2021 -- S 0597

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LC001541

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- LAW ENFORCEMENT

INTEGRITY ACT

     Introduced By: Senators Acosta, Mack, Anderson, Calkin, Kallman, and Mendes

     Date Introduced: March 11, 2021

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

GOVERNMENT" is hereby amended by adding thereto the following chapter:

CHAPTER 160

LAW ENFORCEMENT INTEGRITY ACT

     42-160-1. Short title.

     This chapter shall be known and may be cited as the "Law Enforcement Integrity Act".

     42-160-2. Definitions.

     As used in this chapter, the following words, terms and phrases have the meanings

indicated:

     (1) "Contacts" means an interaction with an individual, whether or not the person is in a

motor vehicle, initiated by a peace officer, whether consensual or nonconsensual, for the purpose

of enforcing the law or investigating possible violations of the law. "Contacts" do not include

routine interactions with the public at the point of entry or exit from a controlled area.

     (2) "Demographic information" means race, ethnicity, sex, and approximate age.

     (3) "Peace officer" means the following individuals as defined in § 12-7-21.

     (4) "Physical force" means the application of physical techniques or tactics, chemical

agents, or weapons to another person.

     (5) "Serious bodily injury" means physical injury that creates a substantial risk of death or

causes serious permanent disfigurement or protracted loss or impairment of the function of any

bodily member or organ.

     (6) "Tamper" means to intentionally damage, disable, dislodge, or obstruct the sight or

sound or otherwise impair functionality of the body-worn camera or to intentionally damage, delete,

or fail to upload some or all portions of the video and audio.

     42-160-3. Camera use.

     (a) Except as provided in subsections (b) through (d) of this section, a peace officer shall

wear and activate a body-worn camera or dash camera, if the peace officer's vehicle is equipped

with a dash camera, when responding to a call for service or during any interaction with the public

initiated by the peace officer, whether consensual or nonconsensual, for the purpose of enforcing

the law or investigating possible violations of the law.

     (b) A peace officer may turn off a body-worn camera to avoid recording personal

information that is not case related; when working on an unrelated assignment; when there is a long

break in the incident or contact that is not related to the initial incident; and in administrative,

tactical, and management discussions.

     (c) A peace officer does not need to wear or activate a body-worn camera if the peace

officer is working undercover.

     (d) The provisions of this section shall not apply to jail peace officers or staff of a local law

enforcement agency if the jail has video cameras; however, the provisions of subsection (a) of this

section, shall apply to jail peace officers when performing a task that requires an anticipated use of

force, including cell extractions and restraint chairs. The provisions of this section shall also not

apply to the civilian or administrative staff of the Rhode Island state police or a local law

enforcement agency, the executive detail of the Rhode Island state police, and peace officers

working in a courtroom.

     (e) If a peace officer fails to activate a body-worn camera or dash camera as required by

this section or tampers with body-worn or dash-camera footage or operation when required to

activate the camera, there exists 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. If a peace officer fails to activate or reactivate his or her

body-worn camera as required by this section or tampers with body-worn or dash-camera footage

or operation when required to activate the camera, any statements 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 by this section or if the

statement was not recorded by other means, creates a rebuttable presumption of inadmissibility.

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Notwithstanding any other provision of law, this subsection does not apply if the body-worn camera

was not activated due to a malfunction of the body-worn camera and the peace officer was not

aware of the malfunction, or was unable to rectify it, prior to the incident; provided, that the law

enforcement agency's documentation shows the peace officer checked the functionality of the body-

worn camera at the beginning of his or her shift.

     42-160-4. Discipline for violation.

     In addition to any criminal liability and penalty under the law, if a court, administrative

law judge, hearing officer, or a final decision in an internal investigation finds that a peace officer

intentionally failed to activate a body-worn camera or dash-camera or tampered with any body-

worn or dash-camera, except as permitted in this section, the peace officer's employer shall impose

discipline up to and including termination, to the extent permitted by the provisions of chapter 28.6

of title 42.

