Community leaders, defense attorneys, and civil rights organizations had urged Gov. Phil Murphy to veto legislation that allows law enforcement officers to view body-worn camera (BWC) footage before writing police reports because it would undermine civil rights, create unfair opportunities to coverup misconduct, and weaken the utility of officer memory, but he signed the bill into law anyway.
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.
This bill was previously sent to the governor and he conditionally vetoed it. The Legislature made changes to the bill that made it worse, and passed it again.
“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 ACLU attorney Tess Borden.
The measure allows officers to watch video footage of an incident before writing their reports in the vast majority of circumstances, including most incidents that lead to arrests and criminal charges.
Allowing police to view footage before writing reports compromises the ability to test the reliability of an officer’s memory as a witness and — in the worst cases — gives crooked cops trying to cover up misconduct the opportunity to change their story based on what the footage captured.
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,” said ACLU attorney Karen Thompson. “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.”
The signing of the 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. Critics note that law enforcement officers are not immune from this phenomenon.