NEWARK via ACLU NJ:– The Statehouse today announced an initiative to equip the New Jersey State Police with body-worn cameras, and provided state funding to help municipal police departments purchase the cameras. “The use of body-worn cameras will bolster trust and better provide for the safety and protection of residents and officers alike,” Christie said.
The announcement included the release of a 24-page directive (PDF) to law enforcement from Attorney General John Hoffman that spells out policies and practices for the use of body-worn cameras.
Following is a statement attributable to Udi Ofer, Executive Director of the ACLU-NJ, about the use of body-worn cameras and the law enforcement directive:
“The Attorney General directive released today on police use of body cameras falls short of what’s needed to create police accountability in New Jersey.
“While it contains some important safeguards, it fails to address those very concerns that have triggered the public’s desire for body cameras in the first place. The public will not have a right to access the kind of footage—whether it’s the chokehold used on Eric Garner or the arrest of Sandra Bland—that has sparked a conversation on police abuses.
“The Christie administration missed an important opportunity to create strong police accountability tools while also protecting the privacy and First Amendment rights of New Jerseyans.
“We have real concerns about several specific, key points:
Many important police interactions with civilians will not be recorded, including routine street encounters.
Public access to the recordings is too restrictive. For example, the subject of a recording isn’t guaranteed access to the recording.
Recordings may be kept indefinitely. That raises concerns about privacy, as well as First Amendment protections.”
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In recent months, law enforcement agencies have begun to equip their officers with body worn cameras (“BWCs”). A small number of police departments in New Jersey already deploy B WCs, while others plan to do so and currently are balancing the costs and benefits of these devices. New grant programs will incentivize departments to acquire BWCs by helping to defray costs. In light of the proliferation of BWCs across the State, it is appropriate for the Attorney General, as the State’s chief law enforcement officer, to provide guidance to police departments on how to make the best possible use of electronic recording technology. See N.J.S.A. 52:17B-98 (Attorney General is responsible for general oversight of law enforcement, and for ensuring the uniform and efficient enforcement of the criminal laws and the administration of criminal justice). It is decidedly in the public interest to establish foundational statewide standards with respect to certain critical policy issues, such as how an agency explains its BWC policy to the general public, when officers are required to activate their BWCs, when officers are permitted to turn off the recording device during an ongoing police-civilian encounter, and when and for what purposes law enforcement agencies and officers are authorized to access, view, copy, or disseminate stored B WC recordings. Although the statewide standards will establish basic requirements that all police departments must satisfy, these standards also should permit agencies to account for local community needs and interests, and should encourage agencies to develop and share best practices as they gain experience in using these devices. Accordingly, I, John J. Hoffman, Acting Attorney General of the State of New Jersey, :~ New Jersey Is An Equa! Opportunity Employer Printed on Recycled Paper and is Recyclable ~; s Page 2 pursuant to the authority granted to me by the Constitution of the State of New Jersey and the Criminal Justice Act of 1970, N.J. S.A. 52:17B-97 to -117, hereby DIRECT that all law enforcement agencies and officers shall implement and comply with the following procedures, standards, and practices concerning the use of body worn cameras and recordings. 1. GOVERNING PRINCIPLES 1.1 Establishing Uniform Statewide Standards While Permitting Departmental Policies to Address Local Concerns. The policies and standards established in this Directive are designed to help police departments achieve an optimal balance between potentially competing interests. For example, it is necessary to balance the need to promote police accountability and transparency on the one hand, against the need to respect the privacy interests of persons whose images and home interiors will be captured in a BWC recording on the other. So too, it is necessary to balance the benefits achieved by electronically recording evidence that might help to solve a crime and successfully prosecute an offender against the costs incurred if a BWC were to chill a victim or witness from providing a camera-equipped officer with information necessary to solve a crime and convict the offender. This Directive does not mandate the acquisition or deployment of BWCs. Rather, the decision to acquire these devices, and the decision as to when and in what circumstances officers will be equipped with them, is left to each law enforcement agency. If a department decides to equip an officer with a BWC, this Directive provides guidance on how the device is to be used, when it will be activated, when it might be de-activated in the course of an unfolding police-civilian encounter, and when a BWC recording may be accessed, viewed, copied, disseminated, or otherwise used. In providing such guidance, this Directive establishes certain foundational requirements that all police departments must satisfy. Law enforcement agencies nonetheless are expressly authorized to impose additional requirements beyond —but not inconsistent with —those established in this Directive. In this way, police agencies are afforded an opportunity to tailor their BWC policies and procedures to address local concerns and needs. Although police executives are afforded some flexibility in developing departmental policies and practices that address local needs and community concerns, this Directive makes clear that all policies must limit the discretion of individual officers in the field. The decision to activate a BWC must be based on objective criteria (~, the initiation of a specified type of police action, such as a consensual field inquiry, or the start of an officer’s duty shift). Furthermore, in any circumstance where an officer is afforded discretion in deciding whether to de-activate a BWC, the reasons for exercising that discretion must be documented to permit supervisory review. Page 3 1.2 Reco nizin~ the Multitude of Reasons for Deploying BWCs. It is widely recognized that BWCs can play an important role in addressing public concerns about police use of force. A BWC recording of apolice-involved shooting or other use-of-force event provides objective evidence of what occurred. The practical utility of BWCs, however, lies not only in their ability to record obj ectively the circumstances of apolice-civilian confrontation, but also in their capacity to discourage both officers and civilians from engaging in inappropriate conduct. Thus, for example, a BWC operating during apolice-civilian encounter can deter the officer from using force inappropriately, while at the same time deter a civilian from engaging in provocative conduct that might prompt the officer to use force. These devices also can serve to discourage both law enforcement and civilian witnesses from providing false information about the circumstances of the encounter; a BWC recording not only can vindicate an officer who is falsely accused of misconduct, and do so very quickly, but also will discourage a person from making false allegations against the officer in the first place. The foregoing benefits provide ample reason for police departments to consider deploying BWCs. The practical utility of these recording devices, however, is not limited