     42-160-5. Retention of recordings.

     A local law enforcement agency and the Rhode Island state police shall establish and

follow a retention schedule for body-worn camera recordings.

     42-160-6. Release of recordings.

     (a) For all incidents in which there is a complaint of peace officer misconduct by another

peace officer, a civilian, or nonprofit organization, through notice to the law enforcement agency

involved in the alleged misconduct, the local law enforcement agency or the Rhode Island state

police shall release all unedited video and audio recordings of the incident, including those from

body-worn cameras, dash-cameras, or otherwise collected through investigation, to the public

within twenty-one (21) days after the local law enforcement agency or the Rhode Island state police

received the complaint of misconduct, except as provided in subsections (b) through (g) of this

section.

     (b) All video and audio recordings depicting a death shall be provided upon request to the

victim's spouse, parent, legal guardian, child, sibling, grandparent, grandchild, significant other, or

other lawful representative, and such person shall be notified of his or her right, to receive and

review the recording at least seventy-two (72) hours prior to any public disclosure. This subsection

shall not apply to a person seventeen (17) years of age and under, unless legally emancipated.

     (c) Notwithstanding any other provision of this section, any video that raises substantial

privacy concerns for criminal defendants, victims, witnesses, juveniles, or informants, including

video depicting nudity; a sexual assault; a medical emergency; private medical information; a

mental health crisis; a victim interview; a minor, including any images or information that might

undermine the requirement to keep certain juvenile records confidential; any personal information

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other than the name of any person not arrested, cited, charged, or issued a written warning,

including a government-issued identification number, date of birth, address, or financial

information; significantly explicit and gruesome bodily injury, unless the injury was caused by a

peace officer; or the interior of a home or treatment facility, shall be redacted or blurred to protect

the substantial privacy interest while still allowing public release. Unredacted footage shall not be

released without the written authorization of the victim or, if the victim is deceased or incapacitated,

the written authorization of the victim's next of kin. Unredacted footage shall not be released to a

person seventeen (17) years of age and under, unless legally emancipated.

     (d) If redaction or blurring is insufficient to protect the substantial privacy interest, the local

law enforcement agency or the Rhode Island state police shall, upon request, release the video to

the victim or, if the victim is deceased or incapacitated, to the victim's spouse, parent, legal

guardian, child, sibling, grandparent, grandchild, significant other, or other lawful representative

within twenty (20) days after receipt of the complaint of misconduct. In cases in which the

recording is not released to the public pursuant to this section, the local law enforcement agency

shall notify the person whose privacy interest is implicated, if contact information is known, within

twenty (20) days after receipt of the complaint of misconduct, and inform the person of his or her

right to waive the privacy interest.

     (e) A witness, victim, or criminal defendant may waive in writing the individual privacy

interest that may be implicated by public release. Upon receipt of a written waiver of the applicable

privacy interest, accompanied by a request for release, the law enforcement agency may not redact

or withhold release to protect that privacy interest.

     (f) Any video that would substantially interfere with or jeopardize an active or ongoing

investigation may be withheld from the public; except that the video shall be released no later than

forty-five (45) days from the date of the allegation of misconduct. In all cases when release of a

video is delayed in reliance on this subsection, the attorney general shall prepare a written

explanation of the interference or jeopardy that justifies the delayed release, contemporaneous with

the refusal to release the video. Upon release of the video, the attorney general shall release the

written explanation to the public.

     (g) If criminal charges have been filed against any party to the incident, that party shall file

any constitutional objection to the release of the recording in the pending criminal case before the

twenty-one (21) day period expires. In cases in which there is a pending criminal investigation or

prosecution of a party to the incident, the twenty-one (21) day period shall begin from the earliest

of:

     (1) The date of appointment of counsel;

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     (2) The filing of an entry of appearance by counsel; or

     (3) The election to proceed pro se by the defendant in the criminal prosecution made on

the record before a judge. If the defendant elects to proceed pro se in the criminal case, the court

shall advise the defendant of the twenty-one (21) day deadline provided in subsection (a) of this

section, for the defendant to file any constitutional objection to tge release of the recording in the

pending criminal case as part of the court's advisement. The court shall hold a hearing on any

objection no later than seven (7) days after it is filed and issue a ruling no later than three (3) days

after the hearing.

