HB5133 102ND GENERAL ASSEMBLY

LRB102 23189 RLC 32351 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB5133

Introduced 1/27/2022, by Rep. Anne Stava-Murray

SYNOPSIS AS INTRODUCED:

50 ILCS 706/10-20

Amends the Law Enforcement Officer-Worn Body Camera Act. Provides that notwithstanding any provisions of the Act to the contrary, the law enforcement agency: (1) shall within 5 business days after an officer-involved death or the officer's use of force likely to cause death or great bodily harm, publicly release the names and officer-worn body camera recordings of all officers who committed the officer-involved death or force likely to cause death or great bodily harm; and (2) shall publicly release the names and officer-worn body camera recordings of all officers who have committed an officer-involved death since January 1, 2014; and (3) may, on a case-by-case basis in matters of significant public interest and after consultation with the chief of police of the law enforcement agency whose officer's recorded the officer-worn body camera recordings and the Attorney General, publicly release any other officer-worn body camera recordings that may not otherwise be releasable under a Freedom of Information Act request. Provides that the law enforcement agency shall not release an officer-worn body camera recording under if the following persons inform the chief of police, orally or in writing, that they do not consent to its release: (1) for an officer-worn body camera recording of an officer-involved death, the decedent's next of kin; and (2) for an officer-worn body camera recording of the officer's use of force likely to cause death or great bodily harm, the individual against whom the force likely to cause death or great bodily harm was used, or if the individual is a minor or unable to consent, the individual's next of kin.

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Law Enforcement Officer-Worn Body Camera Act is amended by changing Section 10-20 as follows:

(50 ILCS 706/10-20)

Sec. 10-20. Requirements.

(a) The Board shall develop basic guidelines for the use of officer-worn body cameras by law enforcement agencies. The guidelines developed by the Board shall be the basis for the written policy which must be adopted by each law enforcement agency which employs the use of officer-worn body cameras. The written policy adopted by the law enforcement agency must include, at a minimum, all of the following:

(1) Cameras must be equipped with pre-event recording, capable of recording at least the 30 seconds prior to camera activation, unless the officer-worn body camera was purchased and acquired by the law enforcement agency prior to July 1, 2015.

(2) Cameras must be capable of recording for a period of 10 hours or more, unless the officer-worn body camera was purchased and acquired by the law enforcement agency prior to July 1, 2015.

(3) Cameras must be turned on at all times when the officer is in uniform and is responding to calls for service or engaged in any law enforcement-related encounter or activity, that occurs while the officer is on duty.

(A) If exigent circumstances exist which prevent the camera from being turned on, the camera must be turned on as soon as practicable.

(B) Officer-worn body cameras may be turned off when the officer is inside of a patrol car which is equipped with a functioning in-car camera; however, the officer must turn on the camera upon exiting the patrol vehicle for law enforcement-related encounters.

(C) Officer-worn body cameras may be turned off when the officer is inside a correctional facility or courthouse which is equipped with a functioning camera system.

(4) Cameras must be turned off when:

(A) the victim of a crime requests that the camera be turned off, and unless impractical or impossible, that request is made on the recording;

(B) a witness of a crime or a community member who wishes to report a crime requests that the camera be turned off, and unless impractical or impossible that request is made on the recording;

(C) the officer is interacting with a confidential informant used by the law enforcement agency; or

(D) an officer of the Department of Revenue enters a Department of Revenue facility or conducts an interview during which return information will be discussed or visible.

However, an officer may continue to record or resume recording a victim or a witness, if exigent circumstances exist, or if the officer has reasonable articulable suspicion that a victim or witness, or confidential informant has committed or is in the process of committing a crime. Under these circumstances, and unless impractical or impossible, the officer must indicate on the recording the reason for continuing to record despite the request of the victim or witness.

(4.5) Cameras may be turned off when the officer is engaged in community caretaking functions. However, the camera must be turned on when the officer has reason to believe that the person on whose behalf the officer is performing a community caretaking function has committed or is in the process of committing a crime. If exigent circumstances exist which prevent the camera from being turned on, the camera must be turned on as soon as practicable.

(5) The officer must provide notice of recording to any person if the person has a reasonable expectation of privacy and proof of notice must be evident in the recording. If exigent circumstances exist which prevent the officer from providing notice, notice must be provided as soon as practicable.