to those rare occasions when police employ force, or are accused by civilians of misconduct. BWC recordings will be used far more routinely to document visual and aural evidence learned in the course of conducting police investigations. Not only will BWC recordings preserve accurate visual depictions of physical evidence, such as weapons and illicit drugs and paraphernalia, but also will document where and how physical evidence was found, thereby helping to establish the facts that must be presented in Fourth Amendment suppression hearings. BWCs also will record the physical appearance of suspects and crime victims, preserving evidence of any apparent injuries. The audio portion of BWC recordings, meanwhile, will document witness and suspect statements, preserving not only the substantive content of those statements, but also showing whether officers had complied with Miranda and other legal requirements. Although BWCs record events accurately and objectively, they do not replace the need for complete and accurate police reports and testimony. The fact that a BWC is not activated to record an encounter or event does not, of course, preclude an officer from testifying as to the circumstances of the encounter or event, or affect the admissibility of evidence. Nor does it suggest that the officer’s written report or testimony is inaccurate or incomplete. However, a BWC recording can supplement and corroborate the accuracy of written reports and testimony, which is one of the significant benefits of deploying these devices. 1.3 Practical and Policy-Related Differences Between BWCs and Vehicle-Mounted Video Cameras. Many police departments have been using vehicle-mounted dashboard cameras (“dash cams”) for years. Those departments already have well-established and reliable procedures in place for downloading electronic video/audio data securely, for preserving recordings, and for making Page 4 them available for discovery in criminal prosecutions. Police officers in jurisdictions that deploy dash cams have developed expertise in using these electronic recording devices to preserve evidence and to protect themselves against false allegations of misconduct. Our State’s longstanding experience with dash cams is important and must be integrated into the development of sound BWC practices and procedures. But it is not enough simply to copy and apply existing dash cam policies to this new form of electronic recording device. The inherent differences between dash cams and BWCs require a careful analysis of existing policies, practices, and procedures, recognizing that BWCs will record events that transpire during a much broader range of police-civilian encounters than traditionally have been recorded by dash cams. Vehicle-mounted cameras, of course, record events that occur out on the street, where there is a reduced expectation of privacy as compared to police-civilian encounters that occur, for example, inside private homes. An activated BWC, in contrast to a dash cam, will record events occurring during any type ofpolice-civilian encounter occurring in any setting. BWCs thus raise privacy issues and other complex issues that dash cam policies have not had to address. Accordingly, it is appropriate and necessary by means of this Directive to provide guidance to police departments on how best to balance competing interests and values to make the best possible use of this new law enforcement technology. 2. DEFINITIONS For purposes of this Directive: a. “Activate” means to actuate the recording mode/function of a body worn camera.’ b. “Body worn camera” (“BWC”) means a device worn by a law enforcement officer that makes an electronic audio/video recording of activities that take place during any law enforcement action. The term does not include a mobile video recording device when mounted inside a police vehicle (i.e., a dash cam). The term also does not include any form of electronic recording device worn by a law enforcement officer while acting in an undercover capacity. Nor does the term include an electronic recording device when used to comply with the requirements of Rule 3 :17 (electronic recording of station house custodial interrogations). Some BWC models may be turned on and remain in a standby or buffering mode, during which the device does not make a permanent record of images/sounds unless the officer activates the recording mode/function. With respect to these models, when the officer activates the recording mode/function, the device automatically preserves an electronic recording of the events that transpired a fixed period of time e(~. ., 30 seconds) before the recording mode/function was activated. This time-delay or “buffering” feature allows the device to capture data concerning the evendcircumstances that prompted the officer to activate the BWC. When an officer does not activate the recording mode/function, data captured while the device is in standby/buffering mode is overwritten automatically. Page 5 “Constructive authority” shall have the same meaning as defined in the Attorney General’s Use of Force Policy, except that the term shall apply only to constructive authority directed against a person who is subject to an investigative detention or arrest (~, “show me your hands,” “get out of the vehicle,” etc.), or directed against any person if the officer has un-holstered a firearm or a conducted energy device (ems., “move out of the way,” “get down,” etc.). d. “Force” shall have the same meaning as defined in the Attorney General’s Use of Force Policy. The term “force” shall include physical, mechanical, enhanced mechanical, and deadly force. “Investigation of a criminal offense” means any police activity pertaining to the investigation of an indictable crime, disorderly persons offense, or petty disorderly offense, including but not limited to responding to a report of a possible criminal offense; an investigative detention based on or leading to reasonable and articulable suspicion to believe that a criminal offense has been or is being committed; an arrest for a criminal offense; an interview of a potential witness to a criminal offense; or canvassing an area, neighborhood, or premises for potential witnesses to a criminal offense. £ “Law enforcement agency,” “agency,” or “department” means a law enforcement agency operating under the authority of the laws of the State of New Jersey. g. “Law enforcement officer” or “officer” means a sworn officer employed by a law enforcement agency. h. “School” means an elementary or secondary school. “Youth facility” means a facility where children assemble under adult supervision for educational or recreational purposes, such as day-care centers, youth camps, etc. 3. POLICE DEPARTMENT POLICIES GOVERNING DEPLOYMENT AND USE OF BWCs AND RECORDINGS 3.1 Promulgation of Police Department Policies and Procedures. Within 60 days of the issuance of this Directive, every law enforcement agency that already has equipped any of its officers with a BWC shall promulgate and enforce a policy, standing operating procedure, directive, or order, in a form as may be appropriate given the customs and practices of the agency, which shall comply with the policies, standards, and requirements of this Directive. In the event that an agency has not deployed BWCs prior to the issuance of this Directive, the agency shall not deploy or use BWCs without first promulgating a policy, standing operating Page 6 procedure, directive, or order in accordance with this paragraph. Any policy, standing operating procedure, directive, or order promulgated by an agency pursuant to this Directive shall provide that: 1) a law enforcement officer employed by the agency only may use a BWC system that has been issued and approved by the agency; 2) an officer equipped with a BWC must comply at all times with the requirements established in this Directive and in the agency’s policy, standing operating procedure, directive, or order issued pursuant to this Directive; 3) a BWC shall be used only in performance of official police duties and not for personal purposes; 4) no BWC recording shall be accessed, viewed, copied, disseminated, or otherwise used by a sworn officer or civilian employee of the agency except for an official purpose specified in this Directive; and 5) any sworn officer or civilian employee of the agency who knowingly violates the requirements of this Directive or the agency’s policy, standing operating procedure, directive, or order shall be subject to discipline. 