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AB 748: Video of “Critical Incidents” Subject to Public Disclosure

Posted on Thursday, November 01, 2018 at 12:00AM

 

MIKE RAINS
Principal and Founding Member
Rains Lucia Stern St. Phalle & Silver, PC

Assembly Bill 748, introduced by Assembly Member Phil Ting, changes previous law under the California Public Records Act (CPRA) relating to video evidence captured by police officers during investigations and/or detentions of individuals. Governor Jerry Brown signed this bill into law September 30, and it will take effect July 1, 2019.
Prior to the enactment of AB 748, video and audio evidence of any type (i.e., light-bar camera, body camera, taser camera) was exempt from disclosure as an “investigatory record” under the California Public Records Act if the video evidence recorded an officer contacting/detaining anyone to investigate whether a violation of any law had occurred (Haney v. Superior Court (2001) 26 Cal.4th 1061).
Assembly Bill 748 will require a video or audio recording of a “critical incident” to be disclosed within time limits specified in the bill. The law defines a “critical incident” as either a discharge of a firearm by an officer or the use of any type of force that results in death or great bodily injury. The generally accepted definition of “great bodily injury” in California is any “significant or substantial physical injury.” (Penal Code § 12022.7(f)).
The rules concerning the obligation of a public agency to disclose video or audio evidence of a “critical incident” are somewhat murky. It undoubtedly will have to be clarified through future court proceedings, which will occur when an agency refuses to disclose video or audio evidence under the CPRA.
However, at present, the language of AB 748 provides that the public agency’s disclosure obligations are as follows:
1. In the event the agency receives a Public Records Act request relating to an “active criminal or administrative investigation” of an OIS or other use of force causing great bodily injury, the agency may initially delay disclosure of the video/audio under the “active criminal investigation” exemption for a maximum of 45 days. 
Thereafter, if the “active criminal and or administrative investigation” continues beyond 45 days following receipt of the CPRA request, the agency may delay disclosure of the audio/video for up to one year if the agency can demonstrate that disclosure would continue to interfere with the active investigation. We expect that this issue will probably be litigated between the person/entity making the CPRA request and the governmental agency in the event that the agency declines to release the audio/video after the initial 45-day period. 
AB 748 allows the agency to continue to delay disclosure even after one year. However, if the agency does that, it is required to demonstrate (most likely in a court of law in a writ of mandate proceeding) by “clear and convincing evidence” that disclosure of the audio/video would still “substantially interfere with the investigation.” In addition, if the agency continues to delay disclosure after one year, the agency must provide the requestor an estimated date when it will disclose the audio/video, and the agency is further required to reassess the withholding of the audio/video and notify the requestor every 30 days thereafter.
AB 748 allows the agency to use “redaction technology” (by blurring faces of persons depicted in a video) to “prevent violations of the reasonable expectation of privacy” of the person(s) depicted. This may mean that the agency would be permitted to blur the face of a juvenile, a crime victim, a bystander or a person whose image is captured by a body camera in a hospital (as examples). However, the bill also states that if the “reasonable expectation of privacy” of a person depicted in a video cannot be protected through the use of redaction technology, the agency then can continue to withhold disclosure of the audio/video pursuant to a CPRA request. However, in the event the Agency withholds the audio/video from public disclosure under these circumstances, it will be required to provide a copy of the audio/video to the person depicted in the video and/or his/her legal representative (who may then provide the video to the media).
The concern of this firm about the release of agency-captured video and audio of officer-involved shootings or other substantial uses of force resulting in great bodily injury is the fact that this type of evidence is always graphic and can be quite unsettling to persons unaccustomed to seeing the application of force to subdue or arrest individuals. Public disclosure has the potential to create public hysteria concerning virtually any police use of force and therefore increase political and media pressure on elected and appointed officials to take disciplinary action and/or file criminal charges against the peace officers depicted in these videos.
RLS has been undertaking careful analysis of video evidence of law enforcement actions for over two decades. We will continue to perform the critical analyses that often demonstrate that OISes and other uses of force are lawfully permitted uses of force. It is only through careful and considered analysis of these videos that we can ensure that officers involved in these matters are not subjected to erroneous and inflammatory assertions made by members of the public who have little understanding or appreciation of the rights and obligations of officers to use physical force under the law, and who will likely react to video and/or audio evidence of police use of force on only first impression and emotion.  

About the Author
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 35 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.

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