PA 15-4, June 2015 Special Session—HB 7103

Emergency Certification

AN ACT CONCERNING EXCESSIVE USE OF FORCE

SUMMARY: This act makes a number of changes in law enforcement agencies' (1) use of body cameras, (2) use-of-force investigations, (3) hiring practices, and (4) liability in certain lawsuits.

Beginning July 1, 2016, the act requires sworn officers of the State Police, public university police departments, and municipal police departments receiving certain state grants under the act to use body-worn recording equipment (body cameras) while interacting with the public in their law enforcement capacity. By January 1, 2016, the Department of Emergency Services and Public Protection (DESPP) and Police Officer Standards and Training Council (POST) (see BACKGROUND) must jointly create a list of minimal technical specifications for body cameras and digital data storage devices or services. The act prohibits officers from recording certain activities with body cameras, allows agencies to withhold certain images from disclosure to the public, and requires DESPP and POST to develop guidelines on equipment use and data retention.

The act expands reporting and investigation requirements when police use force by:

1. expanding the circumstances when the Division of Criminal Justice must investigate a death involving a peace officer (see BACKGROUND) to include cases involving any use of physical force, not just deadly force;

2. requiring, rather than allowing, 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. requiring law enforcement units to record 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.

With regard to hiring practices, the act:

1. requires law enforcement units, by January 1, 2016, to develop and implement guidelines to recruit, retain, and promote minority police officers;

2. 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;

3. prohibits a unit from hiring an officer who (a) was previously dismissed from a unit for malfeasance or serious misconduct or (b) resigned or retired during an investigation for such conduct; and

4. requires a unit to inform another unit about an officer's dismissal, resignation, or retirement under these circumstances if it knows the officer is applying for a position as a police officer with the other unit.

Finally, with some exceptions, the act 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.

EFFECTIVE DATE: October 1, 2015 except the provisions on (1) police body camera use are effective upon passage and (2) grants for body camera purchases are effective January 1, 2016.

1—TRAINING REQUIREMENTS

The act requires police basic and review training programs conducted or administered by the State Police, POST, and municipal police departments to include training on (1) using physical force; (2) using body cameras and retaining the records they create; and (3) cultural competency, sensitivity, and bias-free policing.

2 & 3 — MINORITY POLICE OFFICER HIRING AND PROMOTION

Guidelines

By January 1, 2016, the act requires law enforcement units to develop and implement guidelines to recruit, retain, and promote minority police officers. It requires each unit's guidelines to promote the goal of achieving racial, gender, and ethnic diversity in the unit.

The act applies to state, municipal, or other government 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 act, 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.

Communities with High Concentration of Minority Residents

The act 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. For these purposes, 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 efforts may include, among other things, community outreach and attracting young people from the community to law enforcement careers through:

1. establishing 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 instituting 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 examination list.

4 — USE-OF-FORCE INVESTIGATIONS

The act expands when the Division of Criminal Justice must investigate a death involving a peace officer. Prior law required the division to investigate when a peace officer, in the performance of his or her duties, used deadly physical force on someone and that person died. “Deadly physical force” is physical force that can be reasonably expected to cause death or serious physical injury (CGS 53a-3(5)). The act requires an investigation when the officer uses any type of physical force and death results.

The act also 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. ) Prior law gave the chief state's attorney the option to appoint one of these individuals to conduct the investigation.

Existing division policy requires (1) an investigation into any death determined to have been caused by a police officer's use of force and (2) the chief state's attorney to 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.

5 — RECORD OF POLICE USE OF FIREARMS OR FORCE

The act requires law enforcement units to create and maintain a record about any incident in which a police officer (1) discharges a firearm except in training or when dispatching an animal or (2) uses physical force 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 another; or using pepper spray or an electroshock weapon on another. 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)).

The act requires the record to include the police officer's name, the incident's time and place, a description of the incident, and the names of any known victims and witnesses present at the incident. These provisions apply to the same law enforcement units and officers as described above in the provisions on minority hiring.

6 — HIRING AND OFFICER MISCONDUCT

The act 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 his or her 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 a former 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 act:

1. “malfeasance” has its common meaning and

2. “serious misconduct” means an officer's improper or illegal actions connected with official duties that could cause a miscarriage of justice or discrimination, such as a felony conviction, evidence fabrication, repeated use of excessive force, bribe acceptance, or 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 in the above provisions on minority hiring.