     42-160-7. Annual reports.

     (a) Beginning July 1, 2023, and every July 1 thereafter, the attorney general shall create an

annual report including all of the information that is reported to the attorney general pursuant to

subsection (b) of this section, aggregated and broken down by the law enforcement agency that

employs peace officers, along with the underlying data.

     (b) Beginning January 1, 2023, and every January 1 thereafter, the Rhode Island state police

and each local law enforcement agency that employs peace officers shall provide an annual report

to the attorney general containing the following information:

     (1) All use of force by its peace officers that results in death or serious bodily injury,

including:

     (i) The date, time, and location of the use of force;

     (ii) The perceived demographic information of the person contacted; provided, that the

identification of these characteristics is based on the observation and perception of the peace officer

making the contact and other available data;

     (iii) The names of all peace officers who were at the scene, identified by whether the peace

officer was involved in the use of force or not; except that the identity of other peace officers at the

scene not directly involved in the use of force shall be identified by the officer's identification

number unless the peace officer is charged criminally or is a defendant to a civil suit arising from

the use of force;

     (iv) The type of force used, the severity and nature of the injury, whether the peace officer

suffered physical injury, and the severity of the peace officer's injury;

     (v) Whether the peace officer was on duty at the time of the use of force;

     (vi) Whether a peace officer unholstered a weapon during the incident;

     (vii) Whether a peace officer discharged a firearm during the incident;

     (viii) Whether the use of force resulted in a law enforcement agency investigation and the

result of the investigation; and

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     (ix) Whether the use of force resulted in a citizen complaint and the resolution of that

complaint;

     (2) All instances when a peace officer resigned while under investigation for violating

department policy;

     (3) All data relating to contacts conducted by its peace officers, including:

     (i) The perceived demographic information of the person contacted; provided, that the

identification of these characteristics is based on the observation and perception of the peace officer

making the contact and other available data;

     (ii) Whether the contact was a traffic stop;

     (iii) The time, date, and location of the contact;

     (iv) The duration of the contact;

     (v) The reason for the contact;

     (vi) The suspected crime;

     (vii) The result of the contact, such as:

     (A) No action, warning, citation, property seizure, or arrest;

     (B) If a warning or citation was issued, the warning provided or violation cited;

     (C) If an arrest was made, the offense charged; and

     (D) If the contact was a traffic stop, the information collected, which is limited to the driver;

     (viii) The actions taken by the peace officer during the contact, including, but not limited

to, whether:

     (A) The peace officer asked for consent to search the person, and, if so, whether consent

was provided;

     (B) The peace officer searched the person or any property, and, if so, the basis for the

search and the type of contraband or evidence discovered, if any;

     (C) The peace officer seized any property and, if so, the type of property that was seized

and the basis for seizing the property;

     (D) A peace officer unholstered a weapon during the contact; and

     (E) A peace officer discharged a firearm during the contact;

     (4) All instances of unannounced entry into a residence, with or without a warrant,

including:

     (i) The date, time, and location of the use of unannounced entry;

     (ii) The perceived demographic information of the subject of the unannounced entry;

provided, that the identification of these characteristics is based on the observation and perception

of the peace officer making the entry and other available data;

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     (iii) Whether a peace officer unholstered a weapon during the unannounced entry; and

     (iv) Whether a peace officer discharged a firearm during the unannounced entry.

     (c) The Rhode Island state police and local law enforcement agencies shall not report the

name, address, social security number, or other unique personal identifying information of the

subject of the use of force, victim of the official misconduct, or persons contacted, searched, or

subjected to a property seizure. Notwithstanding any provision of law to the contrary, the data

reported pursuant to this section shall be available to the public.