3.2 Officers Authorized to Wear/LJse BWCs. The chief law enforcement officer of the department shall determine which officers will be equipped with BWCs, and shall determine the types) of duty assignments (ems., uniformed patrol, plainclothes detective, special/tactical operations deployments, etc.) when those officers will wear BWCs. In the case of a task force, team, or unit composed of officers from more than one law enforcement agency, the chief law enforcement officer of the agency overseeing the task force, team, or unit (ems., the County Prosecutor in the case of a countywide task force) shall determine whether and in what circumstances officers assigned to the task force, team, or unit will wear BWCs. An officer shall not wear a BWC unless he or she: 1) has been authorized to do so by the chief law enforcement officer of the department, or by the chief law enforcement officer of the agency overseeing amulti-agency task force, team, or unit; and 2) has received training on the proper care and use of the device in accordance with the requirements of this Directive and the policy, standing operating procedure, directive, or order promulgated pursuant to section 3.1. Nothing in this Directive shall be construed to require that officers assigned to any particular type of duty assignment will be equipped with BWCs. That decision is left to the department. Rather, this Directive provides foundational standards governing the use of BWCs by officers who have been directed by their agency to wear the device. Nothing in this Directive shall be construed to prevent an agency from developing a pilot program to determine when and in what circumstances/duty assignments the deployment of BWCs would be most efficacious. 3.3 Dut~to Inspect and Report Malfunctions. An officer equipped with a BWC shall be responsible for determining that the device is fully functional and that its battery is adequately charged at the start of the officer’s duty shift and before going into the field. If a malfunction is detected, the officer shall report the malfunction to a supervisor before going into the field. If the BWC malfunctions while out in the field, the Page 7 malfunction upon its discovery shall be reported to the officer’s supervisor as soon as it is safe and practicable to do so. 3.4 Applicability of and Compliance with Attorney General Law Enforcement Directive No. 2005-1. The decision to activate or de-activate a B WC is a police action subject to the rule established in Attorney General Law Enforcement Directive No. 2005-1, which strictly prohibits any form of racially-influenced policing. 3.5 Training. Every department that deploys BWCs shall designate one or more training officers and shall establish a training program to ensure that officers equipped with BWCs and officers and civilian employees who access or handle BWC recordings are familiar with the provisions of this Directive and the policy, standing operating procedure, directive, or order promulgated by the agency pursuant to section 3.1. 4. NOTICE THAT BWCs ARE DEPLOYED/ACTIVATED 4.1 General Policy Considerations. Eventually, BWCs are likely to become commonplace such that private citizens will expect that uniformed police officers are equipped with these devices, just as citizens today understand that patrol officers carry two-way radios, firearms, flashlights, o.c. spray, batons, and handcuffs as standard equipment. But until such time as the use of BWCs becomes that universal, it is appropriate to provide some form of notice to citizens so that they understand that anything said to a BWC-equipped officer may be electronically recorded, and that the images and sounds of the police-civilian interaction will be stored and accessible for future law enforcement use in accordance with the provisions of this Directive. Such notice to the public that BWCs are in use will help to achieve the above-noted benefits of discouraging persons from engaging in conduct that might provoke the use of law enforcement force, and discouraging persons from filing false complaints against police. 4.2 General Public Notice. Every police department that acquires/deploys BWCs shall take reasonable steps to inform the citizenry of the agency’s decision to deploy this technology. The department shall publish a statement that it deploys BWCs on its Internet web site or, if the department does not have its own web site, then on the municipality’s web site when feasible. The County Prosecutor may assist departments in providing general public notice of their deployment of B WCs pursuant to this section. The web site posting shall include a picture showing what the device looks like, and how it is to be Page 8 worn by uniformed officers or plainclothes detectives so that citizens will be able to determine whether an officer is equipped with the device. 4.3 Specific Notice to Certain Individuals During an Encounter. When an officer equipped with a BWC is required to activate the device during an encounter 1) with a civilian occurring inside the person’s residence, or 2) with a person reasonably believed to be a victim of a criminal offense, the officer shall verbally notify the persons) with whom the officer is conversing that the BWC has been activated unless it is unsafe or infeasible to provide such notification. If the officer decides not to provide notification of B WC activation because it is unsafe or infeasible to do so, the officer shall document the reasons for that decision in a report and/or by narrating the reasons on the BWC recording. The failure to verbally notify a person pursuant to this section shall not affect the admissibility of any statement or evidence. See section 15 (nonenforceability bythird parties). Nothing herein shall preclude a department from adopting a policy, standing operating procedure, directive, or order that requires a BWC-equipped officer to provide verbal notification in other specified circumstances, and/or that requires that an indicator light be illuminated when the BWC is activated. 4.4 Truthful Response to Specific Inquiries. If a civilian inquires of an officer whether the officer is equipped with a BWC, or inquires whether the device is activated, the officer shall answer truthfully unless the County Prosecutor or designee, or Director of the Division of Criminal Justice or designee, has expressly authorized the officer to make a covert electronic recording. Cf. section 2(a) (Directive does not apply to officers while operating in an undercover capacity, or while conducting/participating in a station house custodial interrogation electronically recorded in accordance with Rule 3 :17). Nothing in this section shall be construed to establish a basis for suppressing a statement or other evidence. See section 15 (non-enforceability by third parties). 