7 & 8 — BODY CAMERAS

DESPP-POST List

The act requires the DESPP commissioner and POST to jointly evaluate and approve the minimal technical specifications of (1) body cameras for police officers to wear and (2) digital storage devices or services for law enforcement agencies to use to retain cameras' recorded data. By January 1, 2016, they must make the technical specifications available to law enforcement agencies. They may revise the specifications as necessary.

Grants

The act requires the Office of Policy and Management (OPM), within available resources, to administer a grant program to reimburse municipalities for purchasing body cameras and digital storage devices or services that conform to the DESPP-POST minimal technical specifications. Municipalities may apply for grants in a manner set by the OPM secretary.

The act requires grants to reimburse municipalities that purchase:

1. during FY 17, enough equipment to allow each sworn officer to have a device when interacting with the public in a law enforcement capacity, at up to 100% of the costs (for digital storage services, reimbursement is limited to the cost of services for up to one year);

2. (a) from January 1, 2012 through June 30, 2016, such equipment in an amount no greater than described above, and (b) additional body camera equipment 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, at an additional amount up to 100% of the costs; and

3. in FY 18, such equipment if the municipality was not reimbursed under the other provisions, at up to 50% of the costs (for digital storage services, reimbursement is based on the cost of services for up to one year).

Required Use by Officers

Beginning July 1, 2016, the act 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 act 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, including those that also receive grants for prior purchases between January 1, 2012 and June 30, 2016, or (b) obtain body cameras in FY 18.

Sworn members of municipal police departments that receive an OPM grant for body cameras purchased between January 1, 2012 and June 30, 2016, but no additional OPM grants, 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 act's equipment and data requirements.

Officers must use equipment that conforms to the DESPP-POST minimum specifications but may use non-conforming equipment purchased by their enforcement agencies before January 1, 2016.

The act requires each officer to wear the camera on his or her outer-most garment and above the midline of the torso when using the equipment. Officers must use it while interacting with the public in their law enforcement capacity.

The act prohibits officers from using body cameras until they receive training on using the equipment and retaining the data it creates. But officers using the equipment before October 1, 2015 may continue to use it before receiving the training. Agencies must ensure that officers receive training at least annually, including training on equipment care and maintenance.

Exceptions to Recording Requirement and Record Disclosures

The act prohibits officers from using body cameras to intentionally record the following scenarios, unless an agreement between the agency and federal government provides otherwise:

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 suspects, in a hospital or medical facility; or

6. in mental health facilities unless responding to a call involving a suspect in such facilities.

Under the act, records that capture any of the images described above are not public records for disclosure purposes under the Freedom of Information Act (FOIA). The act makes records capturing the following images subject to disclosure under existing FOIA rules except to the extent that disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy: (1) the scene of an incident involving a domestic or sexual abuse victim or (2) a homicide, suicide, or deceased accident victim.

Ensuring Functioning Equipment

The act requires officers to (1) inspect and test equipment before each shift to verify proper functioning; (2) notify their supervisors of problems found during inspection; and (3) inform supervisors, as soon as practicable, about lost, damaged, or malfunctioning equipment.

Supervisors must ensure the equipment's inspection, repair, and replacement as necessary.

Guidelines

By January 1, 2016, the act requires the DESPP commissioner and POST to jointly issue guidelines on using body cameras, retaining their data, and storing the data safely and securely. 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 and submit them to the Judiciary and Public Safety and Security committees.

Officer Use and Access to Recordings

The act allows an officer to review a recording from his or her 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 has a right to review (1) the recording, together with his or her attorney or labor representative, and (2) recordings from other body cameras capturing his or her image or voice during the incident.

The act prohibits law enforcement agency employees from editing, erasing, copying, sharing, altering, or distributing any recording made by the equipment or its data except as required by state or federal law.

9 — OFFICERS INTERFERING WITH PHOTOGRAPHY

The act 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, videotaping, and recording images in branch facilities.

The act applies to peace officers except for federal government special agents and Mashantucket Pequot and Mohegan tribes' law enforcement unit members.

BACKGROUND

POST

POST (1) trains, certifies, and establishes minimum qualifications for municipal police officers and others and (2) enforces professional standards for certifying and decertifying them.

Peace Officers

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)).

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