United States: New Police Procedures Laws For Illinois Municipalities

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HIGHLIGHTS:

• Public Act 99-352, recently signed into law, amends several Illinois statutes concerning local police operations and procedures.
• The Act affects a number of police operations, including the use of body-worn and in-car cameras, pedestrian stops, use of chokeholds, officer-involved deaths and crime reporting.
• Illinois local governments and municipalities should provide training to all officers, and adopt local policies and regulations, to ensure compliance with concerning the new legal requirements in Public Act 99-352.

Illinois Gov. Bruce Rauner signed Public Act 99-352 into law on Aug. 12, 2015, amending several Illinois statutes concerning local police operations and procedures. The law takes effect on January 1, 2016. Several aspects of police operations are affected by the Act, including the use of body-worn and in-car cameras, pedestrian stops, use of chokeholds, officer-involved deaths and crime reporting. Below are the primary amendments that affect law enforcement, along with recommendations for Illinois local governments and municipalities to comply with each of these new requirements.

I. Body-Worn and In-Car Cameras

Public Act 99-352 includes both enactment of the new Law Enforcement Officer-Worn Body Camera Act (50 ILCS 706/10-1 et seq.) and several amendments to the Law Enforcement Camera Grant Act (50 ILCS 707/01 et seq.).

A. Body-Worn Cameras

The Law Enforcement Officer-Worn Body Camera Act applies to law enforcement agencies that use body-worn cameras. The Act does not require agencies to use body-worn cameras. The primary purposes of the Act are to set the procedures for establishing regulations for the use of body-worn cameras and to set basic standards to guide those regulations.

The regulations will be developed by the Illinois Law Enforcement Training Standards Board (Standards Board). Those regulations must form the basis of a written policy that local law enforcement agencies must adopt. The regulations and written policy must include the following requirements:

• Pre-Event Recording: Cameras must be able to record events at least 30 seconds prior to activation (unless the camera was purchased before July 1, 2015).
• Duration of Recording: Cameras must be able to record at least 10 hours of footage (unless the camera was purchased before July 1, 2015).
• Use of Cameras:
  • Cameras must be turned on at all times when the officer is in uniform and is either responding to calls for service or otherwise engaged in "any law-enforcement-related encounter or activity." "Law enforcement-related encounter or activity" is broadly defined to include traffic stops, arrests, pedestrian stops, traffic control, interrogations, investigations and searches, but does not include the completion of paperwork or when the officer is only in the presence of other officers.
  • Cameras need not be activated if the officer is inside a patrol car equipped with an in-car camera.
  • Cameras must be turned off if the officer is interacting with a confidential informant or if requested by a crime victim or a witness to a crime. However, if the officer believes that the informant, victim or witness has committed or is in the process of committing a crime, then the officer may keep the camera activated upon notice to the other individuals that the camera is recording.
  • Cameras may be turned off if the officer is engaged in "community caretaking functions," defined as official duties "unrelated to the investigation of a crime," such as attendance at community outreach events, well-being checks and helping a child find his or her parents. However, if the officer believes that the person for whom the officer is performing the caretaking function has committed or is in the process of committing a crime, then the officer must keep the camera activated and give notice to the other individuals that the camera is recording.
  • The officer must notify the person being recorded of the recording, "if the person has a reasonable expectation of privacy."
• Access to Recordings: Camera recordings are to be accessed only by personnel responsible for redacting, labeling and copying the recordings, and by the recording officer and his or her supervisors. The officer and the supervisors must disclose, in any reports or documentation concerning the recorded incident, that they have accessed the recordings.
• Preservation of Recordings:
  • Camera recordings must be retained for at least 90 days, without any alteration or erasing.
  • Following the 90-day period, the recording must be destroyed, unless the incident is "flagged," meaning: (i) the recorded incident relates to a formal or informal complaint that has been filed; (ii) an officer used force or discharged a firearm as part of the incident; (iii) any person recorded has since suffered "great bodily harm" or has died; (iv) the incident led to a detention or arrest, except for minor traffic stops and business offenses; (v) the officer involved is subject to an internal investigation; (vi) the officer's supervisor, the prosecuting attorney, the defendant, or the court, in a criminal prosecution, "determines that the encounter has evidentiary value;" or (vii) the officer requests preservation because the incident related to his or her official duties. In any of these seven circumstances, the recording must be retained for at least two years after being flagged.
  • Further, if the recording was used in any criminal, civil or administrative proceeding, then it may not be destroyed until the proceeding has concluded and the court has authorized destruction.
  • Recordings may also be kept after 90 days for training purposes, if so designated by a supervisor.
• Use of Recordings for Disciplinary Purposes: Recordings may not be used to discipline officers, unless: (i) a complaint has been filed against the officer; (ii) the incident involved a use of force; (iii) the incident could result in a formal investigation under the Uniform Peace Officers' Disciplinary Act; or (iv) the recording corroborates other evidence of officer misconduct."
• Equipment Defects: Officers must promptly notify supervisors of any technical problems or failures associated with the camera or related equipment.
• Recordings by Private Parties: An officer may not hinder or prohibit private parties from recording the officer performing official duties in public places or when the officer "has no reasonable expectation of privacy."