     (d) The attorney general shall maintain a statewide database with data collected pursuant

to this section, in a searchable format, and publish the database on its website.

     (e) The Rhode Island state police and any local law enforcement agency that fails to meet

its reporting requirements pursuant to this section is subject to the suspension of its funding by its

appropriating authority.

     42-160-8. Documented excessive force.

     Notwithstanding any provision of law, if any peace officer is convicted of or pleads guilty

or nolo contendere to a crime involving the unlawful use or threatened use of physical force, a

crime involving the failure to intervene in the use of unlawful force, or is found civilly liable for

the use of unlawful physical force, or is found civilly liable for failure to intervene in the use of

unlawful force, the chief law enforcement officer for the offender's department shall impose

discipline up to and including termination to the extent permitted by the provisions of chapter 28.6

of title 42.

     42-160-9. Restricted force in response to protests.

     In response to a protest or demonstration, a law enforcement agency and any person acting

on behalf of the law enforcement agency shall not:

     (1) Discharge kinetic impact projectiles and all other non- or less-lethal projectiles in a

manner that targets the head, pelvis, or back;

     (2) Discharge kinetic impact projectiles indiscriminately into a crowd; or

     (3) Use chemical agents or irritants, including pepper spray and tear gas, prior to issuing

an order to disperse in a sufficient manner to ensure the order is heard and repeated if necessary,

followed by sufficient time and space to allow compliance with the order.

     42-160-10. Civil action for deprivation of rights.

     (a) A peace officer, employed by a local government who, under color of law, subjects or

causes to be subjected, including failing to intervene, any other person to the deprivation of any

individual rights that create binding obligations on government actors secured by the United States

Constitution, or by the state constitution, is liable to the injured party for legal or equitable relief or

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any other appropriate relief.

     (b)(1) Statutory immunities and statutory limitations on liability, damages, or attorneys'

fees shall not apply to claims brought pursuant to this section.

     (2) Qualified immunity is not a defense to liability pursuant to this section.

     (c) In any action brought pursuant to this section, a court shall award reasonable attorneys'

fees and costs to a prevailing plaintiff. In actions for injunctive relief, a court shall deem a plaintiff

to have prevailed if the plaintiff's suit was a substantial factor or significant catalyst in obtaining

the results sought by the litigation. When a judgment is entered in favor of a defendant, the court

may award reasonable costs and attorney fees to the defendant for defending any claims the court

finds frivolous.

     (d) Notwithstanding any other provision of law, a peace officer's employer shall indemnify

its peace officers for any liability incurred by the peace officer and for any judgment or settlement

entered against the peace officer for claims arising pursuant to this section; except that, if the peace

officer's employer determines that the officer did not act upon a good faith and reasonable belief

that the action was lawful, then the peace officer shall be personally liable and shall not be

indemnified by the peace officer's employer for five percent (5%) of the judgment or settlement or

twenty-five thousand dollars ($25,000), whichever is less. Notwithstanding any provision of this

section to the contrary, if the peace officer's portion of the judgment is uncollectible from the peace

officer, the peace officer's employer or insurer shall satisfy the full amount of the judgment or

settlement. A public entity does not have to indemnify a peace officer if the peace officer was

convicted of a criminal violation for the conduct from which the claim arises.

     (5) A civil action pursuant to this section shall be commenced within three (3) years after

the cause of action accrues.

     42-160-11. Use of force by peace officers.

     (a) Peace officers, in carrying out their duties, shall apply nonviolent means, when possible,

before resorting to the use of physical force. A peace officer may use physical force only if

nonviolent means would be ineffective in effecting an arrest, preventing an escape, or preventing

an imminent threat of serious bodily injury or death to the peace officer or another person.

