Having the right to see police-civilian encounters depends on law made by state and local governments. Access to police video depends on public policy decisions determining what can be recorded, what can be shown and what can be legally withheld from the public.
One of the critical areas of policymaking concerns the use of body-mounted cameras worn by police officers. Last year, the Open Government Coalition of Washington, D.C., published a comprehensive collection of research produced by Ropes and Gray on bodycam legislation in cities and states that summarizes the scope of how the issue is being addressed across the country. We decided to update that research to include the most recent legislative events, using the Open States API to track the progress and timing of those bills. We added some additional analysis based on the state legislative data we incorporate into the Open States API, such as information on bill sponsors and votes.
Most bodycam bills contain four overarching elements: collection and retention of footage, applicability of freedom of information laws and related police dashcam footage rules. Since the Ropes and Gray research was published in June 2015, 10 of the identified bills have been signed into law. Most of the nearly 40 remaining bills are either mired in legislative impasse or were defeated.
Bodycam bills: Undermining transparency?
Bills that had initial successes in state legislative cycles may actually have hindered efforts to increase police accountability by limiting the public’s right to access bodycam video. For example, California’s SB 175 made it as far as a second vote before it was turned back by Assembly Democrats in August of last year after passing through the state Senate unopposed. The bill, introduced by a Republican legislator, would have given California police departments wide discretion in crafting policies to govern body-worn cameras — a provision many state politicians decried as being antithetical to transparency.
Other bills, like Washington’s HB 1917, sparked controversy over their creation of vast exemptions to the Public Records Act regarding sound and video recordings. The bill only passed the Judiciary Committee after a number of amendments were attached to broaden the limit of those exemptions. Similarly, in Kansas, a substitute version of SB 18 — which passed the state Senate — would have exempted all recordings made by a law enforcement body camera or vehicle camera as from the Kansas Open Records Act. That bill eventually died.
Common elements of bills that became laws
One form of police body camera law that continued to develop over the past year is the creation of state commissions to study their use. Both Maryland (HB 533) and Arizona (SB 1300) created authorized commissions to investigate the policy implications of bodycams. In 2015, five states had created similar study commissions.
Other states established specific policies for police video recordings, including rules about how and when police should be required to record their interactions with individuals in the field, and how the resulting records should be maintained. Many of these more detailed bills, though, don’t go so far as requiring that police wear bodycams. Rather, they aim to establish rules and retention standards for bodycam data in the event that a department chooses to equip officers with them. Retention requirements considered by states ranged from as little as 15 days to as long as two years or more in some cases. For example, Texas’ SB 158 specifies that recordings must be preserved for a minimum of 90 days, and, if a recorded event gives rise to criminal or administrative investigation, must be kept until its resolution.
Like Oklahoma’s HB 1037, Illinois’ SB 1304 lays out rules for when recordings are flagged and retained for the public for two years. Oregon’s HB 2571 requires that officers equipped with bodycams begin recording from commencement of probable cause or reasonable suspicion and continue until the completion of law enforcement actions, although exemptions, as in many pieces of similar legislation, remain a sticking point for public access.
Two Nevada bills, SB 111 and AB 162, are among the most progressive in terms of authorizing and even funding bodycams for police officers at the state level. In fact, SB 111 would require all police who routinely interact with the public to wear a body camera while on duty.
Bodycam bills and party lines
Some of the bills that made it through state legislatures were backed by bipartisan support. Bills in Texas, Nevada and Oregon shared both Democratic and Republican primary sponsors.
Overall, though, the majority of bills cited by the D.C. Open Government Coalition were sponsored by Democratic legislators. Several bills were sponsored by legislative committees, making their political origins difficult to identify.