By GAIL OBER, LACONIA DAILY SUN
GILFORD — With the final approval from selectmen last week to purchase body cameras for the police department, Chief Anthony Bean Burpee is now working with his team to create and impose a set of rules and regulations regarding their use.
While not the first police agency in New Hampshire to have to come up with a policy, Gilford's guidelines, to a degree, may soon be governed by a state law that is winding its way through the legislature.
House Bill 617-FN seeks to require all state police officers to wear body cameras with audio capabilities beginning on Jan. 1. The bill has been approved by the New Hampshire House and is now being considered in the Senate Committee on Criminal Justice and Public Safety. Should it pass the Senate, it would go to the governor's office for approval.
Each community police department that opts in the future to use body cameras will be paying for their own cameras. In Gilford's case, the department is entering a five-year lease with Taser International for a total of $121,937 with $36,401 coming from this year's budget and four consecutive payments of $21,384 each in successive years.
However, if the bill passes as it is currently written, the rules regarding the used of body cameras will apply to any law enforcement agency in the state that uses or will use body cameras.
The recordings created by law enforcement are subject to the Right-To-Know Laws in New Hampshire and releasing them to the public or the media is something the original bill tried to prevent.
For the general public and the media, this is a key clause that has been litigated once in the state in the shooting by police of Hagen Esty-Lennon. In that case, the Haverhill Police Department supported the release of the recordings because they supported what police considered and was later determined to be a justified shooting.
In this instance, there were four total recordings, which were the two body cameras on the two responding Haverhill Police officers, the third belonged to a Haverhill sergeant who arrived moments after the shooting, and the fourth was a video dashboard camera on the cruiser driven by the officers.
Gilford cruisers have no cameras.
The people opposing the release of the recordings and who triggered the civil suit were the family of Esty-Lennon, who said that releasing the recordings would violate their right to privacy, especially that of Esty-Lennon's two children. The court granted the New Hampshire Union Leader Corp., WMUR-TV, and IndepthNH.org the right to intervene or to argue the case, based on the Right-To-Know laws.
In September 2015, Merrimack County Superior Court Judge Peter Fauver split the difference by using a three-step legal process outlined in a previous state Supreme Court decision about privacy interests.
The first test is whether or not the disclosure is a privacy interest. The second test, if the court finds it is in the interest of privacy is that it is in the interest of the public to see and hear what's on the recordings. If there is a public interest, the third test is balancing that against the privacy rights of individuals.
He ordered the most graphic portions of the recordings of the two responding officers would not be released to the public or the media, saying no public interest is served. He said seeing Esty-Lennon "laying in a pool of blood does not advance the public's interest."
Fauver said the privacy issues regarding the sergeant's body camera were that the visuals were at a distance from that of the other two officers and the distance lessened the privacy issues so it was in the public's interests for disclosure.
"Openness in the conduct of the public's business is essential to a democratic society," he said, ruling that the footage from the cruiser and from the sergeant's camera and all of the audio recordings for each device would be released to the public.
Many of the regulations proposed in HB 617 are common sense. Officers can only use body cameras when in uniform, officers shall activate their cameras once they arrive to where the incident is and recordings should be specific to an incident and not "indiscriminate" records of entire shifts.
Others are a little more succinct. There are some cases where people are specifically exempt from being recorded and include communications with other police personnel except when those communications pertain to the incident at hand; encounters with undercover officers when the recording officer knows the person is operating under cover; intimate searches; interviews with crime victims unless consent is given according to the state Attorney General Guidelines; interactions with those seeking to report a crime anonymously, though the officer can ask the person for permission; on the grounds of any school unless responding to an "imminent threat to life or health;" when the officer is on break or on personal business; where any normal person has an expectation of privacy like a bathroom or locker room; or in case of a possible explosive device when a signal could possibly trigger the device.
Except in emergencies, officers will tell people they are being recorded and where people have some expectation of privacy, such as in their home, can be restricted by the person unless police have a warrant or it is a judicially recognized time when an officer can act without a warrant. If an individual opts not to be recorded, the officer shall document this.
Once the camera is activated, it shall remain activated until the event is completed. Should a failure to activate or an interruption occur, it will be documented by the officer.
Only certain people can alter and view the recordings and, if an officer is suspected of wrongdoing, his or her access may be limited. Bean Burpee said he and his two lieutenants will be the only people who can authorize the deletion or overwriting of a recording, though he told selectmen that Taser backs up recordings as part of their contract.
The recording shall be overwritten in 180 days unless the recording is of a felony-level offense, a discharge of a firearm, serious bodily injury, or if a complaint is filed with the police agency. In the event of a civil complaint, the recording will be kept if it is part of an internal investigation or a disciplinary investigation.
There is a clause in the proposed bill that exempts the use of body cameras from wiretapping laws.
Bean Burpee estimates that the body cameras will be available for use sometime this summer,1 as there is extensive training required by individual officers for their use.
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