Over the last year, violent confrontations between police and members of the public have sparked a national conversation examining the relationships between law enforcement agencies and the communities they serve. State lawmakers are playing a critical role in the discussion as they participate on task forces and evaluate hundreds of pieces of legislation that address policing issues during 2015 sessions. Current policies being reviewed affect community policing, use of force, the collection of policing statistics, body-worn cameras, the filming of law enforcement activities by bystanders and specialized training requirements for police officers, among others.
Community Policing
“Community policing” is an approach to law enforcement that uses community partnerships and problem-solving techniques to proactively address public safety concerns, according to the U.S. Department of Justice. Community policing proponents assert that by building strong relationships in advance, communities and police are better able to respond to and communicate during crisis situations.
Rather than a specific set of policies, community-policing is a philosophy that may look different in each locality based on the needs of the police and the people of their jurisdiction. Concurrent evaluations of community policing practices are happening at the state and federal level. In December 2014, President Barrack Obama created a Task Force on 21st Century Policing to identify and recommend best practices for “fostering strong, collaborative relationships between local law enforcement and the communities they protect.”
Similarly, Ohio Governor John Kasich created a Task Force on Community-Police Relations to explore causes of, and potential solutions to, damaged relationships between police officers and communities.
In addition to releasing the report, Kasich announced the creation of a statewide Collaborative Community-Police Advisory Board. A principal charge of the board is to develop statewide minimum standards for the proper use-of-force, including deadly force.
Community Policing Resources:
Police Use of Deadly Force
Physical confrontations between the public and law enforcement can strain community-police relations. However, to do their jobs safely and effectively police officers must be able to use physical force, including deadly force, in certain situations. According to the 1985 U.S. Supreme Court case, Tennessee v. Garner, 471 U.S. 1 (1985), police can use deadly force if it is necessary to prevent the escape of a fleeing felon who poses a serious physical threat to the officer or others.
Measures to address oversight and the collection of data for police involved deaths are part of current statehouse discussions.
Investigations into Police Involved Deaths
In 2015, state legislatures are considering legislation that would: require specific procedures for investigating police involved deaths; address the appointment of special prosecutors; and improve public dissemination of information explaining prosecutorial decisions.
Current Law
Two states—Connecticut (§ 51-277a) and Wisconsin (§ 175.47)—have laws setting specific investigation procedures for police-involved deaths. Connecticut’s law requires the state Division of Criminal Justice to investigate any use of deadly physical force by law enforcement. As part of an investigation, the state’s chief attorney has the authority to appoint a special prosecutor. The law also enables any person to make a written request to the Chief State’s Attorney to appoint a special prosecutor. When the Division of Criminal Justice completes their investigation, they are required to submit a report to the Chief State's Attorney detailing the circumstances of the incident and whether the use of deadly force was appropriate. The chief state's attorney must transmit a copy of the report to specified state and municipal officials. Wisconsin’s law requires officer-involved deaths to be investigated by two investigators who are not employed by the same agency that employs the officer who committed the killing. The investigators must provide a report to the district attorney. If the district attorney determines there is no basis to prosecute the law enforcement officer involved, then the investigators shall release their report to the public.
2015 Legislation
In 2015, at least 24 states are considering legislation to address investigatory procedures for officer-involved deaths. Measures in 13 of those states address the appointment of special prosecutors.
The Colorado General Assembly passed Senate Bill 219. If signed, the measure would require each police department in the state to develop protocols for their participation in a multi-agency team to investigate every discharge of a firearm by a police officer that results in injury or death. The protocols must be published on a publicly available website. The legislation also would require a district attorney, if there is a decision not to file criminal charges against an officer, to release a report to the public explaining their decision. If the district attorney refers the case to a grand jury and the grand jury does not pursue charges, then the district attorney may issue a public report at his or her discretion pursuant to previously established law.
Statistics on Police Use of Force
Lawmakers are also evaluating legislation addressing the collection of data and tracking of statistics on officer-involved deaths.
Current Law
Two states—North Carolina (§ 143B-904) and Oregon (§ 181.789)—require the collection of data for all cases where deadly force is used by police. North Carolina requires its Department of Public Safety to collect data on the number of deaths resulting from the use of deadly force by law enforcement officers and publish annual reports. Oregon’s requires law enforcement agencies to collect specific information on each incident, including the name, gender, race, ethnicity and age of the deceased.