5. STANDARDS GOVERNING THE ACTIVATION OF BWCs 5.1 BWCs Used Only in Performance of Official Duties. A BWC shall be activated only while in performance of official police duties and for the purpose of recording incidents, investigations, and police-civilian encounters involving those law enforcement activities specified in this Directive, or specified in a department’s policy, standing operating procedure, directive, or order promulgated pursuant to this Directive. A BWC shall not be activated while the officer is on break or otherwise is not actively performing law enforcement functions (ems., while eating meals, while in a restroom, etc.). A BWC shall not be activated or used by an officer for personal purposes, or when engaged in police union business. Nor shall a BWC be used to record conversations involving counseling, guidance sessions, personnel evaluations, or any similar supervisory interaction. Page 9 5.2 Circumstances When Activation by a Uniformed Officer Generally is Required. Except as otherwise expressly provided in section 7 or any other provision in this Directive, a uniformed officer equipped with a BWC shall be required to activate the device in any of the following circumstancesz as soon as it is safe and practicable to do so: a) the officer initiates an investigative detention (~ a Delaware v. Prouse traffic stop, a Terry v. Ohio criminal suspicion stop, or a checkpoint or roadblock stop); b) the officer is responding to a call for service and is at or near the location to which the officer has been dispatched; c) the officer is conducting a motorist aid or community caretaking check; d) the officer is interviewing a witness in the course of investigating a criminal offense; e) the officer is conducting a custodial interrogation of a suspect, unless the interrogation is otherwise being recorded in accordance with Rule 3:17 (electronic recordation of station house interrogations); ~ the officer is making an arrest; g) the officer is conducting a protective frisk for weapons; h) the officer is conducting any kind of search (consensual or otherwise); i) the officer is engaged in a police response to any type of civil disorder in circumstances where the officer is engaged with or in the presence of civilians and the officer or any other officer on the scene may be required to employ constructive authority or force; j) the officer uses constructive authority or force, or reasonably believes that Two or more of the below-listed activities are likely to occur during a single encounter or event. For example, a frisk ordinarily occurs after an officer already has initiated an investigative detention i.e., a “stop”), and a custodial interrogation typically occurs after the officer has arrested the person being interrogated. Although these specified activities often will co-occur and overlap, they are presented in this section to ensure complete coverage of the circumstances when a BWC must be activated. The specified activity that occurs first during an unfolding encounter will trigger the obligation to activate a BWC. As explained in section 5.4, once activated based upon the initiation of any of the listed police activities, the BWC generally must remain in operation until the police-civilian encounter is concluded i.e., until the officer is no longer interacting with or in the presence of the civilian), and not just while the officer is engaged in the specified activity that required activation. Page 10 constructive authority or force may be used in any encounter or situation not otherwise listed in this subsection based on specific and articulable facts warranting heightened caution that are documented by narration on the recording and/or in any investigation or incident report;3 k) the officer is transporting an arrestee to a police station, county jail, or other place of confinement, or a hospital or other medical care or mental health facility; or 1) the officer reasonably believes that any other officer on the scene has undertaken or is engaged in any of the foregoing police actions/activities. 5.3 Authority to Specify Additional Police Activities When Uniformed Officers Must Activate BWCs. Subject to the provisions of sections 5.1, 7, and 12 of this Directive, an agency may promulgate a policy, standing operating procedure, directive, or order that requires uniformed officers to activate a B WC when conducting a specified law enforcement activity not listed in section 5.2. For example, a department may require uniformed officers to electronically record consensual field inquiries (i.e., police-civilian interactions where an officer approaches a person under circumstances where a reasonable person would believe that he/she is free to leave and is under no obligation to converse with the officer), or may require uniformed officers to electronically record any police action where the officer would be required by departmental policy to file a report or to make a notation in the officer’s official patrol log. A department also might choose to require that B WCs be activated during a uniformed officer’s entire duty shift (excluding circumstances specified in sections 5.1 and 7 of this Directive). In that event, the department may specify circumstances when the BWC may be de-activated, provided that the department’s policy does not authorize deactivation in circumstances where this Directive requires that the BWC remain activated. To ensure that all citizens are treated uniformly when officers decide to electronically record an encounter, the department’s policy, standing operating procedure, directive, or order must limit See State v. Smith, 134 N_J. 599 (1994) (requiring “specific and articulable facts that would warrant heightened caution” before exercising police discretion to remove a passenger from a lawfully detained vehicle); see also note 1 (discussing atime-delay or “buffering” feature on some BWC models). When circumstances necessitating the use of constructive authority or force arise suddenly during the course of swiftly-developing events, it may not be safe and practicable for an officer to activate a BWC before employing constructive authority or force. Nothing in this Directive should be construed or applied in a manner that jeopardizes officer safety by distracting the officer’s attention from the immediate need to use such constructive authority or force. It should be noted that in many circumstances where the need to use constructive authority or force arises, the officer already would have initiated a police activity, such as a motor vehicle stop, “Terry” stop, or response to a call for service, that would have triggered the requirement to activate the BWC; see note 2 (recognizing that two or more police activities enumerated in this section often will co-occur during the course of a single police-citizen encounter) . Page 11 the discretion of officers in the field. When a department chooses to expand the list of specified law enforcement activities set forth in section 5.2, it shall clearly establish the objective circumstances that require activation. A department is not permitted under this section to authorize uniformed officers to exercise discretion based upon subjective factors. A department may not, for example, authorize an officer to activate a BWC “when otherwise appropriate,” or “when the officer deems it prudent.” Rather, the obligation to activate a BWC must be based on a specified type of police action or an objective event (ems., going into the field, conversing with a civilian during a consensual field inquiry, etc.). When the officer initiates the specified form of law enforcement activity, the officer automatically shall be required to activate his or her B WC as soon as it is safe and practicable to do so, subject to the exceptions and limitations set forth in this Directive. 5.4 Continuous Recording Pendin~pletion of Encounter. To ensure that the entire encounter/event/episode is recorded, when feasible, a BWC should be activated before a uniformed officer arrives at the scene of a dispatched call for service or other police activity listed in section 5.2. See also note 1. However, the officer need not begin recording at the moment he or she receives instructions from a dispatcher to respond to a call for service. Rather, the officer may delay activation until he or she is near the destination. Except as otherwise expressly provided in section 6 or any other provision of this Directive, when a BWC is required to be activated by a uniformed officer pursuant to this Directive, the device must remain activated throughout the entire encounter/event/episode and shall not be de-activated until it is concluded (~, the BWC-equipped officer has left the scene; all civilians involved in the encounter have left the scene; the officer has informed the dispatcher or a supervisor that the event has concluded; the event is “closed” on the department’s computer-aided dispatch (“CAD”) system, etc.). When a BWC is activated pursuant to section 5.2(k) (transport of arrestee), whether by an officer in uniform or in plain clothes, it shall remain activated at all times while the BWC-equipped officer is in the presence of the arrestee and until the arrestee is secured in the holding cell or processing room, or until custody of the arrestee has been transferred to county jail personnel, or until the arrestee is with hospital/medical/mental health personnel and the officer is no longer in the presence of the arrestee. 