The Act offers no guidance as to what constitutes a "reasonable expectation of privacy," as that term is used for recording of private persons or of officers. In the context of a police search, unrelated to interpreting the Act, the Supreme Court of Illinois has stated that "several factors should be examined to determine whether a defendant possesses a reasonable expectation of privacy: (1) ownership of the property searched; (2) whether the defendant was legitimately present in the area searched; (3) whether defendant has a possessory interest in the area or property seized; (4) prior use of the area searched or property seized; (5) the ability to control or exclude others from the use of the property; and (6) whether the defendant himself had a subjective expectation of privacy in the property." People v. Pitman, 211 Ill. 2d 502, 520-21 (2004). Perhaps, in its regulations, the Standards Board will offer clarification as to what a "reasonable expectation of privacy" means in the context of the new Act.

Recordings made through body-worn cameras may be used as evidence in any judicial, legislative, disciplinary or administrative proceeding. However, recordings are expressly exempt from disclosure under the Illinois Freedom of Information Act (FOIA), except if the recording is of a "flagged" incident "due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm." In those instances, the recording is not exempt unless the subject of the encounter was a victim or witness, had a reasonable expectation of privacy at the time of the recording, and did not consent to disclosure. The recording may also be disclosed directly to the subject of a recorded encounter. When released pursuant to FOIA, a recording must be redacted to remove identification of any person recorded who was neither the officer, the subject of the incident nor otherwise "directly involved" in the incident.

Law enforcement agencies must provide an annual report to the Standards Board, on or before May 1 of each year, concerning the use and deployment of body-worn cameras. The report must include detailed information of every recording used in criminal, traffic and municipal ordinance prosecutions.

B. In-Car Cameras

The Act makes several amendments to the Law Enforcement Camera Grant Act, which initially took effect in 2006. Most notably, the amendments require the Standards Board to establish "model rules" for the use of in-car video cameras and body cameras, rules that must be adopted by law enforcement agencies that receive grants under the Camera Grant Act. Importantly, the amendments and model rules do not apply to agencies that purchase cameras through other means. The rules include the following requirements:

• Cameras must be installed in law enforcement vehicles.
• The cameras must provide audio recording of an officer that is outside the vehicle.
• Access to the cameras must be restricted to supervisors of the officers in the vehicle.
• Cameras must be turned on throughout the officer's shift.
• Copies of the video recording must be made available to police personnel, the local State's Attorney and any person depicted in the recording. There must be protocols in place to avoid disclosing the identities of other persons who are not "party to the requested stop."
• Videos must be stored for at least two years.

Further, agencies that receive grants for in-car cameras under the Camera Grant Act must provide an annual report that identifies, among other things, a list of all cases in which video recordings were used.

Recommendations

1. If a municipality uses or will use body-worn cameras, then it must adopt a written policy for the cameras, consistent with the regulations to be promulgated by the Standards Board.
2. If a municipality has received a grant for in-car cameras, then it must adopt the model rules to be promulgated by the Standards Board.
3. Train all officers in the proper use of body-worn and in-car cameras.
4. Implement safeguarding procedures to prevent unauthorized access to, tampering with or destruction of cameras or recordings.
5. Implement reporting procedures consistent with Public Act 99-352.

