Body-Worn Camera Open Records Requests
House Bill 373, a KLC Initiative passed during the 2018 session, created a new law that reduces the burden on cities in complying with open records requests involving body-worn camera recordings. Now, KRS 61.168 and KRS 61.169 govern disclosure of body-worn camera recordings. Prior to the changes, the body-worn camera recordings were treated like any other public record. The new statutes balances continued transparency of law enforcement agencies with citizens’ right to privacy and the burden on cities in complying with the requests.
The following flow chart walks through the statute to help you determine what may or may not be disclosed under the new statute. While this chart provides general guidance, each disclosure determination will be very fact-specific. Make sure to consult your city attorney or KLC Legal Services for additional assistance.
When releasing body-worn camera recordings to an attorney pursuant to KRS 61.168(5)(d) and 61.169, cities may utilize the Affidavit In Support of Limited Release of Body-Worn Camera Recordings. The Affidavit User Guide and other information can be found here, as well as a Word version of the affidavit.
Important Information from the Kentucky Retirement Systems for Cities Regarding the Reemployment of Retired Police Officers
SB 206, currently codified as KRS 95.022, and effective July 15, 2016, provides that qualified retired police officers employed by a city shall continue to receive the benefits they were eligible to receive upon retirement, but shall not accrue any additional retirement or health benefits during reemployment. Additionally, retirement and any health contributions shall not be paid by the city to the KRS or the Kentucky Employees Health Plan on the reemployed retired officer.
The Kentucky Retirement Systems has released information on the restrictions, qualifications and the required KRS forms for cities that hire or currently have hired retired sworn police officers or state troopers. That information is located here.
For any questions on SB 206 contact Andrea Shindlebower Main, Personnel Services Specialist at 800.876.4552.
The Kentucky Supreme Court has recently clarified the constitutional requirements for DUI checkpoints. KLC Legal Staff has summarized the Commonwealth v. Cox case and the four factors that law enforcement must be aware of in setting up DUI checkpoints.
On December 17, 2015, the Kentucky Supreme Court ruled that the Kentucky State Police conducted an illegal DUI checkpoint that violated a motorist's state and federal constitutional rights against unreasonable searches and seizures in Commonwealth v. Cox, 2013-SC-000618-DG.
The court reiterated that, "We must err on the side of caution when dealing with the most fundamental of those rights granted to our citizens to be free from unreasonable searches and seizures…In circumstances where the practices and procedures employed by law enforcement are constitutionally ambiguous, it is our duty to protect individuals against the risk of potentially unreasonable seizure without any suspicion of wrongdoing. Though we do not require rigid compliance with the Buchanon guidelines, we cannot continue to soften the edges of what is constitutionally reasonable".
In light of this ruling, it is a good time to review the safeguards required by Commonwealth v. Buchanon, 122 S.W.3d 565 (2003), that our city law enforcement officers must follow and address why the actions of the KSP in the Cox case were found to violate constitutional principles.
The United States Supreme Court has affirmed that DUI checkpoints satisfy a strong state interest in removing drunk drivers from state highways and this state interest outweighs the brief intrusion to a private motorist at a roadblock. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450 (1990).
The Buchanon case established four general guidelines for law enforcement to ensure that Kentucky DUI checkpoints are in line with the federal Supreme Court Fourth Amendment analysis. These requirements are:
(1) Important decisions regarding location, time and procedures governing particular checkpoints should be determined by supervisory law enforcement officers, rather than field officers. Any lower ranking officer wishing to establish a checkpoint should seek supervisory permission. Locations should be chosen so as not to affect public safety and should bear some reasonable relation to the conduct that law enforcement is seeking to curtail.
(2) Law enforcement officials working the checkpoint should comply with the procedures established by their superior officers so that each motorist is dealt with in the same manner. Officers in the field should not have unfettered discretion in deciding which vehicles to stop and how each stop is handled.
(3) The nature of the checkpoint should be readily apparent to approaching motorists. At least some of the law enforcement officers present at the scene should be in uniform and with marked patrol cars. Signs warning of the checkpoint ahead are also advisable.
(4) The length of the stop is also an important factor in determining the intrusiveness of the checkpoint. Motorists should not be detained any longer than necessary to perform a cursory examination of the vehicle so as to look for signs of intoxication or to check for license and registration. If, during the initial stop, the officer has reasonable suspicion that the motorist violated the law, the motorist should be asked to pull to the side, so that other motorists may proceed.
The court in Buchanon noted that these four factors were not exhaustive and that a violation of one of the factors does not necessarily result in a constitutional violation. Notwithstanding this statement [LMR1] made by our state Supreme Court in the Cox opinion, KLC believes that Cox signals a stricter compliance view of the requirements that law enforcement will have to affirmatively establish for DUI checkpoints in the future.