2015 Legislation
Seven states in 2015—California, Colorado, Connecticut, Maryland, Massachusetts, North Carolina and Virginia—are considering bills that address the collection of data for officer involved deaths. Maryland enacted House Bill 954 requiring every law enforcement agency in the state to report, on an annual basis, all officer-involved deaths to the Governor’s Office of Crime Control and Prevention. In addition, Colorado enacted Senate Bill 217 requiring that every officer-involved shooting be reported to the state Division of Criminal Justice.
Police Use of Chokeholds
Stemming from the death of Eric Garner in Staten Island, N.Y., legislators are evaluating legislation to regulate the use of chokeholds by law enforcement.
Current Law
Currently, Nevada (§ 289.810), Tennessee (§ 38-3-121) and the District of Colombia (§ 5-125.03) have laws addressing police use of chokeholds. Nevada allows officers to use chokeholds if they have completed the appropriate training and their local department permits its use. Tennessee allows police to use chokeholds only if other methods of restraint prove ineffective. The District of Colombia prohibits chokeholds and only allows their use in life-or-death situations. Their law classifies chokeholds as a service weapon.
2015 Legislation
In 2015, Colorado, Hawaii, Illinois, New Jersey and New York are considering measures to limit the use of chokeholds by law enforcement.
Police Use of Body Cameras
Body-worn cameras are devices that police officers can wear as part of their uniforms to record what they see as they perform their duties.
Proponents of body-worn cameras believe video and audio recordings of law enforcement’s interactions with the public will provide the best evidence ofaccusations of police misconduct, as well as a defense to accusations of such conduct. They also believe being on camera reduces some tension between police officers and the public. For example, a field experiment conducted on body cameras with the Rialto, Calif., Police Department found that incidents where police used force and where citizens registered complaints against police officers were reduced by 50 and 90 percent respectively compared to the previous year.
Several municipalities—including Chicago, the District of Columbia, Los Angeles, New York and Seattle —have recently implemented body-camera programs and their experiences will help inform body-camera policy moving forward.
While many are enthusiastic about the potential benefits of body cameras, there are practical and constitutional hurdles to their implementation. These include funding, data storage and retention, open records laws, recording in areas protected by the Fourth Amendment, and appropriate regulations for police use. Many of these and other issues are addressed in state legislation.
Current Law
Before 2015, four states had enacted laws that addressed the use of body-worn cameras. Pennsylvania’s law (30 § 901, 34 § 901) allows waterway and game conservation officers to wear body cameras and Vermont (20 § 2367) has a law that, in part, required a study of their use in conjunction with electronic control devices. Oklahoma’s law (51 § 24A.8) classifies video and audio files from body-worn cameras as records under its open records law. Their law also specifies situations where video should be redacted before being released, including portions that depict: the death of a person or a dead body; nudity; or the identity of people younger than 16 years old. New Hampshire’s (§ 570-A:2) law addressed the impact of body-worn cameras on their eavesdropping law, which generally requires that both parties consent to the making of an audio or video recording. The state now has an exception to this requirement for audio and video recordings made by officers during routine stops so long as they provide notice to the person being recorded. New Hampshire also created a similar exception for recording devices used in conjunction with electronic control devices. In this circumstance, officers are required to notify the subject of the recording that the recording exists and provide them with a copy if requested.
2015 Legislation
This year a majority of states—34 as of May 18—are considering legislation to address body-worn cameras for law enforcement. So far, six states—Arizona, Colorado, Florida, Maryland, North Dakota and Utah—have enacted new laws. Arizona Senate Bill 1300 created a Law Enforcement Officer Body Camera Study Committee to recommend new policies and legislation for their use and operation. The study committee’s final report is due by Dec. 31, 2015. Colorado’s House Bill 1285 created a body-worn camera grant program, a body-worn camera fund and a body-worn camera study committee. The grant program will be administered by the Division of Criminal Justice and funded by the body-worn camera fund. The fund will be in the state treasury and financed by annual legislative appropriations, as well as, any grants and donations received. The body-worn camera study group will examine best practices and submit a written report of its recommendations to the House and Senate Judiciary committees before March, 1 2016. The legislation also appropriates $89,893 for the 2015-16 fiscal year to the department of public safety to hire one additional staff person.
