Senate Bill 2490

AN ACT TO PROVIDE PROCEDURES FOR USE OF BODY-WORN CAMERAS BY LAW ENFORCEMENT OFFICERS; TO DESCRIBE HOW VIDEO FROM THE CAMERAS MUST BE RETAINED BY LAW ENFORCEMENT AGENCIES; TO AUTHORIZE WHO MAY OBTAIN A COPY OF A RECORDING; TO PROVIDE REMEDIES FOR VIOLATIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and referred to as the Community Policing and Transparency Act of 2016.

SECTION 2. The following words shall have the following meanings, unless the content clearly indicates otherwise:

(a) "Law enforcement officer" has the meaning given in Section 45-6-3.

(b) "Body-worn camera" means a device that is worn by a law enforcement officer that electronically records audio and video of the officer's activities.

SECTION 3. The following are the procedures for use of body-worn cameras by a law enforcement officer:

(a) Only law enforcement officers with the authority to conduct searches and make arrests shall be permitted to wear a body-worn camera. Body-worn cameras must be worn in a location and manner that maximizes the camera's ability to capture video footage of the officer's activities.

(b) A law enforcement officer must activate both the video and audio recording function of the camera whenever the law enforcement officer is responding to a call for service, at the initiation of any other law enforcement officer or agency, or during an investigative encounter between a law enforcement officer and a member of the public unless an immediate threat to the officer's life or safety makes activating the camera impossible or dangerous, in which case the officer must activate the camera at the first reasonable opportunity to do so.

(c) The body-worn camera shall not be deactivated until the encounter has fully concluded and the law enforcement officer leaves the scene or the contact moves into an area exempted under this section.

(d) A law enforcement officer may temporarily stop recording under the following limited circumstances:

(i) Encounters or communications with other law enforcement personnel, unless recording is permitted by a court order or is authorized as part of an administrative or criminal investigation;

(ii) Encounters or communications with undercover officers or confidential informants;

(iii) Strip searches;

(iv) When on break or otherwise engaged in personal activities; or

(v) In any location in which an officer has a reasonable expectation of privacy, such as a restroom or locker room.

(e) A law enforcement officer who is wearing a body-worn camera must notify all individuals who are being recorded by a body-worn camera as close to the inception of the encounter as is reasonably possible.

(f) Before entering a private residence without a warrant or in nonexigent circumstances, a law enforcement officer must ask the occupant if the occupant wants the officer to discontinue use of the officer's body-worn camera. If the occupant responds affirmatively, the law enforcement officer must immediately discontinue use of the body-worn camera.

(g) Every law enforcement officer's offer to discontinue the use of a body-worn camera, and the responses thereto, must be recorded by the body-worn camera before discontinuing use of the body-worn camera.

(h) Body-worn cameras shall not be used surreptitiously.

(i) Law enforcement officers shall not activate a body-worn camera while on the grounds of any public, private, or parochial elementary or secondary school, except when responding to an imminent threat to life or health.

(j) All recorded files shall be securely downloaded by the officer operating the body-worn camera, no later than the end of each shift. In circumstances resulting in a person's bodily harm or death, the operating officers' supervisor must immediately take custody of the camera and assume responsibility for downloading the data. Each file must contain information related to the type of incident, the date, the body-worn camera identifier, and the assigned officer.

(k) Body-worn camera recordings are not a replacement for written reports. Officers may not view a body-worn camera recording of an incident before writing a relevant report. Neither officers nor civilians are permitted to view recordings at the scene.

SECTION 4. Body-worn cameras shall not be used to gather intelligence information that would constitute First Amendment protected speech, associations or religion, or to record activity that is unrelated to a response for service of law enforcement or investigative encounter between a law enforcement officer and a member of the public.

SECTION 5. (1) A law enforcement agency must retain video and audio recorded by a body-worn camera for six (6) months from the date it was recorded, after which time the footage shall be permanently deleted unless a longer retention time applies.