(6) (A) For the purposes of redaction, labeling, or duplicating recordings, access to camera recordings shall be restricted to only those personnel responsible for those purposes. The recording officer or his or her supervisor may not redact, label, duplicate or otherwise alter the recording officer's camera recordings. Except as otherwise provided in this Section, the recording officer and his or her supervisor may access and review recordings prior to completing incident reports or other documentation, provided that the supervisor discloses that fact in the report or documentation.

(i) A law enforcement officer shall not have access to or review his or her body-worn camera recordings or the body-worn camera recordings of another officer prior to completing incident reports or other documentation when the officer:

(a) has been involved in or is a witness to an officer-involved shooting, use of deadly force incident, or use of force incidents resulting in great bodily harm;

(b) is ordered to write a report in response to or during the investigation of a misconduct complaint against the officer.

(ii) If the officer subject to subparagraph (i) prepares a report, any report shall be prepared without viewing body-worn camera recordings, and subject to supervisor's approval, officers may file amendatory reports after viewing body-worn camera recordings. Supplemental reports under this provision shall also contain documentation regarding access to the video footage.

(B) The recording officer's assigned field training officer may access and review recordings for training purposes. Any detective or investigator directly involved in the investigation of a matter may access and review recordings which pertain to that investigation but may not have access to delete or alter such recordings.

(7) Recordings made on officer-worn cameras must be retained by the law enforcement agency or by the camera vendor used by the agency, on a recording medium for a period of 90 days.

(A) Under no circumstances shall any recording, except for a non-law enforcement related activity or encounter, made with an officer-worn body camera be altered, erased, or destroyed prior to the expiration of the 90-day storage period. In the event any recording made with an officer-worn body camera is altered, erased, or destroyed prior to the expiration of the 90-day storage period, the law enforcement agency shall maintain, for a period of one year, a written record including (i) the name of the individual who made such alteration, erasure, or destruction, and (ii) the reason for any such alteration, erasure, or destruction.

(B) Following the 90-day storage period, any and all recordings made with an officer-worn body camera must be destroyed, unless any encounter captured on the recording has been flagged. An encounter is deemed to be flagged when:

(i) a formal or informal complaint has been filed;

(ii) the officer discharged his or her firearm or used force during the encounter;

(iii) death or great bodily harm occurred to any person in the recording;

(iv) the encounter resulted in a detention or an arrest, excluding traffic stops which resulted in only a minor traffic offense or business offense;

(v) the officer is the subject of an internal investigation or otherwise being investigated for possible misconduct;

(vi) the supervisor of the officer, prosecutor, defendant, or court determines that the encounter has evidentiary value in a criminal prosecution; or

(vii) the recording officer requests that the video be flagged for official purposes related to his or her official duties.

(C) Under no circumstances shall any recording made with an officer-worn body camera relating to a flagged encounter be altered or destroyed prior to 2 years after the recording was flagged. If the flagged recording was used in a criminal, civil, or administrative proceeding, the recording shall not be destroyed except upon a final disposition and order from the court.

(8) Following the 90-day storage period, recordings may be retained if a supervisor at the law enforcement agency designates the recording for training purposes. If the recording is designated for training purposes, the recordings may be viewed by officers, in the presence of a supervisor or training instructor, for the purposes of instruction, training, or ensuring compliance with agency policies.

(9) Recordings shall not be used to discipline law enforcement officers unless:

(A) a formal or informal complaint of misconduct has been made;

(B) a use of force incident has occurred;

(C) the encounter on the recording could result in a formal investigation under the Uniform Peace Officers' Disciplinary Act; or

(D) as corroboration of other evidence of misconduct.

Nothing in this paragraph (9) shall be construed to limit or prohibit a law enforcement officer from being subject to an action that does not amount to discipline.

(10) The law enforcement agency shall ensure proper care and maintenance of officer-worn body cameras. Upon becoming aware, officers must as soon as practical document and notify the appropriate supervisor of any technical difficulties, failures, or problems with the officer-worn body camera or associated equipment. Upon receiving notice, the appropriate supervisor shall make every reasonable effort to correct and repair any of the officer-worn body camera equipment.