Florida’s new law, Senate Bill 248, creates standards for law enforcement’s release of body-worn camera video under the state’s open records law. Specifically, the law generally prohibits the release of video taken in a person’s residence, in a medical facility or in an area most people would consider private. It also sets standards related to whom police must share video with, including those who are the subject of the recording. The law also gives direction to courts evaluating whether video should be released. Factors the judiciary may consider include whether the disclosure is necessary to advance a compelling interest, whether disclosure would reveal information of a highly sensitive and personal nature, whether denying its release is necessary to prevent a serious threat to the fair administration of justice, and if the recording could be redacted to protect privacy interests.
Maryland’s House Bill 533 and Senate Bill 482 created a “Commission Regarding the Implementation and Use of Body Cameras by Law Enforcement Officers.” It was charged with studying and making recommendations regarding best practices for body cameras. The law also requires the Maryland Police Training Commission to develop and publish an online policy for body-camera use that addresses a multitude of factors, including when a recording is mandatory, when it is prohibited, how access to recordings is handled, procedures for review and retention of recordings, and consequences for violating the agency’s body-worn camera policy.
North Dakota’s new law, House Bill 1264, makes any recording made in a private place by a police or firefighters’ body camera exempt from the state’s open records law. Utah’s new law, Senate Bill 82, mandates that each police department have a body camera policy requiring an officer executing a warrant to wear a body camera when one is available. It also requires that every officer comply with their agency’s body-camera policy.
Body Camera Reports and Studies:
- Miller, Lindsay, Jessica Toliver, and Police Executive Research Forum, Implementing a Body Worn Camera Program: Recommendations and Lessons Learned, Washington, DC, 2014.
- Los Angeles County Sheriff’s Department, Personal Video Recording Devices: Test & Evaluation Report Los Angeles, CA, 2012.
- The Rialto Police Department conducted a study to determine what effect body-worn cameras would have on police use of force. Self-Awareness to Being Watched and Socially-Desirable Behavior: A Field Experiment on the Effect of Body-Worn Cameras on Police Use-Of-Force.
- The Seattle Police Department has a body worn camera pilot program, and the policy directing its implementation and operation was approved in December.
- Report and Recommendations of the District of Columbia Police Complaints Board: Enhancing Police Accountability Through an Effective On-Body Camera Program for MPD Officers
- Department of Justice review of existing studies on body-worn cameras.
Webinar
Criminal Justice: Body Cameras for Police?
View this recorded webinar to learn the costs and benefits of implementing body camera programs and the issues being addressed in state and federal legislation.
Speakers
- Rich Williams, Policy Specialist, Criminal Justice Program, NCSL
- Susan Frederick and Jennifer Arguonzoni, State-Federal Relations, NCSL
View Audio/Video Webinar
View Audio Only Webinar
The Public’s Ability to Film Law Enforcement Activities
With the proliferation of cellphone cameras, members of the public are increasingly filming law enforcement activities. Recording officers as they work is a legal activity unless it interferes with an officer’s ability to do his or her job or jeopardizes the officer’s safety. What qualifies as interfering with or jeopardizing the safety of an officer is a gray area that has led to many people being arrested for a variety of offenses, including eavesdropping, harassment, failure to obey law enforcement, disorderly conduct and interfering with a police officer.
Current Law
Last year, Illinois lawmakers enacted the first law in the nation addressing publicly filming police activity, in its case for the offense of eavesdropping. Illinois’ eavesdropping statute requires that all parties consent to any private recording made. The new law (720 ILCS 5/14-1) clarifies the recording of officers on duty in public places is lawful because they have no expectation of privacy.
2015 Legislation
During 2015 sessions, legislatures in 10 states are considering measures that clarify which behaviors are legal and illegal while filming police. The Colorado General Assembly has approved House Bill 1290, and the measure is currently with the governor. If signed, the bill would give citizens who record police officers the right to maintain custody of their device and the recording. It also creates procedures for officer’s who wish to obtain video as part of an investigation. In addition, it would create a civil right of action for any person whose device or recording was damaged or deleted by an officer, or if their attempt to record was interfered with, or if they were subjected to threats or retaliation.
Recording Custodial Interrogations
Current Law
Fifteen states require or recommend that audio and visual recordings be made of statements made by people in police custody. Proponents of recording interrogations believe it provides the best evidence of what occurred during police questioning, prevents disputes about an officer's conduct or treatment of a suspect, and enhances public confidence in the criminal process. The laws specify for which crimes the recordings must or should be made, under which circumstances a statement made in violation of these laws is inadmissible in court, and what exceptions exist for unrecorded statements to be admitted as evidence. The exceptions include exigent circumstances, a person's refusal to be electronically recorded, protecting the identity of the person making the statement, and an equipment malfunction.
