Reference is to Printer's Date 4/30/15-H.
Amend the bill, as and if amended, by deleting all after the enacting words and inserting:
/ SECTION 1. Chapter 1, Title 23 of the 1976 Code is amended by adding:
"Section 23-1-240.
(A) For purposes of this section,
'Body-worn camera' means an electronic device worn on a person's
body that records both audio and video data.
(B) State and local law
enforcement agencies, under the direction of the Law Enforcement
Training Council, shall implement the use of body-worn cameras
pursuant to guidelines established by the Law Enforcement
Training Council.
(C) Within the first
one hundred eighty days after the effective date of this
section, the Law Enforcement Training Council, in consultation
with a member of the South Carolina Association of Criminal
Defense Lawyers appointed by the president of the association,
shall conduct a thorough study of the use, implementation
procedures, and costs, and any other related aspects associated
with body-worn cameras in those jurisdictions with body-worn
cameras currently in use or which begin their use during this
period. At the end of the first one hundred eighty day period,
The Law Enforcement Training Council, in consultation with a
member of the South Carolina Association of Criminal Defense
Lawyers appointed by the president of the association, shall
have an additional one hundred eighty days to develop guidelines
for the use of body-worn cameras by state and local law
enforcement agencies and is authorized to promulgate these
guidelines by regulation which must be in effect not later than
three hundred and sixty days from the effective date of this
act. In addition, the Law Enforcement Training Council, in
consultation with a member of the South Carolina Association of
Criminal Defense Lawyers appointed by the president of the
association, shall have continuing authority to update the
guidelines by regulation as necessary. The guidelines must
include, but are not limited to, specifying which law
enforcement officers must wear body-worn cameras, when body-worn
cameras must be worn and activated, restrictions on the use of
body-worn cameras, the process to obtain consent of victims and
witnesses before using body-worn cameras during an interview,
the retention and release of data recorded by body-worn cameras,
and access to the data recorded by body-worn cameras pursuant to
subsection (G). The Law Enforcement Training Council shall
provide the guidelines to state and local law enforcement
agencies.
(D) The Law Enforcement
Training Council, in consultation with a member of the South
Carolina Association of Criminal Defense Lawyers appointed by
the president of the association, shall develop policies and
procedures for the use of body-worn cameras pursuant to the
guidelines established by the Law Enforcement Training Council.
Individual State and local law enforcement agencies may submit
any requested modifications to the policies and procedures for
their jurisdiction to the Law Enforcement Training Council. The
Law Enforcement Training Council shall review and approve or
disapprove of the modifications to the policies and procedures.
If the Law Enforcement Training Council disapproves of the
policies and procedures, the law enforcement agency shall modify
and resubmit the policies and procedures. In addition to the
other requirements of this section, The Law Enforcement Training
Council, by three hundred sixty days from the effective date of
this section, shall submit a report to the General Assembly
which must include:
(1)
a specific retention policy that each state and local law
enforcement agency must follow in order to ensure that body-worn
camera audio and video data is retained for an appropriate
amount of time while balancing when that data should be
destroyed to ensure it is, in fact, destroyed in a timely manner
for the protection of all parties concerned;
(2)
A detailed privacy policy regarding the release of
body-worn camera audio or video data including the limitation on
its access in order to ensure the privacy rights of all parties
concerned;
(3)
In conjunction with the retention policy and privacy
protections required by the provisions of items (1) and (2),
suggested penalties for a violation by a state and local law
enforcement agency in order to ensure and reinforce compliance
with these mandates;
(4)
any other recommendations for further statutory provisions
necessary to ensure the provisions of this section are
appropriately and efficiently managed and carried out; and
(5)
the fiscal impact associated with the use of body-worn
cameras as required by the provisions of this section, updated
continuously as necessary.
(E)(1) A 'Body-Worn
Cameras Fund' is established within the Department of Public
Safety for the purpose of assisting state and local law
enforcement agencies, the Attorney General's office, solicitors'
offices, and public defenders' offices in implementing the
provisions of this section including, but not limited to, the
initial purchase, maintenance, and replacement of body-worn
cameras and ongoing costs related to the maintenance and storage
of data recorded by body-worn cameras. The Public Safety
Coordinating Council shall oversee the fund, and shall, within
one hundred eighty days of the effective date of this act,
establish a process for the application for and disbursement of
monies to state and local law enforcement agencies, the Attorney
General's office, solicitors' offices, and public defenders'
offices. The Public Safety Coordinating Council shall disburse
the funds in a fair and equitable manner, taking into
consideration priorities in funding.
(2)
Upon implementation of policies and procedures relating to
body-worn cameras, a State or local law enforcement agency may
apply to the Public Safety Coordinating Council for funding to
implement the agency's use of body-worn cameras pursuant to this
section including, but not limited to, the initial purchase,
maintenance, and replacement of body-worn cameras and ongoing
costs related to the maintenance and storage of data recorded by
body-worn cameras. A state or local law enforcement agency is
not required to implement the use of body-worn cameras pursuant
to this section until the agency has received full funding.
(F) Nothing in this
section prohibits a state or local law enforcement agency's use
of body-worn cameras pursuant to the agency's existing policies
and procedures and funding while the agency is awaiting receipt
of the Law Enforcement Training Council's guidelines, the
policies and procedures from the Law Enforcement Training
Council, and funding from the Public Safety Coordinating
Council. Such an agency is eligible to apply to the Public
Safety Coordinating Council for reimbursement including, but not
limited to, the initial purchase, maintenance, and replacement
of body-worn cameras and ongoing costs related to maintenance
and storage of data recorded by body-worn cameras.
(G)(1) Data recorded by
a body-worn camera is not a public record subject to disclosure
under the freedom of information act.
(2)
The State Law Enforcement Division, the Attorney General,
and a circuit solicitor may request and must receive data
recorded by a body-worn camera for any legitimate criminal
justice purpose.
(3)
A law enforcement agency, the State Law Enforcement
Division, the Attorney General, or a circuit solicitor may
release data recorded by a body-worn camera in its
discretion.
(4)
A law enforcement agency may request and must receive data
recorded by a body-worn camera if the recording is relevant to
an internal investigation regarding misconduct or disciplinary
action of a law enforcement officer.
(5)
In addition to the persons who may request and must
receive data recorded by a body-worn camera provided in item
(2), the following are also entitled to request and receive such
data pursuant to the South Carolina Rules of Criminal Procedure
or the South Carolina Rules of Civil Procedure:
(a)
a person who is the subject of the recording;
(b)
a criminal defendant if the recording is relevant to a
pending criminal action;
(c)
a civil litigant if the recording is relevant to a pending
civil action;
(d)
a person whose property has been seized or damaged in
relation to, or is otherwise involved with, a crime to which the
recording is related;
(e)
a parent or legal guardian of a minor or incapacitated
person described in subitem (A) or (B); and
(f)
an attorney for a person described in subitems (a) through
(e).
(H) Nothing in this
section may be construed to require the dismissal of a charge
for a violation of a criminal offense when a body-worn camera
malfunctions or otherwise fails to record an incident or alleged
criminal violation or if an officer equipped with a body-worn
camera fails to record such incident or alleged criminal
violation so long as such failure is not both wilful and
malicious. If such failure is deemed by a court of competent
jurisdiction to be wilful and malicious, the court must make a
specific finding on the record, based upon the totality of the
circumstances, and the court may prohibit the prosecution from
introducing evidence related to the charges or may provide other
relief as the court deems just under the circumstances."
SECTION 2. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.