Smile, You're on Camera

Governor Murphy recently signed two bills governing the use of body worn camera (BWC) by law enforcement officers in New Jersey. Although many law enforcement agencies already use BWC, these bills mandate use by most uniformed State, county, or municipal patrol law enforcement officers.  

Subject to limited exception, covered officers are expected to initiate use of BWC while performing their duties. Those engaging in undercover assignments; those working in an administrative capacity; those working with confidential informants; or those performing union representation duties are generally exempt from the BWC requirements. Certain officers in county prosecutor’s offices are also exempt.

For covered officers, audio and video recordings must be used when responding to a call for service or from the start of any other law enforcement interaction between the officer and the public. If safe to do so, officers are expected to notify subjects they are being recorded; any decision not to notify the subject must be documented by the officer. Under existing law, officers are typically expected to leave the BWC activated until the issue is resolved and they leave the scene.

BWC use is not mandated in all instances. To the contrary, officers' permissive and obligatory deactivation of BWCs is outlined by the new legislation and existing Attorney General Guidelines. For example, an officer may deactivate a BWC at the request of an individual seeking emergency medical services, so long as the individual is not the arrestee. Likewise, officers visiting a school for reasons other than investigating a crime or responding to an emergency, or who do not reasonably believe they will need to exercise force, are not to activate their BWC if minor children are in view of the BWC. If the BWC was activated at the time of arrival, officers are expected to deactivate the BWC if those conditions are met. Similar protections exist for patients in healthcare facilities, treatment facilities and houses of worship.

As with the prior voluntary use of BWCs, captured footage must be retained for specific period of time. Although the law is not effective for another seven months, the new laws require all local law enforcement agencies to develop policies governing data retention. At a minimum, routine BWC footage must be retained for 180 days from the date of recording. Any contract for data retention must include this minimum retention period. In addition to this statutory minimum for routine video footage, the law also includes specific provisions for retention when BWC footage captures incidents such as arrests for criminal behavior or attempted criminal behavior, use of force incidents, or when complaints are made by an individual on the footage. In addition, a longer retention period attaches when the footage as possible evidentiary value or when the video recording may offer exculpatory value. The laws likewise govern when the retained footage is, and is not, subject to release under the Open Public Records Act.

Bottom Line

Local law enforcement agencies should ready themselves for the new mandates and update any existing policies to conform with the laws’ requirements. For local law enforcement agencies who do not currently use BWCs, the purchasing process should begin shortly as the law becomes effective in just seven months. For additional guidance on the BWC mandates, please contact Jennifer Roselle via email in the firm’s Labor Practice Group.