Body worn camera questions & issues

Body worn camera questions issues

Some media commentators claim that the public would know all that we need to know about the Michael Brown shooting in Ferguson, Missouri, if Officer Darren Wilson had been equipped with a body worn camera.

The same claim was heard locally in the case of Darrien Hunt, shot while wielding a samurai sword in Saratoga Springs, Utah. Salt Lake County District Attorney Simarjit S. Gill cited the evidence gleaned from a body worn camera in his decision to not charge the troopers involved in the fatal shooting of Dillon Taylor. Mr. Gill stated, “It’s a very important piece of evidence. It assists everybody to get to the truth in a transparent and objective way.”

Recording public events is not new. There are an estimated 30 million cameras shooting 4 billon hours of video per week. 120 million smart phones, most with video recording capability, were sold in the United States last year.

Some question the value of the body worn cameras in relation to their cost. I frequently help defend litigation against troopers accused of excessive force or other improper conduct. The $500 or $600 cost of the camera is miniscule compared to the cost of defending a lawsuit. If a video recording prevents a lawsuit from being filed in the first place, then it’s value is truly incalculable. Body worn cameras are just a tool to help show that police use other tools properly.

Despite the public outcry for body worn cameras for all police departments, there are limitations, drawbacks and a great many unknowns that accompany the obvious and not-so-obvious benefits. A recent study from the United States Department of Justice’s Office of Justice Programs reports that: “Independent research on body-worn camera technology is urgently needed. Most of the claims made by advocates and critics of the technology remain untested. Federal agencies that support research and development should consider providing funding streams for comprehensive research and evaluation of body-worn camera systems. Researchers should examine all aspects of the implementation and impact of the technology—from its perceived civilizing effect, evidentiary benefits, and impact on citizen perceptions of police legitimacy to its consequences for privacy rights, the law enforcement agency, and other outside stakeholders.”

Since I began studying the legal, practical and policy issues associated with body worn cameras several years ago, I’ve heard from over 500 police agencies with their thoughts and experiences on body worn cameras. The overwhelming common themes in their comments include: “we were skeptical, now we love them; public records challenges are compounded; line officers were nervous, now they really like them.”

Cameras are everywhere. Recording of police activity is a fact of life. Sometimes those behind the camera lens are trying to goad officers into a reaction. Perhaps that is what happened with the former officer in Ferguson, Missouri, who became an involuntary YouTube star. In the widely-viewed video, the officer approaches the protesters and says “I will f—ing kill you, get back!” After some crosstalk between protesters, a man asks the officer: “What’s your name, sir?” The officer’s response? “Go f— yourself.” And that becomes the title of the YouTube video.

Groups such as Copwatch are more and more frequently recording officers. Police agencies don’t have a say in how those recordings are edited and circulated. The ACLU has even launched an app for recording police and sending the video.

Remember that television reporters at KTLA in Los Angeles carefully edited the Rodney King video and most of America saw only what KTLA thought would bring in ratings. What was missing in that video and in the infamous Ferguson video? The preamble—the event that lead to direct police-citizen contact.

With body worn cameras, troopers are better able to record the precipitating events.

Do cops behave better when they are recorded?

The research is divided on whether body-worn video recording will significantly impact trooper behavior. Intuition and anecdote tell me that it does. We recently had this discussion in our family (in a family with one deputy sheriff daughter and one federal agent son). My daughter wears a TASER Axon camera and likes having her citizen encounters recorded. My son’s federal agency doesn’t record at all. We agreed that the camera impacts officer behavior.

Equally interesting and important is the question of whether body-worn video recording will significantly impact citizen behavior. If citizens know that they are on video, will citizens refrain from behavior that could reasonably require police officers to respond with some measure of force? Citizens may not only behave better, but they may be less likely to make false claims of police misconduct when they know that there is a video record of their encounter with the police.

When there is a video recording, it usually works in the officers’ favor. A 2004 study by the International Association of Chiefs of Police showed that in cases where video recordings were available, the recordings exonerated the police 93% of the time. Certainly an agency administrator wants to know about the 93%. We all want to know about the 7%. A video recording may well document misconduct that the agency must address.

At Rialto Police Department in California, Police Chief Tony Farrar studied the impact of his agency’s use of body worn cameras as part of his graduate thesis work at Cambridge University in Great Britain. With support from TASER International, he studied two groups, one equipped with a TASER Axon camera worn on the officers’ eyeglasses and the other group without cameras.

Chief Farrar’s published results created a great buzz in the public safety world. His study showed that use of body worn cameras reduced use-of-force incidents by 59% and reduced citizens’ complaints by an astonishing 87.5%. Mesa Police Department experienced similar results. There were nearly three times more complaints against officers without body worn cameras, eight months after camera deployment. On the flip side, there were 40% fewer total complaints for officers with body worn cameras during pilot program and 75% fewer use of force complaints for officers with cameras during pilot program.

Implementation of a body worn camera program will be much smoother with participation from line officers. Officers who wear cameras need to be trained in their use, from recording and downloading video to proper equipment maintenance. Officers who understand the technology and who see the benefits may be used as early-adopter ambassadors within the agency.

As an agency introduces body worn cameras into the community, public information officers should reach out through the media to explain the reasons, deployment costs, benefits, and the limitations of the technology. Consider using the agency’s social media outlets to educate the community.

One of the challenges is storage. Body worn camera video generates an enormous amount of electronic data. Major vendors offer a cloud-based solution, or agencies can rely on their IT department to figure out the storage challenge. Mesa Police Department has added three full-time employees to its detective bureau to help with the cataloging and storing tasks. Body worn camera use may bring an avalanche of public disclosure and media requests. The media quickly will have an expectation that incidents are recorded and that they should quickly get a copy to help them sell their product. Consider whether a particular system has an easy-to-use editing or blurring tool.