5.5 Provisions Governing Use of BWCs by Plainclothes Officers. Recognizing that detectives and other plainclothes officers perform different functions than uniformed officers, this Directive affords flexibility to agencies in determining when and in what circumstances plainclothes officers will wear and use BWCs, provided that the agency limits the discretion of individual officers in deciding when to activate/de-activate a BWC. Subject to the provisions of sections 5.1, 7, and 12 of this Directive, if an agency authorizes an officer to wear a BWC while in a plainclothes duty assignment, the agency’s policy, standing operating procedure, Page 12 directive, or order promulgated pursuant to section 3.1 shall specify the circumstances when a B WCequipped plainclothes officer shall be required to activate the device, which shall include the circumstances specified in section 5.2 (j) and (k) and section 5.6 (i.e., situations involving use of constructive authority or force, transport of an arrestee, deadly force events, and responses to emergency assistance requests). The agency’s policy, standing operating procedure, directive, or order also shall specify the circumstances when a plainclothes officer may de-activate the device. 5.6 Special Activation Rules Governing Deadly-Force Incidents and Other Exi e~nt Circumstances Where Officers Are in Dante Notwithstanding cnyother provision of this Directive, when an officer equipped with a B WC is dispatched to or otherwise goes to the scene of an incident knowing or reasonably believing that police deadly force has been or is being employed, or to a scene where an officer has requested emergency assistance (ems., an officer in distress, shots fired, etc.), the officer shall activate the BWC before arriving at the scene when feasible. Notwithstanding any other provision of this Directive, an officer while at the scene of a police deadly-force event orthe on-scene investigation of that event shall not de-activate the BWC unless instructed to do so by the assistant prosecutor or assistant or deputy attorney general supervising the investigation of the deadly-force incident pursuant to Attorney General Law Enforcement Directive No.2006-5, or his or her designee. Such instruction may be given telephonically by the assistant prosecutor, assistant or deputy attorney general, or designee supervising the investigation. 6. STANDARDS GOVERNING THE DE-ACTIVATION OF BWCs UPON THE REQUEST OF A CIVILIAN, WHEN DISCUSSING INVESTIGATION STRATEGY/PLANNING, OR ON INSTRUCTION OF A PROSECUTOR 6.1 De-Activation at the Request of a Civilian Providing Information/Cooperation. Notwithstanding section 5.4, and unless the agency adopts a policy that prohibits or restricts de-activation as may be authorized by this section, an officer may de-activate a B WC when a civilian conversing with the officer requests that the device be turned off under circumstances where it reasonably appears that the person will not provide information or otherwise cooperate with the officer unless that request is respected.4 The officer shall not suggest to the person that the BWC should be de-activated; nor shall the officer ask the person whether he or she would prefer that the BWC be de-activated. Rather, the request for de-activation must be self-initiated by the civilian. The officer may explain the consequences of de-activation (e.g:, evidence relevant to a criminal investigation will not be recorded). In deciding whether to de-activate the BWC, the officer shall C£ R. 3:17(b)(iv) (explaining that station house custodial interrogations must be electronically recorded unless “a statement is made during a custodial interrogation by a suspect who indicated, prior to making the statement, that he/she would participate in the interrogation only if it were not recorded; provided however, that the agreement to participate under that condition is itself recorded”). Page 13 consider the privacy and safety interests of the person requesting de-activation, whether the encounter is occurring in the person’s residence, and the need for the information or assistance that the person will provide only if the de-activation request is honored. 6.2 De-Activation at the Request of a Person Seekin~~y Medical Assistance. Notwithstanding section 5.4, and unless the agency adopts a policy that prohibits or restricts de-activation as may be authorized by this section, an officer may de-activate a B WC when a person, other than an arrestee, is seeking emergency medical services for him or herself or another and requests that the BWC be de-activated. In deciding whether to de-activate the BWC, the officer shall consider the privacy interests of the person requesting de-activation and the person in need of medical assistance. 6.3 Procedures for De-Activation Upon a Civilian’s Request. When anofficer de-activates a BWC pursuant to section 6.1 or 6.2, the following procedures shall be followed: 1) the colloquy between the officer and the civilian concerning the request for deactivationshall beelectronically recorded; 2) the officer before de-activating the BWC shall narrate the circumstances of the de-activation (e.g„ “I am now turning off my BWC as per the victim’s request.”); 3) the officer shall report the circumstances concerning the de-activation to his or her superior as soon as is practicable; and 4) the officer shall document the circumstances of the deactivation in any investigation or incident report concerning the incident under investigation. See also section 9.3 (notations (i.e., “tagging”) to indicate BWC recordings that raise special privacy or other issues). 6.4 Decision to Decline a Civilian’s De-Activation Request. If an officer declines a request to de-activate a BWC pursuant to section 6.1 or 6.2, the reasons for declining the request (ems., the officer believes that there is a reasonable possibility that it may be necessary to use constructive authority or force during the encounter) must be documented and shall be reported to the officer’s superior as soon as it is safe and practicable to do so, unless the agency’s policy prohibits de-activation authorized by section 6.1 or 6.2. In the event that the officer declines a de-activation request, the officer immediately shall inform the person making the request of that decision. An officer shall be prohibited from misleading the person making the de-activation request pursuant to section 6.1 or 6.2 into believing that the BWC has been turned off when in fact it is operating unless the County Prosecutor or designee or the Director of the Division of Criminal Justice or designee expressly has authorized covert recording. Page 14 6.5 De-Activation During Criminal Investigation Strate~y/Plannin~ Discussions. Notwithstanding section 5.4, and subj ect to the requirements of section 5.6, unless the agency adopts a policy that prohibits orrestricts de-activation as maybe authorized by this section, a BWCequipped officer may de-activate a BWC while participating in a discussion pertaining to criminal investigation strategy and planning (~, to consider what investigative techniques to pursue, such as what questions to pose to a suspect or witness, whether to summon adrug/explosives detection canine, whether to apply for a search warrant, whether to request permission to conduct a consent search, or to conduct another type of warrantless search, etc.), provided that the strategy/planning discussion is not conducted in the immediate presence of a civilian (i.e., under circumstances where a civilian might overhear the strategy discussion), and further provided that the BWC-equipped officer is not actively engaged in the collection of physical evidence (i.e., conducting a search). When an officer de-activates a BWC pursuant to this section, the officer shall narrate the circumstances of the de-activation (e.g_, “I am now turning off my BWC to discuss investigative strategy with my supervisor.”). 