Body Worn Cameras: New Law, New Considerations for Police Departments

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

When I first started in police work, our police department had cabinets full of VHS tapes from our dash-cameras. Six years later, we had a three-ring binder full of DVDs. But today, like many police departments, we are researching the costs associated with the implementation of Body Worn Cameras (BWCs). Under RSA 105-D, we now have specific requirements that govern their use.

On or Off? Summary of 105-D

RSA Chapter 105-D does not require BWC use; however, it provides specific procedures that all police agencies in New Hampshire must follow should they implement BWCs. In short, an officer equipped with a BWC, who is performing a law enforcement function or activity, is required to inform individuals they are being recorded. It is clear that a person can decline to be recorded in a private place (e.g., a private residence, bathroom, etc.); in fact, the officer is required to inform individuals that they can refuse to be recorded, and must deactivate the BWC if they do refuse. Where the recording has been declined, the video must be permanently distorted or obscured. But there are exceptions. For example, if an officer shows up to a residence with an arrest or search warrant, the officer is not required to turn off the BWC. In addition, if a judicially-recognized exception to the warrant requirement is met, deactivation of the BWC is not required. In general, people can object, but officers are not mandated to turn the BWC off, unless an exception is met.

A person reporting a crime anonymously may also decline to be recorded. There are other times where an officer will not activate a BWC—commonly referred to as “community care-taking functions”— such as giving directions, assisting a lost child looking for his/her parents, conducting well-being checks on sick or elderly persons, or, in short, any activity that does not involve enforcing laws.

For officers out on the street, there will be a learning curve as to when the BWC must be turned on and off. RSA 105-D states that at a minimum, officers should turn on the BWC as soon as they arrive on scene, but may turn it on sooner if department policy requires, and that the BWC should not be turned off until the incident is over, unless an exception is met.

Consider the following scenario: An officer equipped with a BWC responds to a domestic dispute at a residence. When the officer arrives, the officer enters the residence and informs the residents of the BWC and advises them they can decline to be recorded. The residents decline recording, and the officer shuts the BWC off. If the officer determines, in the course of the investigation, that a warrantless arrest for domestic assault will occur, the officer will re-activate the BWC for the arrest. Later, the first portion of the video—where the residents declined recording, prior to the warrantless arrest—will need to be redacted.

Retention Schedule

Paragraph XVI requires recordings to be “permanently destroyed by overwriting or otherwise no sooner than 30 days and no longer than 180 days from the date the images were recorded.” However, the recording must be kept for a minimum of three years when it captures images of the following:

• Any action by a law enforcement officer that involves the use of deadly force or deadly restraint.
• The discharge of a firearm, unless for the destruction of an animal.
• Death or serious bodily injury.
• An encounter about which a complaint has been filed with the police department within 30 days after the encounter.

Finally, a recording that is being retained by the law enforcement agency as evidence in a civil or criminal case or as part of an internal affairs investigation or as part of an employee disciplinary investigation must be kept as long as is necessary for the purposes of the case and/or investigation.

Use and Handling of Recordings

The BWC law gives police departments the authority to use BWC recordings as a training tool, provided the person’s image and vehicle license plate numbers are permanently deleted, distorted, or obscured, or the person has been given an opportunity in writing to decline to have his or her image or vehicle registration used. These training videos may only be used by officers for training purposes only.

The last section of this law also states that any recording taken in violation of RSA 105-D, or any other law, shall be immediately destroyed and not be admissible in any criminal, civil, or administrative proceeding, except for an officer for violating the provision of this chapter. In a proceeding against an officer, the recording shall be destroyed at the conclusion of the proceeding and all appeals.

Finally, the law states that except as authorized in this law, no person (including officers and supervisors) shall edit, alter, erase, delete, duplicate, copy, subject to automated analysis or analytics of any kind, including but not limited to facial recognition technology, share, display, or otherwise distribute in any manner any BWC recordings or portions thereof. However, this section does allow the sharing of still images captured by the BWC to help identify individuals or vehicles suspected in being involved in a crime.

Other Applicable Laws

In relation to this new law, legislators also revised two other laws: RSA Chapter 91-A, (the Right-to-Know Law), and RSA Chapter 570-A (New Hampshire’s Wiretapping and Eavesdropping Statute).

• Revisions to Right-to-Know Law (RSA 91-A)

RSA 91-A:5 provides that any video footage from a BWC is exempt from release under the Right-to-Know Law if used in accordance with RSA 105-D, but there are exceptions. Videos that show any restraint or use of force by officers, the discharge of a firearm, or an encounter that results in an arrest for a felony level offense must be disclosed; however, there is an exception to those exceptions: Recordings or parts of a recording that would be an invasion of privacy of any person or which are otherwise exempt from disclosure under another law are exempt from disclosure.

• Revisions to Wiretapping Statute (RSA 570-A)

New language in RSA Chapter 570-A makes it lawful for a law enforcement officer to take a body-worn recording as long as the requirements of RSA 105-D are met.

The Cost

RSA 105-D requires that access to all BWC files be audited to ensure that only authorized users are accessing the files for law enforcement purposes only. Paying for cloud storage and the purchase of a software solution to comply with access control of these digital files present significant costs. The number of cameras and equipment will be dependent on the department size. For smaller departments, the costs could be as low as $6,000 for the first year (for the purchase of equipment, software and cloud storage), and then $2,000 for the following two to four years (for cloud storage and software licenses), and up to $20,000 for an all-in-one package, depending on the contract with the solution provider. Most companies that offer the cloud storage and software solutions also offer the camera hardware and accessories as a package deal.

• Service Providers

Some of the companies that are pushing their total BWC solution include Watchguard, Taser (now Axon), and Safariland (Vievu). Complete Integrated Solutions offers a different solution—their product package supplies the cameras, software and a server to host the complete BWC solution “in house.” This is a viable solution for departments that are not on-board with cloud storage. Axon now offers their cameras, software, and cloud storage free for a year, with the hopes that departments will buy in to their system.

• The “Go-it-Alone” Approach

By purchasing cameras individually, and not using a complete solution offered by one of these companies, police departments can use existing resources to comply with RSA Chapter 105-D. Any police department that uses a Windows Active Directory domain network could use network auditing policies and access control lists/security groups in order to comply with the law for purposes of tracking and auditing the digital files.

There are other associated costs involved with this “go it alone” approach, such as an increase in hard drive storage space, and then even more storage space for redundant backups, and the time and resources it will take to manually delete files in compliance with the retention schedule. This does not include the cost of purchasing video editing software for the redaction of videos that are required by the statute, or the cost of network bandwidth to process video files, possibly restricting the day-to-day demands on the network. Last, but not least, the costs associated with training employees to implement and use all of these software solutions, versus hiring outside IT Support. It may be a little cheaper to use this “go it alone” plan, but there are some things that you would not get, such as 24/7 tech support, contract covered extended equipment warranties, ease of use and increased time and efficiency.

In conclusion, BWCs are coming to New Hampshire, and although a few departments have them already, more departments have yet to implement them. Successful implementation requires research and preparation, and it will be up to each police department to determine the best way to meet the requirements of RSA 105-D and the needs of the department.

John Sable is a Lieutenant with the Sandown Police Department.  He can be reached at town offices at 603.887.3646.