(2) A law enforcement agency shall automatically retain video and audio recorded by a body-worn camera for no less than three (3) years if any of the following apply:

(a) (i) The recording is of any incident involving the use of force.

(ii) The recording is of an incident or event that leads to the detention or arrest of an individual.

(iii) The recording is of an encounter which is the subject of a formal or informal complaint.

(b) A longer retention period is voluntarily requested by:

(i) 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;

(ii) A law enforcement officer who is a subject of the video footage, if the officer reasonably asserts the video footage has evidentiary or exculpatory value;

(iii) A 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 the superior officer reasonably asserts the video footage has evidentiary or exculpatory value;

(iv) Any law enforcement officer, if the video footage is being retained solely and exclusively for police training purposes;

(v) Any member of the public who is a subject of the video footage;

(vi) A parent or legal guardian of a minor who is a subject of the video footage; or

(vii) A deceased subject's next of kin or legally authorized designee.

(3) Any member of the public who is a subject of video footage, the parent or legal guardian of a minor who is a subject of the video footage, or a deceased subject's next of kin or legally authorized designee shall be permitted to review that specific video footage in order to determine whether the person will voluntarily request that the footage be subject to the three (3) year retention period.

SECTION 6. (l) The following video footage is exempt from the Mississippi Public Records Act:

(a) Video footage not subject to a minimum three (3) year retention period;

(b) Video footage that is subject to a minimum three-year retention period solely and exclusively pursuant to:

(i) Section 5(2)(a) of this act, where the subject of the video footage making the complaint requests the video footage not be made available to the public;

(ii) Section 5(2)(b)(i), 5(2)(b)(ii), 5(2)(b)(iii), or 5(2)(b)(iv) of this act; and

(iv) Section 5(2)(b)(v), 5(2)(b)(vi) or 5(2)(b)(vii) of this act, where the person making the voluntary request requests the video footage not be made available to the public.

SECTION 7. (1) If a law enforcement officer, employee or agent fails to adhere to the recording or retention requirements of this act, or intentionally interferes with a body-worn camera's ability to accurately capture video footage:

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

(b) There is a rebuttable evidentiary presumption in favor of criminal defendants who reasonably assert that exculpatory evidence was destroyed or not captured; and

(c) There is a rebuttable evidentiary presumption on behalf of a civil plaintiff suing the government, a law enforcement agency, or law enforcement officers for damages based on police misconduct who reasonably assert that evidence supporting the plaintiff's claim was destroyed or not captured.

(2) A law enforcement agency must post on the law enforcement agency's public website its policies relating to the retention of recordings made by body-worn cameras, procedures for requesting retention of a recording, and procedures for requesting copies of a recording.

SECTION 8. (1) All data, images, video and metadata captured, recorded, or otherwise produced by the equipment shall be under the exclusive control of the law enforcement agency.

(2) Officers shall not edit, alter, erase, duplicate, copy, share, or otherwise distribute body-worn camera recordings in any manner without the approval of the chief officer of the law enforcement agency.

(3) Access to body-worn camera files is to be audited to ensure that only authorized users are accessing the data for legitimate and authorized purposes. The agency must keep records of who has accessed recorded data, when, and for what purpose.

SECTION 9. (1) Annual training is required for officers assigned to wear cameras, supervisors whose officers wear cameras, records and evidence management personnel, training personnel, and Internal Affairs officers. Personnel must receive all mandated training before involvement with any body-worn camera.

(2) Required training must include practices and protocols covered by this act; an overview of relevant state laws governing consent, evidence, privacy, and public disclosure; procedures for operating the equipment safely and effectively; scenario-based exercises that replicate situations an officer might encounter in the field; procedures for downloading and tagging recorded data; procedures for accessing and reviewing recorded data for personnel authorized to access the data; procedures for preparing and presenting digital evidence for court; and procedures for documenting and reporting any malfunctioning device or supporting system.

SECTION 10. This act shall take effect and be in force from and after July 1, 2016.