Challenges persist in accessing bodycam footage

Due in part to calls for increased transparency in law enforcement, bodyworn cameras (BWC's) have become a regular part of most police officers' daily equipment. Evolving California law provides hope that BWC footage will become increasingly available to the public, including for "critical incidents" like officer-involved shootings. But despite these welcome changes, the fact remains that most victims of police misconduct must still resort to substantive civil-rights lawsuits to access BWC footage of their own incidents.

Bodycam videos in the possession of local agencies are public records, and so the CPRA, Government Code section 7921.000 et seq., applies. Under the California Constitution, the CPRA is to be "broadly construed" insofar its statutory scheme "furthers the people's right of access." Cal. Const. art. I, section 3(b)(2).

But by its own terms, the CPRA exempts "investigatory records" from disclosure. See Government Code section 7923.600(a). The California Supreme Court has held that records related to investigative stops and encounters--which would include BWC's under most circumstances--can be withheld under the CPRA. See Haynie v. Superior Ct., 26 Cal. 4th 1061, 1070 (2001).

And agencies do just that. Experienced civil-rights practitioners know that cities and counties cite Haynie as a matter of course, denying requests for video under the CPRA accordingly.

In response to more calls for transparency, Government Code Section 7923.625 was amended to require disclosure of video of "critical incidents" - defined as those "involving the discharge of a firearm" or the "use of force" that "resulted in death or in great bodily injury." See section 7923.625(e). But a host of exceptions to disclosure remain, and redactions are still permitted under a variety of circumstances. Id. Moreover, "the CPRA does not govern the retention of public records ... [and it] does not require public agencies to retain records that are potentially responsive to a public records request[.]" City of Gilroy v. Superior Ct. of Santa Clara Cnty., 96 Cal. App. 5th 818 (2023) (emphasis provided). Cf. Penal Code section 832.18(b) (requiring retention but not disclosure of certain BWC footage).

Consistent with the disclosure of "critical incidents" described in the Government Code, California Penal Code section 832.7 has been amended to require ("notwithstanding [the CPRA] or any other law") the disclosure of "any record relating to" incidents involving an officer's "discharge of a firearm" or "use of force ... that resulted in death or in great bodily injury" against a member of the public. Penal Code section 832.7(b)(1)(A)(i-ii). Further, records related to a "sustained finding" of excessive force, sexual assault, serious dishonesty, discrimination, or unlawful searches and seizures are discoverable under the CPRA. Id. at 832.7(b)(1)(A)(iii-iv), 832.7(b)(1)(B)-(E). In some good news for civil-rights advocates, the statute applies retroactively, even to records predating its enactment. See Ventura County Deputy Sheriffs' Association v. County of Ventura, 61 Cal.App.5th 585, 594 (2021).

But there are still loopholes. The statute includes broad exceptions that may prove tantalizing to agencies seeking to avoid scrutiny, see 832.7(b)(6) (permitting redactions for "physical safety"), and 832.7(b)(7) (permitting redactions "where ... the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.").

And bodycam recordings can still be withheld under the CPRA during criminal or administrative investigations. See 832.7(b)(8). Moreover, the law is clear that CPRA's general "catchall exception" for non-disclosure could still apply in some circumstances, Becerra v. Superior Ct., 44 Cal. App. 5th 897, 926-27 (2020).

But perhaps most importantly, the statute itself simply fails to capture a great deal of potential police misconduct. Remember, sustained findings of misconduct are statutorily required before BWC video related to excessive force, sexual assault, or unlawful seizures would be discoverable. And sustained findings are statistically uncommon--and seem vanishingly rare to many people in overpoliced communities.

Ultimately, agencies can usually avoid CPRA suits from persons seeking BWC footage. Under the Government Code section 945 et seq., a victim of police misconduct must file a tort claim within six months of an incident to preserve their right to sue, and then has six months to file a lawsuit once a claim is denied. The result is that a civil rights lawsuit would ordinarily commence before a litigant could bring a separate action to enforce the CPRA--and thus become "pending litigation" either prohibiting disclosure on that basis or making the CPRA suit moot.

This means that for many victims of misconduct, the only alternative is to persuade a civil-rights attorney to file suit without the benefit of BWC footage that already exists--video that is statutorily mandated, and that ostensibly exists to discourage police misconduct while promoting transparency. The result is that some cases get filed that shouldn't - and would not have been, had the attorney had the benefit of BWC footage first. And some, perhaps many, meritorious civil-rights cases go unvindicated, because attorneys are unwilling to file in the blind. Both results undermine confidence in the justice system, and reflect poorly on its participants. Until BWC footage is more readily available to vindicate civil-rights violations, the promise of policy transparency through BWC technology remains unrealized.

Timothy A. Scott is a trial lawyer at McKenzie Scott PC.