II. Pedestrian Stops

Section 11-212 of the Illinois Vehicle Code (625 ILCS 5/11-212) already imposes requirements for data collection related to traffic stops performed by law enforcement officers. Public Act 99-352 adds these new data collection requirements for "all frisks, searches, summons and arrests." There is no requirement to collect data for a pedestrian stop that does not include a frisk, search, summons, or arrest.

• Data Required: The officer must record: (i) the subject's gender and race, (ii) the reasons for the stop, (iii) the date, time and location of the stop, (iv) whether or not a pat-down or frisk was performed and if so, the reasons for the pat-down or frisk and whether the subject granted consent, (v) whether contraband was found, (vi) whether other searches were conducted, with or without consent, (vii) the disposition of the stop, (viii) and any violations, offenses or crimes charged as a result of the stop.
• Form: The required data must be recorded on a "uniform pedestrian stop card." The Illinois Department of Transportation has released a standard Pedestrian Stop Data Sheet for reporting. (Document best viewed in Internet Explorer browser.)
• Reporting: Law enforcement agencies must report the pedestrian stop data annually, in the same manner as they currently report traffic stop data.
• FOIA: Pedestrian stop information is exempt under FOIA, except as necessary to comply with the requirements of the Vehicle Code.

The pedestrian stop data provisions will automatically sunset on July 1, 2019.

Separate amendments to the Code of Criminal Procedure require that, if a stop includes a frisk or search, then the officer must give the subject a "stop receipt" that states the reasons for the stop, the officer's name and the officer's badge number. 725 ILCS 5/107-14(b). Stop receipts are not required for "routine security screenings at facilities or events." The new law does not specify whether a receipt is required for searches conducted in the process of an arrest, though we believe not, because the law appears intended to apply to lesser encounters between police officers and private citizens.

Recommendations

1.  Develop the appropriate forms for "stop receipts."

2.  Train all officers in the new pedestrian stop requirements.

3.  Update local policies and rules to reflect the new requirements.

III. Prohibited Use of Force

The Act amends the Criminal Code to prohibit chokeholds, except when deadly force is justified under the Criminal Code. The amendments also expressly prohibit chokeholds and "any lesser contact with the throat or neck area," for the purpose of preventing the destruction of evidence by ingestion. See 720 ILCS 5/7-5.5.

Recommendation

Update local policies and codes, and inform all officers of the new prohibitions on the use of chokeholds.

IV. Investigation of Officer-Involved Deaths

The Act includes a new Police and Community Relations Improvement Act (50 ILCS 727/1-1 et seq.). Most notably, this new statute imposes new obligations concerning the investigation of "officer-involved deaths." An "officer-involved death" is defined in Section 1-5 of the Improvement Act as follows:

Under the new law, there must be an investigation into an officer-involved death, conducted by at least two investigators, concluded pursuant to a written policy adopted by the law enforcement agency. There must be a designated "lead investigator," who must be certified as a Lead Homicide Investigator by the Standards Board. If the death involves a motor vehicle accident, then one of the investigators must be certified as a Crash Reconstruction Specialist by the Standards Board. Each of these certifications may also be provided through a similar training provided by the Standards Board, by a school certified by the Standards Board, or by the Illinois State Police. If the death involves a motor vehicle accident, then one of the investigators may be a municipal employee; otherwise, neither investigator may be employed by the municipality.

The investigators must conduct their review "in an expeditious manner" and issue a "complete report" to the local State's Attorney. That report is to be publicly released if and when the State's Attorney determines that the law enforcement officer is not to be prosecuted, charged or indicted.

The Improvement Act expressly contemplates that local law enforcement agencies can conduct internal investigations into officer-involved deaths, separate and apart from the investigation required by the Improvement Act, so long as the internal investigation "does not interfere" with the required investigation.

Finally, the Improvement Act expressly contemplates that local governments may enter into agreements to provide appropriate compensation for conducting the required officer-involved death investigations.