(11) No officer may hinder or prohibit any person, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a public place or when the officer has no reasonable expectation of privacy. The law enforcement agency's written policy shall indicate the potential criminal penalties, as well as any departmental discipline, which may result from unlawful confiscation or destruction of the recording medium of a person who is not a law enforcement officer. However, an officer may take reasonable action to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order.

(b) Recordings made with the use of an officer-worn body camera are not subject to disclosure under the Freedom of Information Act, except as provided in subsection (b-5) and except that:

(1) if the subject of the encounter has a reasonable expectation of privacy, at the time of the recording, any recording which is flagged, due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm, shall be disclosed in accordance with the Freedom of Information Act if:

(A) the subject of the encounter captured on the recording is a victim or witness; and

(B) the law enforcement agency obtains written permission of the subject or the subject's legal representative;

(2) except as provided in paragraph (1) of this subsection (b), any recording which is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm shall be disclosed in accordance with the Freedom of Information Act; and

(3) upon request, the law enforcement agency shall disclose, in accordance with the Freedom of Information Act, the recording to the subject of the encounter captured on the recording or to the subject's attorney, or the officer or his or her legal representative.

For the purposes of paragraph (1) of this subsection (b), the subject of the encounter does not have a reasonable expectation of privacy if the subject was arrested as a result of the encounter. For purposes of subparagraph (A) of paragraph (1) of this subsection (b), "witness" does not include a person who is a victim or who was arrested as a result of the encounter.

Only recordings or portions of recordings responsive to the request shall be available for inspection or reproduction. Any recording disclosed under the Freedom of Information Act shall be redacted to remove identification of any person that appears on the recording and is not the officer, a subject of the encounter, or directly involved in the encounter. Nothing in this subsection (b) shall require the disclosure of any recording or portion of any recording which would be exempt from disclosure under the Freedom of Information Act.

(b-5)(1) Notwithstanding any provisions of subsection (b) to the contrary, the law enforcement agency, except as provided in subparagraph (2) of this subsection:

(A) shall within 5 business days after an officer-involved death or the officer's use of force likely to cause death or great bodily harm, publicly release the names and officer-worn body camera recordings of all officers who committed the officer-involved death or force likely to cause death or great bodily harm; and

(B) shall publicly release the names and officer-worn body camera recordings of all officers who have committed an officer-involved death since January 1, 2014; and

(2) may, on a case-by-case basis in matters of significant public interest and after consultation with the chief of police of the law enforcement agency whose officer's recorded the officer-worn body camera recordings and the Attorney General, publicly release any other officer-worn body camera recordings that may not otherwise be releasable under a Freedom of Information Act request.

(3) The law enforcement agency shall not release an officer-worn body camera recording under paragraph (1) of this subsection if the following persons inform the chief of police, orally or in writing, that they do not consent to its release:

(A) for an officer-worn body camera recording of an officer-involved death, the decedent's next of kin; and

(B) for an officer-worn body camera recording of the officer's use of force likely to cause death or great bodily harm, the individual against whom the force likely to cause death or great bodily harm was used, or if the individual is a minor or unable to consent, the individual's next of kin.

In the event of a disagreement between the persons who must consent to the release of an officer-worn body camera recording under subparagraph (A) of this paragraph (3), the law enforcement agency shall seek a resolution in the circuit court of the county in which the law enforcement agency is located. The circuit court of that county shall order the release of the officer-worn body camera recording if it finds that the release is in the interests of justice.

(4) Before publicly releasing an officer-worn body camera recording of an officer-involved death, the law enforcement agency shall:

(A) consult with an organization with expertise in trauma and grief on best practices for creating an opportunity for the decedent's next of kin to view the officer-worn body camera recording in advance of its release;

(B) notify the decedent's next of kin of its impending release, including the date when it will be released; and

(C) offer the decedent's next of kin the opportunity to view the officer-worn body camera recording privately in a non-law enforcement setting in advance of its release, and if the next of kin wish to so view the officer-worn body camera recording, facilitate its viewing.

(c) Nothing in this Section shall limit access to a camera recording for the purposes of complying with Supreme Court rules or the rules of evidence.

(Source: P.A. 101-652, eff. 7-1-21; 102-28, eff. 6-25-21; revised 7-30-21.)