     (b) When physical force is used, a peace officer shall:

     (1) Not use deadly physical force to apprehend a person who is suspected of only a minor

or nonviolent offense;

     (2) Use only a degree of force consistent with the minimization of injury to others;

     (3) Ensure that assistance and medical aid are rendered to any injured or affected persons

as soon as practicable; and

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     (4) Ensure that any identified relatives or next of kin of persons who have sustained serious

bodily injury or death are notified as soon as practicable.

     (c) A peace officer is prohibited from using a chokehold upon another person. For the

purposes of this subsection, "chokehold" means a method by which a person applies sufficient

pressure to a person to make breathing difficult or impossible and includes, but is not limited to,

any pressure to the neck, throat, or windpipe that may prevent or hinder breathing or reduce intake

of air. "Chokehold" also means applying pressure to a person's neck on either side of the windpipe,

but not to the windpipe itself, to stop the flow of blood to the brain via the carotid arteries.

     (d) A peace officer is justified in using deadly physical force to make an arrest only when

all other means of apprehension are unreasonable given the circumstances and:

     (1) The arrest is for a felony involving conduct including the use or threatened use of deadly

physical force;

     (2) The suspect poses an immediate threat to the peace officer or another person; and

     (3) The force employed does not create a substantial risk of injury to other persons.

     (e) A peace officer shall identify himself or herself as a peace officer and give a clear verbal

warning of his or her intent to use firearms or other deadly physical force, with sufficient time for

the warning to be observed, unless to do so would unduly place peace officers at risk of injury, or

would create a risk of death or injury to other persons. Notwithstanding any other provisions in this

section, a peace officer is justified in using deadly force if the peace officer has an objectively

reasonable belief that a lesser degree of force is inadequate and the peace officer has objectively

reasonable grounds to believe, and does believe, that he/she or another person is in imminent danger

of being killed or of receiving serious bodily injury.

     42-160-12. Duty to report use of force by peace officers – Duty to intervene.

     (a) A peace officer shall intervene to prevent or stop another peace officer from using

physical force that exceeds the degree of force permitted, if any, by the provisions of this chapter.

This intervention shall include, but not be limited to, circumstances in which the other peace officer

is carrying out an arrest of any person, placing any person under detention, taking any person into

custody, booking any person, or in the process of crowd control or riot control, without regard for

chain of command.

     (b) A peace officer who intervenes as required by subsection (a) of this section, shall report

the intervention to his or her immediate supervisor.

     (c) At a minimum, the report required by subsection (b) of this section shall include the

date, time, and place of the occurrence; the identity, if known, and description of the participants;

and a description of the intervention actions taken. This report shall be made in writing within ten

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(10) days of the occurrence of the use of such force and shall be appended to all other reports of

the incident.

     (d) A member of a law enforcement agency shall not discipline or retaliate in any way

against a peace officer for intervening as required by subsection (a) of this section, or for reporting

unconstitutional conduct, or for failing to follow what the officer reasonably believes is an

unconstitutional directive.

     (e) Any peace officer who fails to intervene to prevent the use of unlawful force as

prescribed in this section commits a misdemeanor punishable by confinement of not more than one

year and/or a fine of not more than one thousand dollars ($1,000). Nothing in this subsection shall

prohibit or discourage prosecution of any other criminal offense related to failure to intervene,

including a higher charge, if supported by the evidence.

     (f) When an internal investigation finds that a peace officer failed to intervene to prevent

the use of unlawful physical force as prescribed in this section, this finding shall be presented to

the attorney general so that he or she can determine whether charges should be filed pursuant to

this section; provided, however, nothing in this subsection shall prohibit the attorney general from

charging an officer with failure to intervene before the conclusion of any internal investigation.

     (g) In addition to any criminal liability and penalty under the law, when an internal

investigation finds that a peace officer failed to intervene as required by subsection (a) of this

section in an incident resulting in serious bodily injury or death to any person, the peace officer's

employer shall subject the peace officer to discipline, up to and including termination, pursuant to

the provisions of chapter 28.6 of title 42.