6.6 De-Activation on Instruction From Prosecutor. Notwithstanding section 5.4, an officer may de-activate a BWC when specifically authorized to do so by an assistant prosecutor or assistant or deputy attorney general for good and sufficient cause as determined by the assistant prosecutor or assistant or deputy attorney general. When an officer de-activates a B WC pursuant to this section, the officer shall narrate the circumstances of the de-activation indicating the assistant prosecutor or assistant or deputy attorney general who authorized the de-activation (~, “I am now turning off my BWC as per the instruction of assistant prosecutor (insert name).”). 6.7 Re-activation When Reason for De-Activation No Loner Exists. In any instance where a BWC was de-activated pursuant to section 6.1, 6.2, 6.5, or 6.6, the device shall be re-activated as soon as it is safe and practicable to do so if and when the circumstances justifying de-activation no longer exist (ems., the interview of the person requesting de-activation is completed), and the officer would otherwise be required to activate the BWC (ems., where the officer proceeds to other investigative activities that are required to be recorded pursuant to this Directive). 6.8 Re-Activation When Actual Law Enforcement Force is Authorized. Notwithstanding snyother provision of this Directive, in any instance where a BWC was deactivated pursuant to section 6.1, 6.2, 6.5, 6.6, or any other provision of this Directive, or deactivated pursuant to any policy, standing operating procedure, directive, or order issued by a department, if the circumstances develop so that an officer is authorized to use force, the BWC shall be re-activated as soon as it is safe and practicable to do so. Page 15 7. CIRCUMSTANCES WHEN BWC ACTIVATION/USE IS SUBJECT TO SPECIAL CONDITIONS/RESTRICTIONS 7.1 ~ecial Restrictions When Recording; in Schools, Healthcare/Treatment Facilities, and Places of Worship. Notwithstanding sections 5.2 and 5.3 of this Directive, and except as otherwise required by section 5.6, unless the officer is actively engaged in investigating the commission of a criminal offense, or is responding to an emergency, or reasonably believes that he or she will be required to use constructive authority or force, the officer shall not activate a BWC, or shall de-activate a BWC that has been activated, while the officer: 1) is in a school or youth facility or on school or youth facility property under circumstances where minor children would be in view of the BWC; 2) is in a patient care area of a healthcare facility, medical office, or substance abuse treatment facility under circumstances where patients would be in view of the BWC; or 3) is in a place of worship under circumstances where worshipers would be in view of the BWC. See also section 9.3 (notation (i.e., “tagging”) of certain events/encounters raising privacy or other special issues). If an officer is required to de-activate the BWC in accordance with the provisions of this section, the officer shall narrate the reason for de-activation (~, “I am entering a school building where children are present.”). The BWC shall be re-activated as soon as it is safe and practicable to do so if and when the circumstances requiring de-activation no longer exist (ems., the officer is conversing with an adult as part of a criminal investigation while in a place within the school where children would not be in view of the BWC). In the event that a BWC captures the image of a patient in a substance abuse treatment facility, the County Prosecutor or designee, or Director of the Division of Criminal Justice or designee, shall be notified to ensure compliance with all applicable federal laws and regulations providing for the confidentiality ofsubstance abuse treatment information. See 42 U.S.C. § 290dd-2, 42 C.F.R. §23.1 to 23.41. The recording shall not be accessed without the permission of the County Prosecutor or designee, or Director or designee. (Note that destruction of the recording would be inappropriate until it has been determined that it had not captured exculpatory information that must be provided to a defendant in discovery.) 7.2 ~ecial Restrictions When Undercover Officers or Confidential Informants Mav Be Recorded. Notwithstanding the provisions of sections 5.2 and 5.3 of this Directive, and except as otherwise required by section 5.6, an officer shall not activate a BWC, or shall de-activate a BWC that has been activated, if the officer knows or reasonably believes that the B WC would capture the image of an undercover officer or confidential informant or otherwise would pose a risk to the safety of an undercover officer or confidential informant, unless such activation is expressly authorized by a supervisor, or unless the exigency of the situation and danger posed to an officer (ems., active Page 16 shooter, actual use of police force, officer in distress, etc.) require that the encounter/incident be recorded, in which event the officer shall inform his or her supervisor that the image of an undercover officer or confidential informant was recorded. See also section 9.3 (notation or “tagging” to indicate a BWC recording that raises special issues), and section 9.5 (prosecutor’s authority to seek protective order when complying with discovery obligations). Notwithstanding the foregoing general rule prohibiting the recording of an undercover officer or confidential informant, in the event of a planned arrest/search warrant execution where it is expected that an undercover officer or confidential informant would be present (ems., a raid where the undercover operative will be arrested to preserve his or her cover), the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee, may provide specific instruction to any BWC-equipped officers participating in the operation on whether to activate their devices. The BWC shall be activated/re-activated as soon as it is safe and practicable to do so if and when the risk of capturing the image of an undercover officer or confidential informant no longer exists. 7.3 ~ecial Precautions When a BWC Recording May Reveal Tactical Operations Information. In the event that a BWC worn during the execution of tactical operations (~, “Special Operations” or “SWAT” operations, execution of arrest and/or search warrant, etc.) records confidential tactical information the disclosure of which might j eopardize future operations or officer safety (eg., verbal codes or hand signals used to communicate information or instructions, techniques for interior movements and clearing rooms, techniques to convince persons to open doors, etc.), the recording shall be “tagged” in accordance with section 9.3. See N.J.S.A. 47:1A-1.1 (exempting from disclosure under the Open Public Records Act “security measures and surveillance techniques which, if disclosed, would create a risk to the safety ofpersons”); N.J.A.C.13:1 E-3.2 (2) (exempting records that may reveal “surveillance, security, tactical, investigative, or operational techniques”); see also section 9.5 (prosecutor’s authority to seek protective orders when complying with discovery obligations). 