2015 Legislation
Eight states in 2015 are considering legislation to address the recording of custodial interrogations. No state has enacted a new law.
Militarization of Police
Several federal programs enable the transfer, purchase or appropriation of military property to state and local law enforcement agencies. Proponents of the programs contend they provide significant cost savings to police departments for necessary equipment ranging from office supplies to tactical weaponry. Critics are concerned that some items—riot gear, grenade launchers, AR-15 rifles and armored vehicles, for example—are transferred with little oversight or justification and that their use creates a culture of aggression within civilian police forces.
In 2014, President Obama ordered a review of all transfer programs. The resulting December 2014 report provided details for how each program operates. According to the report, only a small percentage of transferred property are military style weapons.
Before 2015, no state had enacted a law addressing federal transfer programs. This year, 17 states are considering legislation to regulate transfers, and New Jersey and Montana have enacted new laws.
New Jersey, with the adoption of Senate Bill 2364, now requires all transfers of equipment from the Department of Defense to state and local law enforcement agencies to be approved by their local governing body. Montana’s law, under House Bill 330, prohibits certain property, including aircraft, explosives, grenade launchers, silencers and armored vehicles from being transferred. It also requires that any purchase of federal equipment by police be made with state or local funds. In addition, under the law, any law enforcement agency requesting property from a military surplus program must publish a notice of the request on a publicly accessible website within 14 days.
Training for Police Officers
Forty-nine states have commissions charged with developing, implementing, and overseeing training curriculum for peace officers. These training entities are statutorily created in at least 44 states. The power vested in each commission, as well as the scope of their duties, varies across jurisdictions. Many have the power to certify police officers and training schools, while some are charged with encouraging the use of best practices. Common funding sources for the commissions’ operations include legislative appropriations, dedicated treasury funds, civil and criminal fines and court fees.
A majority of states also require the inclusion of issue-specific courses in police training. Two areas commonly required are crisis intervention team training and racial bias training.
Crisis Intervention Team Training
Current Law
Crisis intervention training prepares police officers to better respond to situations involving people with mental health needs. The training also empowers officers to divert people with mental health needs to appropriate services, keeping them from incarceration. Eighteen states currently have statutes that address crisis intervention training for police officers. California’s law (Penal Code § 13515.25) enumerates core requirements for police crisis intervention training. Under statute, the basic training required must include instruction on: the nature of mental illnesses; appropriate responses to common situations; conflict resolution and de-escalation techniques for potentially dangerous situations involving people exhibiting mental illness; alternatives to lethal force when interacting with potentially dangerous people; community and state resources available to serve people with mental illness and how these resources can be best utilized by law enforcement.
2015 Legislation
This year, Indiana, Texas and Washington enacted new laws addressing crisis intervention training for law enforcement. Indiana’s Senate Bill 380 created a Technical Assistance Center for Crisis Intervention Teams. The center is charged with identifying funding opportunities for local crisis intervention teams, creating an advisory committee, providing training and technical assistance, communicating law enforcement standards for transferring an individual in crisis to medical treatment and reporting on the status of crisis intervention teams in Indiana. Texas, with the enactment of Senate Bill 219, enables county mental health authorities to prioritize their funding for programs, including crisis intervention training for law enforcement, to divert individuals from detention.
Washington’s law, Senate Bill 5311, requires all peace officers with patrol duties to complete eight hours of crisis intervention training for certification as well as an annual two-hour online continuing education course. The law provides for enhanced crisis intervention training for at least 25 percent of all patrol duty peace officers, which may require 40 hours of commission-certified training. In addition, it enables the commission to create a certification organization to provide crisis intervention training in addition to itself. It also requires the commission to reimburse Washington law enforcement agencies for the cost of sending officers to crisis intervention training.
Racial Bias Training
Current Law
Racial bias training provides police officers with tools to help them reduce the effect of bias on their decision making. Thirty-five states have statutes addressing bias training for police. Montana’s law (§ 44-2-117), for example, provides that each police department in the state require their officers to complete cultural awareness and racial profiling training. The training program must be certified by the Montana Public Safety Officer Standards & Training Council. It also enables law enforcement agencies to provide counseling for officers who are found to have engaged in race-based traffic stops. The courses must “stress understanding and respect for racial and cultural differences and development of effective, noncombat methods of carrying out law enforcement duties in a racially and culturally diverse environment.”
2015 Legislation
In 2015, 14 states are considering legislation to address bias training for law enforcement.
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