The court found that the KSP met the first requirement as to time, location and procedure, though it was on ambiguous evidence. The officers conducting the roadblock did seek approval from supervising officers. The location selected was from a list of pre-approved KSP sites and the court found a presumption that the pre-approved location was related to the KSP's goals of finding intoxicated motorists.
In addition, the court found that the evidence as to the second requirement was satisfied, though the evidence as to established procedures was less clear. There was nothing to suggest that the troopers conducting the roadblock failed to follow their supervisor's directions. However, the court also noted that there was no evidence to suggest that a supervisor provided any direction or suggested procedure for treating motorists in the same manner. The court concluded that despite no apparent express policy for uniform treatment of stopped drivers at the roadblock, the facts showed that the troopers did not exercise unfettered discretion in operating the checkpoint. The troopers testified that every approaching vehicle was stopped. This portion of the case shows the importance of your local department having clearly established procedures and criteria for operating DUI checkpoints.
Finally, the court ruled that the fourth requirement as to the length of the individual stops was met in that the stops were no more intrusive than necessary to obtain license and registration and quickly ascertain if there existed a reasonable suspicion of DUI.
The reversal of Cox's conviction finding that the checkpoint violated federal and state search and seizure protections hinged on the failure of the KSP to follow the notice procedures established in the third Buchanonrequirement. The court ruled that the requirement effectively requires adequate notice and the evidence failed to establish that the checkpoint was readily apparent to approaching motorists. The court noted that the KSP troopers were already onsite at the checkpoint at the same time their supervisors approved the checkpoint and the operation began immediately upon approval. There were no warning signs posted alerting approaching motorists of the checkpoint and there was no announcement of the checkpoint to the media. The court also found fault in that although the troopers were in uniform, they were not operating emergency lights at the checkpoint. The court concluded that there was not adequate notice because the roadblock began almost simultaneously with the supervisors' approval, without any apparent concern for giving motorists prior notice of the checkpoint implicitly required by Buchanon.
In light of the Cox decision, we encourage our member cities to review their existing DUI checkpoint policies with an eye towards confirming that their policies meet the four Buchanon requirements. In addition, we encourage cities to establish documentary safeguards so that if a checkpoint is challenged, a reviewing court can easily see that the procedures and supervisory safeguards required by our federal and state constitutions as to searches and seizures in conducting a DUI checkpoint were followed.
Should you have any questions on DUI checkpoint procedure, please contact KLC Member Legal Services at 800.876.4552.
Recapturing Peace Officer Training Costs
A common scenario that we hear from our cities about is when an eager peace officer is hired and later takes a job with another law enforcement agency. Generally, this is after completing his Department of Criminal Justice Training, but before his initial contract with the city expires. What are the city’s options to recapture the peace officer’s training costs?
KRS §70.290 deals with the reimbursement of a law enforcement agency when a peace officer accepts employment with another agency while under contract. At first glance, the statute can appear to be very confusing. In actuality, it is a fairly straightforward prorated calculation that takes into account the training costs provided by the Department of Criminal Justice Training.
City police departments may, as a condition of employment, require a newly hired police officer who will participate in the Kentucky Law Enforcement Foundation Fund Program to enter into an employment contract for a period not to exceed three years from the date of graduation from the Department of Criminal Justice Training or other training approved by the Kentucky Law Enforcement Council.
If a peace officer who has entered into a contract authorized by the statute accepts employment with another law enforcement agency, the subsequent agency has to reimburse the initial agency that hired the officer for the actual costs associated with the initial hire (application process, training costs, equipment costs, salary, fringe benefits, etc.). The initial law enforcement agency hiring the peace officer must be reimbursed for the costs from the time of the officer’s initial application until graduation from the Department of Criminal Justice Training.
The reimbursement amount must be prorated by the amount of time that the officer actually completed of the employment contract. In addition, after the pro rata amount is determined, the reimbursement amount must be further reduced by the cost of the officer training provided by the Department of Criminal Justice Training.
If a officer has been employed by a state law enforcement agency for three years or less and is hired away by a city, the city must reimburse the state law enforcement agency for the costs of the initial hiring (application process, training costs, equipment costs, salary, fringe benefits, etc.). The state law enforcement agency must be reimbursed for costs from the time of the officer’s initial application until graduation from the Kentucky Law Enforcement Council-approved training academy. Again, the amount of reimbursement must be prorated based on a percentage of time that the peace officer was employed by the state agency.
As always, if you have any questions, please feel free to contact KLC Member Legal Services at 800.876.4552.