7.4 Special Restrictions on Recording in Courtrooms. An officer shall not activate a BWC while in a courtroom during court proceedings, unless the officer is responding to a call for service or is authorized to use constructive force or authority, or unless such activation is expressly authorized by the judge. 7.5 De-Activation/Removal of BWC From Alcohol Breath Testing If the BWC model selected by a department produces radio-frequency interference while activated or while in standby mode, see note 1, the device shall be de-activated while in the area where an electronic alcohol breath testing device is being used, or, as necessary, shall be removed from the area where such device is being used. Nothing herein shall be construed to preclude the Page 17 use of a BWC to record the behavior of a person arrested for driving while intoxicated other than while the person is in the breath-testing area while the electronic breath testing device is being operated. If this provision requires de-activation of a BWC, the officer shall narrate the reasons for de-activation (~, “I am de-activating the BWC because the suspect is about to take a breath test.”), and the BWC shall be re-activated when safe and practicable to do so following the completion of the breath testing operation. 7.6 Restrictions on Using BWCs With Enhanced Audio/Visual Capabilities. Subject to the provisions of Section 12 of this Directive, if a department acquires a BWC with enhanced audio/video capabilities that allow it to record an image or conversation that could not be seen or heard by the officer wearing the device (e.g„ infrared night vision or thermal imaging, sound amplification that would record conversations occurring at a remote distance), that feature/capability shall not be used without the express approval of the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee, in accordance with any applicable legal requirements. 8. RETENTION OF BWC RECORDINGS The policy, standing operating procedure, directive, or order promulgated by a law enforcement agency pursuant to section 3 of this Directive shall specify the period of time during which a BWC recording shall be retained. The retention period shall not be less than 90 days, and shall be subject to the following additional retention periods: a) when a BWC recording pertains to a criminal investigation or otherwise records information that may be subject to discovery in a prosecution, the recording shall be treated as evidence and shall be kept in accordance with the retention period for evidence in a criminal prosecution. b) when a BWC records an arrest that did not result in an ongoing prosecution, or records the use of police force, the recording shall be kept until the expiration of the statute of limitations for filing a civil complaint against the officer and/or agency. c) when a BWC records an incident that is the subject of an internal affairs complaint, the recording shall be kept pending final resolution of the internal affairs investigation and any resulting administrative action. Page 18 9. STANDARDS TO ENSURE SECURE STORAGE AND ACCESSIBILITY OF BWC RECORDINGS 9.1 Procedures to Protect Inte~ty of BWC Recordings. Every department that deploys BWCs shall establish and maintain a system and procedures to ensure the integrity and proper handling and storage of all BWC recordings. This system shall include provisions to: 1) ensure that all recordings are uploaded to a secure data storage system in a timely fashion; 2) prevent tampering with or deletion of recorded data both before and after downloading from the BWC and uploading to the storage system; 3) prevent unauthorized access to stored BWC recordings; 4) document all instances where BWC recordings are accessed, viewed, copied, disseminated, or deleted; and 5) permit auditing of all instances where BWC recordings are accessed, viewed, copied, or deleted. 9.2 Capacity to Locate Specific BWC Recording Every department that deploys BWCs shall establish and implement a system that permits the agency to locate and retrieve all recordings associated with a specific incident/event, investigation, case, or criminal charge. Accordingly, every department deploying BWCs shall be required to develop and maintain a BWC control ledger or log, which may be computerized. Every department that deploys BWCs shall establish and implement a system to ensure that relevant BWC recordings are provided in discovery in a timely fashion. The system established by the agency should include a provision to ensure that police arrest/incident/continuation reports indicate whether the incident or investigative activity described in the report was electronically recorded by a BWC. Police reports should, when feasible, indicate the corresponding BWC control ledger/log number, and the BWC control ledger/log should cross-reference the incident case number. Copies of B WC recordings made for the purpose of complying with the State’s discovery obligations shall be provided to the prosecutor in a readily available media format approved by the Director of the Division of Criminal Justice in consultation with the Administrative Office of the Courts. The best practices developed pursuant to section 13 of this Directive shall include recommended practices and procedures to address the logistical issues that may arise in fulfilling the requirements of this section. 9.3 Provisions to Identi . (“Ta~~) Recordin~;s That Raise Special Privacy or Safety Issues. To identify BWC recordings that may raise special privacy or safety issues, every department that deploys BWCs shall establish and implement a system that permits a notation (i.e., “tagging”) to be made when the recording: 1) captures the image of a victim of a criminal offense; 2) captures the image of a child; 3) was made in a residential premises (~, a home, apartment, college dormitory room, hotel/motel room, etc.), a school or youth facility, a healthcare facility or medical Page 19 office, a substance abuse or mental health treatment facility, or a place of worship; 4) captures a conversation with a person whose request to de-activate the BWC was declined; 5) captures a special operations event or execution of an arrest and/or search warrant where confidential tactical information (~, verbal codes and hand signals used to give direction to officers, techniques for interior movements and clearing rooms during execution of a warrant, techniques for convincing persons to open doors during warrant execution, etc.) may have been recorded; 6) captures the image of an undercover officer or confidential informant; or 7) captures the screen of a police computer monitor that is displaying confidential personal or law enforcement sensitive information. See also section 7.1 (requiring notice to the prosecutor when a BWC captures the image of a patient at a substance abuse treatment facility). Subject to the provisions of section 12 of this Directive, an agency’s policy, standing operating procedure, directive, or order issued pursuant to section 3.1 may specify additional circumstances when a BWC recording will be “tagged.” 9.4 Approval for Access to “Tagged” BWC Recordings. A BWC recording tagged pursuant to section 9.3 shall not be accessed, viewed, copied, disseminated, or otherwise used without first obtaining the permission of the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee. Except for recordings tagged pursuant to section 7.1 (when a BWC captures the image of a patient at a substance abuse treatment facility), and subject to the requirements of section 11.1 (requiring notice to County Prosecutor or Director prior to complying with a subpoena, court order, or request for records under the Open Public Records Act or the common law right to know), the County Prosecutor or Director may authorize the chief of the department, and one or more superior officers or duty positions (e..g„ head of the detective bureau) identified by the chief of the department, to grant permission pursuant to this section to access, view, copy, disseminate, or otherwise use BWC recordings tagged pursuant to section 9.3. See also section 10.1 (specifying the purposes for which access to a BWC recording is permitted). 