Assembly OKs bill keeping some police body camera footage from public
Under a proposed bill in the state Assembly, most footage from police body cameras would be kept from the public. This Milwaukee Police Department footage is from the body camera worn by Dominique Heaggan-Brown and used in his trial.
MADISON - Police body camera footage would be kept from the public in many cases, under a bill the state Assembly approved Thursday.
Rep. Jesse Kremer (R-Kewaskum) said Assembly Bill 351 will protect the rights of victims, witnesses and ordinary citizens who encounter police.
"We've been giving up a lot of privacy with the technology that's out there, especially since 9/11. We feel like we're kind of treading on thin ice as it relates to the Fourth Amendment," said Kremer, referring to the constitutional provision protecting people from unreasonable searches.
The Assembly sent the bill to the Senate on a voice vote. Its fate there is uncertain.
Critics said the bill will too often keep the public in the dark, preventing people from getting a clear view of crime in their communities and how officers are responding to it.
"This is a bad bill that if passed will deny access to videos the public is paying for, based on category and not common sense,” Bill Lueders, president of the Wisconsin Freedom of Information Council, wrote in an email to the group's supporters last week. “It will even keep police from releasing video that backs up their accounts. It does nothing to respect or protect the public's right to see these videos, undercutting the whole reason for their existence."
Rep. Chris Taylor (D-Madison) said she believed the state should set clear rules at a time when police departments are increasingly equipping their officers with body cameras.
But Kremer's bill goes too far, she said.
"It's going to make it harder for the public to get body camera footage that they're paying for," she said.
The bill would not require departments to use body cameras, but sets policies they must abide by if they do.
Under the bill, most footage would be kept from the public. Footage would be available under the state’s open records law if it was taken in a public place and involved a death, physical harm, an arrest or a search.
If death, physical harm, arrests or searches occurred in a place where someone would ordinarily expect privacy, the footage could be released only if all victims and witnesses agreed to that in writing. The owner of the property where the police encounter occurred in most cases would also have to sign off on its public release.
Democrats said that provision meant slumlords could prevent footage taken in their run-down apartments from being released, even when the tenants and police wanted it to be made public. Kremer disputed that, saying tenants were the ones who would determine whether footage would be released in such a circumstance.
Rep. Peter Barca (D-Kenosha) said that part of the bill was ambiguous at best and was one of the reasons the measure wouldn't make it to GOP Gov. Scott Walker's desk.
"The public has a right to know," he said. "That's why your bill's not going anywhere in the Senate, quite frankly."
Milwaukee in recent years began equipping all its street officers with body cameras. In 2015, Milwaukee Police Chief Edward Flynn praised the plan to do that because “it’s going to overwhelmingly put in context what (police officers are) dealing with, what they try and do and what actually happens.”
In 2015, the department released footage of police responding to a drug-related home invasion in which two armed men took a couple hostage.
If Kremer’s bill had been the law at the time, police could not have released it without the permission of the hostages, who were held after the incident for keeping a drug house.
The state's public records law already allows authorities to withhold information under several circumstances.
Police agencies routinely deny requests for incidents that are under investigation. For example, the body camera footage of the fatal officer-involved shooting that led to a riot in Sherman Park in August 2016 was not made public until the officer's trial 10 months later.
In closed cases, case law requires agencies to conduct a "balancing test." As a result, they must "decide whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited or nondisclosure," according to a 2005 state Supreme Court decision.
Police agencies often choose not to release audio, video and documents after they have conducted the balancing test. Decisions to keep records private often are made after the records custodians decide that a victim's privacy should take precedence over the public's interest in the disclosure.
Kremer said he wanted to make sure victims are protected in all cases, saying he didn't want the public to gain access, for instance, to footage of a woman who had just been sexually assaulted.
"There's no reason this video should make it to the media or a YouTube channel," he said.
Under Kremer's bill, police departments would have to keep footage for at least 120 days. If used in a prosecution, it would have to be retained until the final disposition of the case.
Assembly Speaker Robin Vos (R-Rochester) told reporters the public shouldn’t have access to victims who are in their homes or who have just been traumatized by a sexual assault or other crime.
“I think there are just certain things that you should have the ability to say, ‘That should not be open to anybody who’s curious,' ” he said.
Senate leaders have not said whether they plan to take up the bill when they return to the Capitol in January. Both houses are controlled by Republicans.
Garey Bies, a former Republican state representative and former chief sheriff's deputy in Door County, said that he couldn't "come out strongly one way or the other" on the legislation because he saw two sides to it.
On the one hand, Bies said body camera footage could provide important information to the public and even help prove whether an officer accused of wrongdoing had acted rightly or wrongly. On the other hand, unethical police officials could abuse how the footage is used to embarrass someone who wasn't guilty of wrongdoing, Bies said.
"I don't think there's a right answer on this," Bies said of where the line should be drawn.
The Assembly is voting on dozens of other bills Thursday, its last session day for 2017. Both houses of the Legislature will return in January for their spring session.
Marsy's Law. On an 81-10 vote, the Assembly followed the lead of the Senate and passed Senate Joint Resolution 53 to begin the long process of amending the state constitution to give crime victims more rights.
Both houses will need to take up the measure again in 2019 or 2020. If approved again then, the issue would then go to voters in a referendum for final approval.
The measure, known as Marsy's Law, passed the Senate 29-4 on Tuesday.
The measure would give victims new rights and elevate ones they already have from state law to the constitution. By putting the protections in the constitution, victims will fare better when their rights conflict with those of defendants, backers of the measure said.
"We've gotten to the point where some of the victims are left behind," said Rep. Todd Novak (R-Dodgeville), one of the bill's chief sponsors.
Under the proposal, victims could refuse to be interviewed by defense attorneys. Critics argued that would conflict with the rights of defendants to confront their accusers and receive a fair trial.
Divorce. People who get divorces would be able to remarry right away under Assembly Bill 521. Now, people can't get remarried until six months after their divorce is final.
The bill passed on a voice vote and heads to the Senate.
Lead pipes. Senate Bill 48 would help homeowners and water utilities replace lead pipes, an issue made infamous by the recent lead poisoning of children in Flint, Mich.
The measure, passed on a voice vote, would allow utilities to use money from ratepayers to give grants and loans to homeowners to help pay for replacing more than 170,000 lead service lines to their houses.
The Senate unanimously passed the measure last week but that house must take up the bill again because the Assembly made changes to it. The Assembly amendment would limit the maximum size of a grant to half the cost of replacing a line and would require water utilities to offer the same discounts to all of its customers.
Hemp. Senate Bill 119 would make it easier to grow hemp. Doing so would remain illegal in most cases under federal law, but the state measure would clear the way for the University of Wisconsin or the Wisconsin Department of Agriculture, Trade and Consumer Protection to grow hemp for research.
Supporters say the state's rural economy would benefit from the measure because farmers could grow hemp under licenses from the state.
The Assembly approved the measure unanimously, just as the Senate did on Tuesday. It goes to Walker.
Gina Barton and Jason Stein of the Journal Sentinel staff contributed to this report. Barton reported from Milwaukee and Stein from Madison.