OLR Bill Analysis
sSB 1109 (File 758, as amended by Senate "A" and "B")*
AN ACT CONCERNING EXCESSIVE USE OF FORCE.
This bill makes a number of changes regarding law enforcement training, procedures, equipment, use of force, hiring, and lawsuits.
Regarding training, procedures, and equipment, it:
1. requires police basic and review training programs conducted by the State Police, Police Officer Standards and Training Council (POST), and municipal police departments to include training on (a) using physical force; (b) using body-worn recording equipment and retaining the records it creates; and (c) cultural competency, sensitivity, and bias-free policing (§ 1);
2. creates new grants from the Office of Policy and Management (OPM) for municipal police departments to purchase body-worn equipment that records audio and video (body cameras);
3. requires the Department of Emergency Services and Public Protection (DESPP) and POST, by January 1, 2016, to jointly create a list of approved body cameras and digital data storage devices or services, specifies certain activities that officers cannot record with body cameras, and requires DESPP and POST to develop guidelines on equipment use and data retention; and
4. requires sworn officers of municipal police departments receiving certain OPM grants, the State Police, and public university police departments, beginning July 1, 2016, to use body cameras while interacting with the public in their law enforcement capacity.
Regarding use of force, it:
1. expands the circumstances when the Division of Criminal Justice must investigate a death involving a peace officer to include cases involving any use of physical force, not just deadly force;
2. requires, rather than allows, the chief state's attorney to appoint a prosecutor from a judicial district other than the one where the incident occurred or a special prosecutor to conduct those investigations; and
3. requires law enforcement units to record and maintain information about incidents in which a police officer discharges a firearm or uses physical force that is likely to cause serious physical injury or death.
Regarding hiring, it:
1. requires law enforcement units, by January 1, 2016, to develop and implement guidelines to recruit, retain, and promote minority police officers;
2. prohibits a law enforcement unit from hiring an officer who was previously dismissed from a unit for malfeasance or serious misconduct or resigned or retired during an investigation for such conduct; and
3. requires a law enforcement unit to inform another unit about an officer's dismissal, resignation, or retirement under the circumstances described above if it knows the officer is applying for a position as a police officer with the other unit.
Regarding lawsuits involving law enforcement, with some exceptions, it makes a peace officer's employer liable in a court or other proceeding if the officer interferes with someone taking a photo or digital still or video image of the officer or another officer performing his or her duties.
The bill also increases, from one year to two years, the maximum amount of time for which the Department of Administrative Services (DAS) can extend the effective period for a candidate list for state employment. (By law, candidate lists are effective for between three months and one year but may be extended by the DAS commissioner based on the state's needs) (§ 9)).
*Senate Amendment “A” requires the chief state's attorney, in use of force investigations, to appoint either a prosecutor from a judicial district other than one where the incident occurred or a special prosecutor; the original file required him to report a special prosecutor.
*Senate Amendment “B” requires police training on use of any physical force, not just deadly force, and bias-free policing; adds details on minority hiring efforts and guidelines; requires recording information about any police officer's use of force that is likely to cause serious injury or death, not just discharge of a firearm as in the original file, and specifies that reports are not required for firearm discharges in training or involving dispatching animals; applies the bill's prohibitions on hiring officers to cases of malfeasance or serious misconduct that raise questions about an officer's fitness to serve, rather than misconduct, and excludes cases where an officer is exonerated; and adds the provisions on body cameras, peace officers interfering with someone taking photos or video, and DAS candidate lists.
EFFECTIVE DATE: October 1, 2015 except the provisions on (1) police body camera use and DAS candidate lists are effective upon passage and (2) OPM grants are effective January 1, 2015.
§ 2 — MINORITY POLICE OFFICER HIRING
By January 1, 2016, the bill requires law enforcement units to develop and implement guidelines to recruit, retain, and promote minority police officers. Under the bill, a “minority” is an individual whose race is other than white or whose ethnicity is defined as Hispanic or Latino by the federal government for use by the U.S. Census Bureau. The bill applies to state, municipal, or other governmental entities whose primary function includes enforcing criminal or traffic laws; preserving public order; protecting life and property; or preventing, detecting, or investigating crime. It also applies to the Mashantucket Pequot and Mohegan tribes' police departments.
Under the bill, police officers include sworn members of organized local police departments, appointed constables who perform criminal law enforcement duties, special policemen appointed for state property or utility or transportation companies or to investigate public assistance fraud, and any member of a law enforcement unit who performs police duties.
The bill requires each unit's guidelines to (1) consider achieving the goal of racial and ethnic diversity through policies that ensure the unit tries to recruit, retain, and promote minority police officers. The bill requires units serving communities with a relatively high concentration of minority residents to make efforts to recruit, retain, and promote minority officers so that the unit's racial and ethnic diversity is representative of the community's. The efforts may include, among other things, community outreach and attracting young people from the community to law enforcement careers through:
1. police athletic leagues in which officers support young people through mentoring, sports, education, and positive relationships;
2. implementing explorer programs and cadet units; and
3. supporting public safety academies.
