California has taken another step towards transparency in the investigation of police-involved shootings and the use of force. As of July 1, 2019, AB 748 amends California’s Public Records Act to require law enforcement agencies to produce video and audio recordings of “critical incidents,” which are defined as incidents in which a peace or custodial officer discharged his or her firearm at a person, or in which the officer used force that resulted in death or great bodily injury to a person. The recordings must be released within 45 days of the time at which the agency became aware of the event or should have become aware of the event.

Previously, the Public Records Act contained several exceptions that could prevent these recordings from ever being viewed by the public, because the person requesting the information had the burden to file a motion with the court for an order to release the records. In many cases, these motions have proven to be unsuccessful

While some of those exceptions are still in place, the burden is now on law enforcement agencies to prove to a court that the release of these recordings would harm a vital interest of the state, such as protection of the privacy of individuals depicted in the recording, endanger the safety of a person, or disrupt the successful completion of an ongoing investigation. However, the new law only allows agencies time to delay the release but does not allow agencies to prevent the recordings from ever becoming available.

Why This New Law Matters

The fight for equal treatment under the law is one that many California citizens are forced to confront on a daily basis. While there are plenty of peace officers who strive to uphold the law and enforce it as fairly as possible, too many Californians have been killed or severely injured as a result of the unlawful use of force. Many of these incidents began with harassment of a citizen on the basis of race or religion.

With the enactment of laws that made it mandatory that officers wear cameras, many civil rights advocates and organizations had hoped that these cameras would result in a reduction of harassment against minority groups, as police would be aware that they have a system that is monitoring their actions on a continual basis. However, those laws failed to address the most necessary element of those cameras: the recordings must be seen and heard by the public in order for officers who abuse their authority to be held accountable.

AB 748 is a proper step in that direction, allowing those who need the recordings to be used as evidence in criminal and civil cases to have more access to the evidence they need to show police misconduct.

More Fights Ahead

While AB 748 could prove to be a valuable tool in helping some achieve justice, more work remains to be done. The law only requires that the records, if available, be produced. Incredibly, no law requires that the body cameras actually be switched on, and there is currently no punishment for an officer who fails to activate his or her camera.  When it comes to activation of recording devices, the state has left it up to each agency to create policies governing their use. Likely, these policies will be the next front in the battle over monitoring police activity.

Critics say that the presence of cameras may cause an officer to think twice in a deadly situation, time which could be critical in saving the lives of other citizens and fellow officers. That time could be just long enough for a perceived threat to someone’s life to become a reality. Of course, many agencies already require cameras and microphones to be constantly operating in their patrol cars, and the officers have become used to their presence without fearing it will distract them in a life-and-death moment.

Wallin & Klarich Wants to Hear from You

We value the opinions of readers of this blog, and we would like to know what you think of the law requiring the release of the video and audio recordings in critical incidents. Do you think it will help bring about real change that will lead to equality under the law? Or do you agree that such monitoring could lead to more danger for police and the people they are sworn to protect? Please leave us your comments below.