In Poulsbo, Washington, a new Youtube channel is pushing the local police agencies to reconsider the use of body-mounted cameras. “Police Video Requests” anonymously asked Poulsbo Police Department for every minute of body camera video it has ever recorded. The department figures it will take three years to fill that request. Poulsbo Police Chief Al Townsend believes it is a huge privacy concern, as officers often see people on their worst days. “People with mental illness, people in domestic violence situations; do we really want to have to put that video out on YouTube for people? I think that’s pushing it a little bit,” he said. Now the City of Poulsbo says it may have to suspend or even end its police body cam program.

Many corrections agencies are finding the value of body cameras inside custody institutions. For example, the Stephenson County (Illinois) Sheriff’s Office just equipped all of its jail officers with body worn cameras. They record during security checks and any physical encounters with inmates. In McHenry County (also in Illinois), corrections officers have worn cameras for several years. The Louisville (Kentucky) Metro Detention Center has had great success with them as litigation prevention tools. If body worn cameras are used in a jail, there must be policy provision for restricting recording in strip searches, showers and other areas of personal privacy. That said, there may be situations where a recording of a strip search may be helpful.

Documenting the knock-and-announce portion of a warrant execution, and documenting how troopers make entry and complete the search creates a valuable record in the event of litigation or a suppression motion. A word of caution: watch for inadvertent disclosure of tactics and undercover officer identification in responding to a request to release a recording of an arrest or search warrant execution.

One police chief told me that: “The videos have been beneficial in investigating use of force by officers. Although sometimes the camera may be obstructed during a physical struggle, the audio recording proves to be very useful.”

Troopers should have some discretion to turn off the recorder. Experienced investigators know that some folks just won’t talk openly when a recorder is running. The Mesa Police Department spokesman noted, “We have definitely seen people being more reluctant to give information when they know that they are being videotaped.”

Agencies may fall victim to over-reliance on recording. I frequently serve as an expert witness in police shootings and TASER-associated deaths. I just returned from a trial in a major U.S. city where the police/citizen encounter that led to the citizen’s death was recorded. This encounter, like many police/ citizen encounters, happened at night in low light conditions and the participants were moving quickly, making the focus fuzzy, turning the camera from the action, and creating a marginally useful recording. Yet the jury expects a Hollywood production quality video when the trooper is wearing a camera. Remember—the public must be educated on the limitations of the camera.

Cameras may also provide information that was not available to a trooper at the moment of making a critical decision. For example, a camera equipped with infrared technology may well “see” in the dark when a trooper cannot. Remember, too, that a point of aim camera may not reach peripheral vision, may not have quickly transition from light to dark and vice versa and may not capture images at the same speed of the human eye. What the camera “sees” is merely a piece of evidence for an investigation. It is not the beginning and the end of collecting all the available facts and all the available statements.

Be sure to involve your agency legal counsel in the discussion of how body worn camera recordings will be stored and made available for court use. Also be sure that the recordings are listed in your agency’s record retention schedule.

Where lawful, a trooper should activate the recorder any time he or she believes it would be appropriate or valuable to record an incident. Specifically, Lexipol policy (followed by the Utah Highway Patrol) recommends that the recorder should be activated in any of the following situations:

All enforcement and investigative contacts including stops and field interview situations.

Traffic stops including, but not limited to, traffic violations, stranded motorist assistance and all interdiction stops.

Self-initiated activity in which a trooper would normally notify the Communications Center.

Any other contact that becomes adversarial after the initial contact.

Troopers should remain sensitive to the dignity of all individuals being recorded and exercise sound discretion to respect privacy by discontinuing recording whenever it reasonably appears to the trooper that privacy interests may outweigh any legitimate law enforcement interest in recording. Requests by members of the public to stop recording should be considered using this same criterion.

At no time is an officer expected to jeopardize his/her safety in order to activate a recorder or change the recording media.

When preparing written reports, troopers should review their recordings as a resource. However, troopers should not use the fact that a recording was made as a reason to write a less detailed report. Supervisors should review relevant recordings any time they are investigating alleged misconduct, reports of meritorious conduct or whenever such recordings would be beneficial in reviewing a trooper’s performance. A good supervisor will take the time to randomly review recordings to catch the trooper doing something exceptionally well.

Any agency using body worn cameras must be prepared to address the legal issues. One of the more obvious issues is the question of citizens’ privacy. Some states have all (not just two)-party consent laws that may limit police/citizen encounter recording. Utah does not. Only one person must know that an encounter is being recorded. Nonetheless, when reasonably possible it still is often a good idea, and just fundamentally polite as well as a provision of Lexipol policy, to tell a citizen that the encounter is being recorded.

I spoke last year to an international conference on an increasingly common, yet still unsettled, question of whether a trooper should be able to review a video recording of a critical incident (such as a shooting) before he/she completes a statement or interview. Some attorneys or investigators may have a definite preference. Consult with your legal counsel on this issue. Attorneys must remember that Graham v. Connor prescribes that troopers be judged on the reasonableness of what the trooper perceived, not what the body worn camera captured.

Civil liberty advocates raise concerns over recording in homes and other places where citizens may wish to retain privacy. Some activists even raise the question of capturing images and cataloging them for use in facial recognition software programs. One advocacy group recently called for a step back until agencies develop a sensible policy that protects individual rights.

The ACLU is a cautious supporter of increased body worn camera use. According to the ACLU’s Jay Stanley, “The challenge of on-officer cameras is the tension between their potential to invade privacy and their strong benefit in promoting police accountability. Overall, we think they can be a win-win but only if they are deployed within a framework of strong policies to ensure they protect the public without becoming yet another system for routine surveillance of the public….”