Efforts may also include policies that require filling a vacancy by hiring or promoting a minority candidate if his or her qualifications exceed or equal those of other candidates when ranked on a promotion or exam list.
§ 3 — USE OF FORCE INVESTIGATIONS
The bill expands when the Division of Criminal Justice must investigate a death involving a peace officer (see BACKGROUND). Currently, the division must investigate when a peace officer, in the performance of his or her duties, uses deadly physical force on someone and that person dies. “Deadly physical force” is physical force that can be reasonably expected to cause death or serious physical injury (CGS § 53a-3(5)).
The bill requires an investigation when the officer uses any type of physical force and death results.
The bill requires the chief state's attorney, for purposes of these investigations, to either designate a prosecutor from a judicial district other than the one where the incident occurred or appoint a special assistant state's attorney or special deputy assistant state's attorney. (These attorneys are temporarily appointed under a contract.) Under current law, the chief state's attorney has the option to appoint one of these individuals to conduct the investigation but if he does not, a prosecutor from the judicial district where the event occurs conducts the investigation.
Current division policy requires an investigation into any death determined to have been caused by a police officer's use of force, and the chief state's attorney must assign a state's attorney from a judicial district other than the one where the incident occurred to supervise the investigation and decide whether to pursue criminal charges.
As under current law, the investigation's report must include the incident's circumstances, a determination of whether the officer used force appropriately, and the action to be taken as a result of the incident.
§ 4 — RECORDS OF POLICE USE OF FIREARMS OR FORCE
The bill requires law enforcement units to record and maintain information about incidents in which a police officer (1) discharges a firearm except in training or when dispatching an animal or (2) uses physical force that is likely to cause serious physical injury or death to another person, including striking someone with a club, baton, or an open or closed hand; kicking; or using pepper spray or an electro shock weapon.
By law, a “serious physical injury” is one that creates a substantial risk of death or causes serious disfigurement, impairment of health, or loss or impairment of an organ's function (CGS § 53a-3(4)).
This provision applies to the same law enforcement units and officers as described above in the provisions on minority hiring.
§ 5 — HIRING AND OFFICER MISCONDUCT
The bill prohibits a law enforcement unit from hiring a police officer who was in previous employment with the unit or in another jurisdiction and (1) was dismissed for malfeasance or serious misconduct calling into question a person's fitness to serve as an officer or (2) resigned or retired during an investigation for such conduct.
It also requires a law enforcement unit to inform another unit about an officer's dismissal, resignation, or retirement under the circumstances described above if it knows the officer is applying for a position as a police officer with the other unit.
Under the bill:
1. “malfeasance” has its common meaning and
2. “serious misconduct” means an officer's improper or illegal actions in official duties that could cause a miscarriage of justice or discrimination, such as a felony conviction, fabricating evidence, repeated use of excessive force, accepting a bribe, or committing fraud.
These provisions do not apply if an officer is exonerated of each allegation of malfeasance or serious misconduct.
These provisions apply to the same law enforcement units and officers as described above in the provisions on minority hiring.
§§ 6 & 7 — BODY CAMERAS
The bill requires the DESPP commissioner and POST to jointly evaluate and approve a list of body camera models for police officers to wear and digital storage devices or services that law enforcement agencies can use to retain the data the cameras record. By January 1, 2016, they must make such list available to law enforcement agencies. They may add or remove items from the list as necessary.
Required Use by Officers
Beginning July 1, 2016, the bill requires use of body cameras by sworn members of:
1. the State Police,
2. UConn and state university system police, and
3. municipal police departments that receive OPM grants under the bill to (a) obtain enough body cameras in FY 17 to allow each sworn officer to have a device when interacting with the public in a law enforcement capacity or (b) obtain body cameras in FY 18.
Sworn members of municipal police departments (1) that receive an OPM grant for body cameras purchased between January 1, 2014 and June 30, 2016 and (2) do not subsequently purchase enough equipment for the entire department's use, which would qualify for an additional OPM grant, must use body cameras if the department provides them to the members. Sworn members of other municipal police departments may use body cameras as directed by their departments but must follow the bill's requirements.
Officers must use equipment on the DESPP-POST list but may use other models purchased by their enforcement agencies before January 1, 2016.
The bill requires each officer to wear the camera on their outer-most garment and above the midline of his or her torso when using the equipment. They must use it while interacting with the public in their law enforcement capacity.
The bill prohibits officers from using the equipment until they receive the training required by the bill on using the equipment and retaining the data they create. But officers using the equipment before October 1, 2015 may continue to use the equipment before receiving the training. Agencies must ensure that officers receive the training at least annually, including training on equipment care and maintenance.
Exceptions to Recording Requirement
The bill prohibits officers from intentionally recording, unless under an agreement between the agency and federal government:
1. communications with other law enforcement personnel unless within the performance of duties;
2. encounters with undercover officers or informants;
3. officers on break or engaged in personal activity;
4. people undergoing medical or psychological evaluations, procedures, or treatment;
5. people, other than a suspect, in a hospital or medical facility; or
6. in mental health facilities unless responding to a call involving a suspect in such a facility.
Records are not public records for purposes of disclosure under the Freedom of Information Act if they capture (1) any of the images described above; (2) a homicide, suicide, or accident victim; or (3) the scene of a known domestic violence or sexual abuse incident.
