Legislation that allows police officers to view body-worn camera (BWC) footage before writing reports was signed into law by Governor Murphy. Community leaders, defense attorneys, and civil rights organizations had urged Gov. Murphy to veto S3939/A5864 because it would undermine civil rights, give undue power to police to explain away misconduct, and weaken the utility of officer memory.
Despite strong opposition from grassroots activists and community partners, the bill was fast-tracked at the urging of police lobbyists and passed by the Legislature, where organizations, including the ACLU-NJ, testified in opposition. The bill was then conditionally vetoed by Gov. Murphy, passed again by the Legislature, and signed into law today.
“Body-worn cameras can be an invaluable tool for accountability, but without sensible and fair policies for their use, they’re simply tools for surveillance that give police unfair advantages over the public. To grapple with the injustices of excessive police power, we need to work toward eliminating unfair practices of law enforcement, not emboldening them,” said Sarah Fajardo, Policy Director for the ACLU-NJ.
The legislation undermines a law signed by Governor Murphy on November 24, 2020, and a directive from the Office of the Attorney General for New Jersey implemented on May 25, 2021 – one year after Derek Chauvin’s murder of George Floyd – which prohibits officers from viewing BWC footage prior to filing written reports in almost all cases. That law and directive represented some of the nation’s best practices on body-worn cameras, including a “write-then-review” requirement designed to preserve an officer’s memory of an event and to allow them to review their BWC footage for accuracy.
“The problem with allowing officers to view body camera footage before they write reports is that it becomes impossible to later separate what an officer remembers from what they learned by watching the tape. The previous law is a better one. It required officers to write their reports before viewing footage and allowed them to make any additions or clarifications after viewing. In this way both the accuracy of the report and the officer’s independent memory of events were preserved,” said Tess Borden, Staff Attorney for the ACLU-NJ.
S3939/A5864 allows officers to watch BWC footage of an incident before writing their reports in the vast majority of circumstances, including most incidents that lead to arrests and criminal charges.
The law’s “review-then-write” provision will contaminate officers’ independent memories with BWC footage. It will also provide opportunities for officers to retrofit their reports or explain away misconduct as it relates to the content of the footage.
“This legislation, backed by police lobbyists, fails to provide any measure of increased
transparency around law enforcement officer conduct. In fact, it only serves to undermine the single morsel of accountability gained since George Floyd’s murder. For New Jersey to build truth and accountability in policing, we shouldn’t be arming police with additional means to evade public scrutiny – we must strengthen, not weaken, the tools we already have in place and implement additional accountability measures, like providing CCRBs with subpoena power, making police misconduct records public, and ending qualified immunity,” said Karen Thompson, Senior Staff Attorney for the ACLU-NJ.
The signing of this bill also goes against long-established legal precedent around the science of eyewitness memory which tells us that watching a video before writing down recollections of events contaminates memory. Law enforcement officers are not immune from this phenomenon.