9.5 Compliance with Discovery Obligations Relating to BWC Recordings That Mi h~pose Officers or Other Persons to Dante If disclosure of a BWC recording as part ofthe State’s discovery obligations in a prosecution might present a danger to any officer or civilian (~, reveal an undercover officer, confidential informant, surveillance site, etc.), or might reveal confidential tactical information the disclosure of which might jeopardize future operations or officer safety (~, verbal codes or hand signals used to communicate information or instructions, techniques for interior movements and clearing rooms during execution of warrant, techniques for convincing persons to open doors during warrant execution, etc.), the County Prosecutor or designee, or Director of the Division of Criminal Justice or designee in cases prosecuted by the Division, shall, in the exercise of sound prosecutorial discretion, take such steps as are appropriate and authorized by law and/or Court Rule to protect the Page 20 information from disclosure, such as by seeking a protective order from the court. See section 7.3 (“tagging” of such BWC recordings). 10. RESTRICTIONS ON ACCESS TO, USE, AND DISSEMINATION OF BWC RECORDINGS 10.1 ~ecified Authorized Purposes for Accessin~/i~sin~ Stored BWC Recordings. No law enforcement officer or civilian employee of a law enforcement agency shall access, view, copy, disseminate, or otherwise use a BWC recording except for an official purpose as specified in this section. Access to and use of a stored BWC recording is permitted only: a) when relevant to and in furtherance of a criminal investigation or prosecution; b) when relevant to and in furtherance of an internal affairs investigation; c) when relevant to and in furtherance of a management review process to identify circumstances indicating possible police misconduct or to determine the existence of a pattern or practice of possible misconduct; d) to assist the officer whose BWC made the recording in preparing his or her own police report, subject to the restrictions established in section 10.2; e) when relevant to a supervisor’s review of an officer’s actions as part of the supervisory process authorized by the agency; ~ to show to a civilian who intends to file a complaint against an officer to demonstrate what actually occurred during the encounter so that the person can make an informed decision whether to file the complaint; g) to comply with the State’s discovery obligations in prosecutions pursuant to the Rules of Court; h) to comply with any other legal obligation to turn over the recording to a person or entity;5 i) to show or disseminate the recording to a civilian or a non-law enforcement entity, 5 When responding to a subpoena or court order, or a request pursuant to the Open Public Records Act or common law right to know, disclosure of a BWC recording under this paragraph is permitted only after providing notice to the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee, pursuant to section 11 of this Directive. Page 21 or to disseminate it to the public, where the County Prosecutor or designee, or Director of the Division of Criminal Justice or designee, determines that disclosure to that particular person entity or the public is warranted because the person’s/entity’s/public’s need for access outweighs the law enforcement interest in maintaining confidentiality; j) for training purposes, provided that the recording is edited so that the identity of individuals depicted in the recording cannot be determined by persons viewing the training video unless the depicted individuals have consented to the recording being used for training purposes; k) to conduct an audit to ensure compliance with this Directive and a department’s policy, standing operating procedure, directive, or order promulgated pursuant to this Directive; 1) to enhance officer and public safety by providing intelligence information in preparation for araid/warrant execution (~, by providing information about the layout of a premises to be searched), when such use is approved by the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee; or m) any other specified official purpose where the County Prosecutor or designee, or Director of the Division of Criminal Justice or designee, finds in writing that good and sufficient cause exists to authorize access to a particular BWC recording. 10.2 Authorization for Access to BWC Recordings Related to Use-of-Force Investi L at~ ions• The assistant prosecutor or assistant or deputy attorney general overseeing a police use-offorce investigation pursuant to Attorney General Law Enforcement Directive No. 2006-5, or his or her designee, may in the exercise of sound discretion authorize a civilian or law enforcement witness to be given access to or view a BWC recording of the incident under investigation. To ensure the integrity ofinvestigations ofpolice-involved shootings and other use-of-force incidents and to avoid possible contamination of a witness’s personal recollection of events that could undermine his or her credibility as a witness, notwithstanding any other provision of this Directive, no civilian or law enforcement witness, including the principals) of the investigation, shall be given access to or view a BWC recording of the incident, or a BWC recording of the response or on-scene investigation of the incident, without the express prior approval of the assistant prosecutor, assistant or deputy attorney general, or designee. 10.3 Documenting Access to Stored BWC Recordings. Each department that deploys a BWC shall maintain a record of all access to stored BWC Page 22 recordings pursuant to this Directive. The department’s record keeping system shall document the following information: a) the date and time of access; b) the specific BWC recordings) that was/were accessed; c) the officer or civilian employee who accessed the stored BWC recording; d) the person who approved access, where applicable; and e) the reasons) for access, specifying the purpose or purposes for access authorized pursuant to section 10.1 or section 10.2, and specifying the relevant case/investigation number, where applicable. 11. PUBLIC DISCLOSURE OF BWC RECORDINGS 11.1 Notice to Prosecutor of Subpoena, Court Order, or OPRA/Common Law Request. Any agency receiving a subpoena, court order, or request pursuant to the Open Public Records Act, or the common law right to know, for a BWC recording shall, within one business day of receipt of such subpoena, court order, or request, and before complying with it, provide notice to the County Prosecutor, or to the Division of Criminal Justice where the recording was made by a state-level law enforcement agency. Such notice shall state clearly the deadline by which a response must be made. 11.2 Disclosure of BWC Recordings Pertaining to Criminal Investi ations. Except as otherwise provided in section 10.1, a BWC recording of an event or encounter that involves an investigation of a criminal offense as defined in section 2(e) shall not be shared with or provided or shown to any person, entity, or government agency, other than a law enforcement agency or officer or authorized civilian employee of such agency, unless such disclosure is required by the Rules of Court governing discovery in prosecutions, or by a court order, or unless the law enforcement agency in consultation with the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee, determines that the person’s/entity’s/non-law enforcement agency’s/public’s need for access outweighs the law enforcement interest in maintaining confidentiality. 12. AUTHORITY OF COUNTY PROSECUTOR TO IMPOSE ADDITIONAL REQUIREMENTS Nothing in this Directive shall be construed to in any way limit the authority of a County Page 23 Prosecutor to issue directives or guidelines to the law enforcement agencies subject to his or her superv