Ensuring Functioning Equipment
The bill requires officers to inform their supervisors as soon as practicable after learning that equipment is lost, damaged, or malfunctioning. The supervisor must ensure the equipment's inspection, repair, and replacement as necessary.
Officers must inspect and test equipment before each shift to verify proper functioning and notify their supervisors of problems.
By January 1, 2016, the bill requires DESPP and POST to jointly issue guidelines on using the equipment, retaining data, and safe and secure data storage methods. All agencies and their officers and employees with access to data must follow the guidelines. DESPP and POST may update and reissue the guidelines as necessary. They must submit the guidelines and any updates to the Judiciary and Public Safety and Security committees.
Officer Use and Access to Recording
The bill allows an officer to review a recording from a body camera to assist in preparing a report or in the performance of his or her duties. When giving a formal statement about the use of force or when the subject of a disciplinary investigation where a recording is part of the review, the officer must be able to review (1) the recording, together with his attorney or labor representative and (2) recordings from other body cameras capturing his or her image or voice during the incident.
The bill prohibits law enforcement agency employees from editing, erasing, copying, sharing, altering, or distributing any recording made by the equipment or its data without the agency's prior written approval.
The bill requires OPM, within available resources, to administer a grant program to reimburse municipalities for purchasing body cameras and digital storage devices or services on DESPP's list. Municipalities may apply for grants in a manner set by OPM.
The bill requires grants to:
1. reimburse up to 100% of the costs of a municipality that purchases during FY 17 enough equipment to allow each sworn officer to have a device when interacting with the public in a law enforcement capacity (for digital storage services, reimbursement is limited to the cost of services for up to one year);
2. reimburse, in an amount no greater than described above, the costs of municipal purchases from January 1, 2014 through June 30, 2016, with an additional amount up to 100% of the costs for new equipment purchases during FY 17 if enough equipment is purchased to allow each sworn officer to have a device when interacting with the public in a law enforcement capacity; and
3. reimburse up to 50% for municipal purchases in FY 18, if the municipality was not reimbursed under the other provisions (for services, reimbursement is based on the cost of services for up to one year).
§ 8 — OFFICERS INTERFERING WITH PHOTOGRAPHY
The bill makes a peace officer's employer liable in a court or other proceeding if the officer interferes with someone taking a photo or digital still or video image of the officer or another officer performing his or her duties. The employer is not liable if the officer had reasonable grounds to believe that he or she was interfering to:
1. lawfully enforce a state criminal law or municipal ordinance;
2. protect public safety;
3. preserve a crime scene's or investigation's integrity;
4. safeguard a person's privacy interests, including a crime victim's; or
5. lawfully enforce Judicial Branch court rules and policies on taking photos, video, and recording images in branch facilities.
The bill applies to peace officers except for federal government special agents and POST-certified members of the Mashantucket Pequot and Mohegan tribes' law enforcement units.
The council (1) trains, certifies, and establishes minimum qualifications for municipal police officers and others and (2) enforces professional standards for certifying and decertifying them.
By law, “peace officers” are state or local police officers, Division of Criminal Justice inspectors, state marshals exercising statutory authority, judicial marshals performing their duties, conservation officers or special conservation officers, constables who perform criminal law enforcement duties, appointed special policemen, adult probation officers, Department of Correction officials authorized to make arrests in a correctional institution or facility, investigators in the State Treasurer's Office, federal narcotics agents, and POST-certified members of the Mashantucket Pequot and Mohegan tribes' law enforcement units (CGS § 53a-3(9)).
Use of Force by Peace Officers and Other Officials
By law, peace officers, special policemen, POST-certified motor vehicle inspectors or authorized DOC or Board of Pardons and Paroles officials are justified in using physical force, when and to the extent they reasonably believe it necessary, to (1) make an arrest or prevent a custodial escape, unless they know that the arrest or custody is unauthorized, or (2) defend themselves or someone else from the use or imminent use of physical force while making or attempting to make an arrest or while preventing or attempting to prevent an escape (CGS § 53a-22(b)).
An officer, as described above, is justified in using deadly physical force when he or she reasonably believes it is necessary to (1) defend the officer or someone else from the use or imminent use of deadly physical force and (2) arrest or prevent the escape from custody of someone whom he or she reasonably believes committed or attempted to commit a felony involving the infliction or threatened infliction of serious physical injury, and if, where feasible, the officer warned of the intent to use deadly physical force (CGS § 53a-22(c)).
The Senate referred the bill (File 644) to the Public Safety and Security Committee, which reported a substitute bill (File 758) that eliminated provisions requiring law enforcement officers to wear body cameras and disclose the information they record under the Freedom of Information Act. On May 7, the Senate adopted Senate “A” and referred the bill to the Appropriations Committee, which favorably reported it. On June 2, the Senate passed the bill as amended by Senate “A” and “B.”
sSB 770, File 436 reported favorably by the Public Safety and Security Committee, requires DESPP to conduct a pilot program on police body-worn video equipment.
Public Safety and Security Committee
Joint Favorable Substitute