     (h) In a case in which the department of the attorney general charges a peace officer with

offenses related to and based upon the use of excessive force but does not file charges against any

other peace officer or officers who were at the scene during the use of force, the attorney general

shall prepare a written report explaining the attorney general's basis for the decision not to charge

any other peace officer with any criminal conduct and shall publicly disclose the report to the

public; except that if disclosure of the report would substantially interfere with or jeopardize an

ongoing criminal investigation, the attorney general may delay public disclosure for up to forty-

five (45) days. The attorney general shall post the written report on its website. Nothing in this

section is intended to prohibit or discourage criminal prosecution of an officer who failed to

intervene for conduct in which the facts support a criminal charge, including under a complicity

theory, or for an inchoate offense.

     42-160-13. Training.

     Each law enforcement agency in the state shall train its peace officers regarding compliance

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with the provisions of this chapter.

     42-160-14. Peace officer – Involved death investigations - Disclosure.

     Notwithstanding any other law to the contrary, with respect to a peace officer involved in

an investigation resulting in death, if the attorney general refers the matter under investigation to

the grand jury, the attorney general shall release a statement at the time the matter is referred to the

grand jury disclosing the general purpose of the grand jury's investigation. If a no true bill is

returned, the grand jury shall issue and publish a report.

     42-160-15. Profiling – Officer identification.

     (a) If a peace officer shall make a contact, whether consensual or nonconsensual, for the

purpose of enforcing the law or investigating possible violations of the law, then after making

contact, a peace officer shall report to the peace officer's employing agency:

     (1) The perceived demographic information of the person contacted; provided, that the

identification of these characteristics is based on the observation and perception of the peace officer

making the contact and other available data;

     (2) Whether the contact was a traffic stop;

     (3) The time, date, and location of the contact;

     (4) The duration of the contact;

     (5) The reason for the contact;

     (6) The suspected crime;

     (7) The result of the contact, such as:

     (i) No action, warning, citation, property seizure, or arrest;

     (ii) If a warning or citation was issued, the warning provided or violation cited;

     (iii) If an arrest was made, the offense charged;

     (iv) If the contact was a traffic stop, the information collected, which is limited to the driver;

     (6) The actions taken by the peace officer during the contact, including, but not limited to,

whether:

     (i) The peace officer asked for consent to search the person, vehicle, or other property, and,

if so, whether consent was provided;

     (ii) The peace officer searched the person or any property, and, if so, the basis for the search

and the type of contraband or evidence discovered, if any;

     (iii) The peace officer seized any property, and, if so, the type of property that was seized

and the basis for seizing the property;

     (iv) A peace officer unholstered a weapon during the contact; and

     (v) A peace officer discharged a firearm during the contact.

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     (b) A peace officer shall provide, without being asked, the peace officer's business card to

any person whom the peace officer has detained in a traffic stop but has not cited or arrested. The

business card shall include identifying information about the peace officer, including, but not

limited to, the peace officer's name, division, precinct, and badge or other identification number; a

telephone number that may be used, if necessary, to report any comments, positive or negative,

regarding the traffic stop; and information about how to file a complaint related to the contact. The

identity of the reporting person and the report of any such comments that constitute a complaint

shall initially be kept confidential by the receiving law enforcement agency, to the extent permitted

by law. The receiving law enforcement agency shall be permitted to obtain some identifying

information regarding the complaint to allow initial processing of the complaint. If it becomes

necessary for the further processing of the complaint for the complainant to disclose the

complainant's identity, the complainant shall do so or, at the option of the receiving law

enforcement agency, the complaint may be dismissed.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- LAW ENFORCEMENT

INTEGRITY ACT

***

     This act would require that all peace officers use body cameras with certain specified

limited exceptions. Wrongful failure to use the camera would subject the peace officer to discipline.

The act would also specify circumstances when camera recordings shall be released. The act also

would specify and restrict the use of force by peace officers and provide for various reporting

requirements.

     This act would take effect upon passage.

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