The attorneys at the Law Offices of Clifton Black, PC, are often asked by our clients if there are body-worn or dash cam videos. Prior to July 1, 2023, body-worn cameras were not required.
As of July 1, 2023, Colorado Revised Statute 24-31-902 requires all law enforcement agencies in the State of Colorado to provide body-worn cameras for each peace officer who interacts with members of the public.
Required Body-worn Camera: As of July 1, 2023, a police officer, deputy sheriff, Colorado State Patrol officer, or other peace officer (all together referred to herein as “Peace Officer”) is required to wear and activate a body-worn camera or dash camera (if the law enforcement vehicle is equipped with one), when responding to a service call, entering into a premises for the purposes of enforcing the law, or when responding to a service call, during a welfare check – excluding a motorist assist, or during any interaction with the public initiated by the Peace Officer for the purpose of enforcing the law or investigating possible violations of the law. Consent is not required by the person being recorded.
Exceptions:
A Peace Officer may turn off the body-worn camera to prevent recording personal information that is not related to the case, when working an unrelated assignment, during long breaks in the incident, during an administrative, tactical, and management discussions when civilians are not present.
Undercover: A Peace Officer is not required to wear a body-worn camera while undercover.
Local Law Enforcement Agency: Body-worn camera is not required inside a law enforcement agency or a place in the jail that has working video cameras, except in situations when Peace Officers are involved in a duty that requires an anticipated use of force, for example, when an inmate needs to be physically removed from a cell when needing to place a person in a restraint chair.
Staff: The body-worn requirement does not apply to civilian or administrative staff of the law enforcement agency or an executive detail of the Colorado State Patrol.
Courtroom: Body-worn cameras are not required for Peace Officers working in a courtroom.
Penalties:
Penalties in Criminal Court Proceedings
Failure to activate a body-worn camera or dash camera does not result in the dismissal of criminal charges against a person charged with a crime. However, as a seasoned criminal defense firm having dealt with this issue, we may be able to exclude certain evidence in the case, which may lead to a dismissal or favorable outcome in the case.
If a Peace Officer does not activate a body-worn camera or dash camera if the vehicle is equipped with it, as required, or tampers with the recording, there is a permissive inference in any investigation or legal proceeding, excluding criminal proceedings against the Peace Officer, that the missing footage would have reflected misconduct by the Peace Officer. A permissive inference, in this instance, basically gives the trial of fact (Judge or Jury) permission to assume there was misconduct.
If a Peace Officer fails to activate or reactivate the body-worn camera or tampers with body-worn or dash-camera footage or operation when required to activate the camera, any statements or conduct sought to be introduced in a prosecution through the Peace Officer related to the incident that were not recorded due to the Peace Officer’s failure to activate or reactivate the body-worn camera as required, or if the statement or conduct was not recorded by other means, creates a rebuttable presumption of inadmissibility. This basically means that if the Peace Officer (through the prosecution or district attorney) attempts to introduce statements or conduct that were not recorded when they should have been, the defendant, generally through his/her defense attorney, can make a motion for that evidence to be inadmissible. However, the Prosecution can attempt to get the evidence introduced by showing or overcoming the rebuttable presumption. As an example, the evidence could still come in if there is other evidence suggesting that the statements or conduct are reliable even though the body-worn camera or dash camera was not recording when it was required to be recording.
However, the permissive inference and rebuttable presumption above do not apply if the body-worn camera or dash cam was not operating due to a malfunction and the Peace Officer was not aware of the malfunction or was aware but not able to fix it prior to the incident, provided it can be shown that the Peace Officer checked the body-worn camera at the start of the shift.
Penalties Against the Peace Officer
If a court, administrative law judge, hearing officer, or a final decision in an internal investigation finds that the Peace Officer intentionally failed to activate a body-worn camera or dash camera or tampered with the recordings, the Peace Officer’s law enforcement agency shall impose discipline up to and including termination. However, it would have to be determined that the officer intentionally failed to record or tampered with, and the discipline does not require termination, so there could be less severe consequences.
If a court, administrative law judge, hearing officer, or a final decision in an internal investigation finds that the Peace Officer acted intentionally to conceal unlawful or inappropriate actions or to obstruct justice, the P.O.S.T board shall suspend the Peace Officer’s POST certification for at least one year and only lifted during the suspension if the Peace Officer is exonerated.
If you need help with a case involving law enforcement and body-worn cameras, the team at the Law Offices of Clifton Black, PC, can help. We will work hard on your case in your time of need. Call us now at (719) 328-1616 or book an appointment on our website. We look forward to helping you.
