enforcement officers. While on duty, law enforcement officers shall wear and use body cameras only in accordance with this chapter. Body cameras shall be worn in a location and manner that maximizes the camera's ability to capture video footage of the officer's activities. Except as provided in subsection both the audio and video recording functions of the body 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 officer's life or safety makes activating the camera impossible or dangerous, the officer shall activate the camera at the first reasonable opportunity to do so. The body camera shall not be deactivated until the call for service or encounter has fully concluded and the law enforcement officer leaves the scene. HB HMS 2015~4136-l PageS H.B. NO. A law enforcement officer who is wearing a body camera shall notify the subjects of the video footage that the subjects are being recorded by a body camera as close to the inception of the encounter as is reasonably possible. (2) Notwithstanding the requirements of subsection 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 officer to discontinue use of the officer's body camera. If the occupant responds affirmatively, the law enforcement officer shall immediately discontinue use of the body camera; a law When interacting with an apparent crime victim, enforcement officer shall, as soon as practicable, ask the apparent crime victim if the apparent crime victim wants the officer to discontinue use of the officer's body camera. If the apparent crime victim responds affirmatively, the law enforcement officer shall immediately discontinue use of the body camera; and When interacting with a person seeking to anonymously report a crime or assist in an ongoing law enforcement HB HMS 2015?4136?1 Page4 the use of a body camera made pursuant to subsection the responses thereto, H.B. NO. investigation, a law enforcement officer shall, as soon as practicable, ask the person seeking to remain anonymous if the person wants the officer to discontinue use of the officer's body camera. If the person responds affirmatively, the law enforcement officer shall immediately discontinue use of the body camera. All law enforcement officers' offers to discontinue and shall be recorded by the body camera prior to discontinuation of use of the body camera. (1) (2) (3) -3 Prohibitions. Body cameras shall not be used: Surreptitiously; To gather intelligence information based on First Amendment protected speech, associations, or religion; 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; or On the grounds of any public, private, or parochial elementary or secondary school, except when a law HB HMS 2015?4136?1 Pages H.B. NO. enforcement officer is responding to an imminent threat to life or health. -4 Body camera video footage; retention and deletion. Body camera video footage shall be retained by the agency that employs the law enforcement officer whose camera captured for six the video footage, or an authorized agent thereof, months from the date it was recorded. After expiration of this six?month period, the video footage shall be permanently deleted. Notwithstanding the retention and deletion requirements in subsection (1) Body 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 (C) An encounter about which a complaint has been registered by a subject of the video footage. HB HMS 2015-4136?1 PageB H.B. NO. (2) Body 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) (D) The law enforcement officer whose body camera recorded the video footage, if that officer reasonably asserts the video footage has evidentiary or exculpatory value; 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; Any superior officer of a law enforcement officer whose body 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; Any law enforcement officer, if the video footage is being retained solely and exclusively for police training purposes; Any individual who is a subject of the video footage; HB HMS 2015-4136?1 Page? HB. NO. (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). The following video footage shall be exempt from the public inspection requirements of chapter 92F: (1) Video footage not subject to a minimum three-year retention period pursuant to subsection Video footage that is subject to a minimum three?year retention period solely and exclusively pursuant to subsection if the subject of the video footage making the complaint requests the video footage not be made available to the public; HB HMS 2015-4136-1 PageB H.B. NO. (3) Video footage that is subject to a minimum three?year retention period solely and exclusively pursuant to subsection 0r and (4) Video footage that is subject to a minimum three?year retention period solely and exclusively pursuant to subsection or if the person making the request requests the video footage not be made available to the public. ?5 Video footage; prohibitions on use. No law enforcement officer shall review or receive an accounting of any body camera video footage that is subject to an automatic minimum three?year retention period pursuant to section ?4 prior to completing any required initial reports, statements, and interviews regarding the recorded event. 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 camera recorded the video footage without a specific allegation of misconduct, nor shall it be subject to automated analysis or analytics of any kind. HB HMS 2015-4136?1 Page9 H.B.I NO. Video footage shall not be divulged or used by any law enforcement agency for any commercial or other non?law enforcement purpose. Where a law enforcement agency authorizes a third? party to act as its agent in maintaining body camera footage, the agent shall not be permitted to independently access, view, or alter any video footage, except to delete videos as required by law or agency retention policies. ?6 Violation of recording or retention requirements. Should any law enforcement officer, employee, or agent fail to adhere to the recording or retention requirements contained in this chapter or intentionally interfere with a body camera's ability to accurately capture video footage: (1) Appropriate disciplinary action shall be taken against the individual 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 HMS 2015?4136?1 Page10 H.B. NO. 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. The disciplinary action requirement and rebuttable presumptions in subsection may be overcome by contrary evidence or proof of exigent circumstances that made compliance impossible. -7 Video footage; use or admissibility as evidence. Body camera video footage recorded in contravention of this chapter or any other applicable law shall be immediately destroyed and shall not be admissible as evidence in any criminal or civil legal or administrative proceeding. Video footage retained beyond six months from the date it was recorded solely and exclusively for police training purposes shall not be admissible as evidence in any criminal or civil legal or administrative proceeding. Nothing in this chapter shall be read to contravene any laws governing the maintenance and destruction of evidence in criminal investigations and prosecutions." HB HMS 2015-4136-1 . 10 Page? H.B. NO. SECTION 2. This Act shall take effect upon its approval. INTRODUCED BY H.B. NO. Report Title: Law Enforcement; Body Cameras Description: Regulates the use of body cameras by law enforcement officers and body camera video footage. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. HB HMS 2015?4136?1