Recommendations

1.  Adopt a policy for conducting officer-involved death investigations.

2.  Identify sister law enforcement agencies with which to enter into intergovernmental agreements, to provide for the completion of required investigations and the compensation to be paid in each such instance.

V. Recording of Law Enforcement Officers

The Act amends the Illinois Criminal Code of 2012 to expressly preserve the right of private persons to video-record law enforcement officers performing official duties in a public place or where they have no expectation of privacy. The amendments recognize that officers "may take reasonable action" to maintain public safety, to preserve crime scenes and to protect investigations. 720 ILCS 5/14-2(e).

Recommendation

Update local policies and rules, and inform all officers of new laws governing private video recording of law enforcement activity.

VI. Crime Reporting

The Act also creates the new Uniform Crime Reporting Act (50 ILCS 709/5-1 et seq.), which sets forth new reporting obligations for local law enforcement agencies concerning a wide variety of law enforcement activities.

All required submissions must be made in the manner and form to be prescribed by the State Police. The State Police will inform the Standards Board if any law enforcement agency is not in compliance with the reporting requirements. The degree of compliance will be considered when the Standards Board determines whether to issue grant funding for law enforcement cameras.

A. Monthly Reporting

At least once a month, each local law enforcement agency must submit the following information to the State Police:

• Arrest-Related Deaths: Information regarding the deceased individuals, the law enforcement officers involved, any weapons used by either the deceased or the officers, and "the circumstances of the incident." An "arrest-related death" is "any death of an individual while the individual's freedom to leave is restricted by a law enforcement officer while the officer is on duty or otherwise acting within the scope of his or her employment."
• Firearm Discharges: Information regarding any non-fatal firearm discharge by a law enforcement officer performing his or her official duties or in the line of duty.
• Hate Crimes: Information on each incident of a hate crime (as defined in the Illinois Criminal Code), including a description and location of each offense, "type" of victim and offender, and "bias motivation." The law enforcement agency must submit a "no incident record" if no hate crimes occur in a given month.
• Domestic Crimes: Information concerning the "alleged commission of a domestic crime," including information about the victim, the offender, and their relationship, the date and time of each incident, whether injuries were inflicted and whether weapons were involved.
• Serious Offenses: Quantitative data on offenses designated by the State Police as "serious," including the frequency of the offenses and related arrests.
• School Incidents: Data concerning incidents reported by schools to the law enforcement agency, including information concerning attacks against school personnel, intimidation offenses, drug incidents and weapons-related incidents.

The arrest-related death reporting requirement takes effect on Jan. 1, 2016; the other requirements take effect on Jan. 1, 2017.

B. Quarterly Homicide Reporting

Beginning on July 1, 2016, law enforcement agencies must submit criminal homicide reporting information to the State Police, with such specific content as will be identified by the State Police.

Recommendation

Implement policies to ensure compliance with the new reporting requirements.

VII. Reporting of Officer Discipline

The Act adds a new Section 6.2 to the Illinois Police Training Act, imposing new reporting obligations in connection with police officer discipline (50 ILCS 705/6.2). Beginning on Jan. 1, 2016, local law enforcement agencies must notify the Standards Board within 30 days after: (a) an officer is discharged or dismissed as a result of a "willful violation of department or agency policy, official misconduct, or violation of law;" or (b) an officer resigns during an investigation into such a violation, after the officer receives notice of the investigation and that the incident concerns the possible "commission of a Class 2 or greater felony."

Upon receipt of a notice from the local law enforcement agency, the Standards Board will notify the officer in question, who will have the right to provide a statement to the Standards Board concerning the incident. The Standards Board will preserve all notices and statements in a database that will be available to all "chief administrative officers" of local agencies or their designees.

VIII. In-Service Training

Finally, the Act amends Section 7 of the Police Training Act (50 ILCS 705/7) to add two types of in-service training requirements for active police officers. First, officers must complete annual in-service training that includes legal updates and use of force training. Second, at least once every three years, officers must complete training in "constitutional and proper use of law enforcement authority, procedural justice, civil rights, human rights, and cultural competency." The Standards Board will develop rules and minimum standards for training schools to provide the newly required training.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.