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Monday, July 11, 2016

Police Body Cameras: Not a Cure-All, But a Step in the Right Direction

The Wall Street Journal has this article from last week on police body cameras and the Alton Sterling shooting. The Journal notes that while footage of the shooting was captured on video, body cameras that the police officers were wearing did not pick up any footage. The officers reported that their "lapel cameras became dislodged while trying to subdue 37-year-old Alton Sterling."

From the article:

The shooting, which was filmed by several bystanders, came after one of the officers appeared to kneel on Mr. Sterling and hold a gun to him. The incident shows the limitations of body cameras, even as cities scramble to outfit officers with the devices amid public outcry over police shootings. 
The devices are meant to provide greater police transparency and accountability, but over the past several years, police across the country have encountered a litany of issues with body cameras—from officers refusing to activate them, to disputes over when footage should be publicly released, to technical malfunctions. 
. . .

Some district attorney offices around the country have reported being overwhelmed with camera footage of even the most mundane police encounters, which can take time and resources to sift through. 
In other instances, the American Civil Liberties Union has criticized police departments for failing to publicly release camera footage during investigations of officer shootings or other use of force incidents. 
“The problems with law enforcement go much deeper than can be solved by cameras,” said Jay Stanley, senior policy analyst for the ACLU. “They are a tool, which have the potential to help if the officer is well-trained and feels it is more likely to protect them then be used against them.” 
Still, several studies have shown that use of force incidents and citizen complaints have both gone down after officers begin wearing cameras.
The ACLU objects to body camera policies that fail to address public access to body camera footage. The ACLU also argues that body camera usage that may be used to increase police surveillance capabilities. For a thorough statement of some of the most common objections to body camera policies, you can see the ACLU's letter to the Bureau of Justice Assistance in which the ACLU argues against a federal grant to aid in the purchase of body cameras by the Los Angeles Police Department.

While I see where the ACLU is coming from, I ultimately find their arguments unconvincing. In this post I would like to walk through ACLU's arguments against the LAPD grant outlined in their letter and why I ultimately think that it is generally better for police officers to have body cameras.

Context: The LAPD Policy

Before getting into the ACLU's arguments, the LAPD Policy that the ACLU is criticizing is here. The policy requires officers to wear body cameras and to activate the body cameras prior to vehicle stops, pedestrian stops, pursuits, searches, arrests, "uses of force," witness and victim interviews (with some exceptions), crowd management and control "involving enforcement or investigative contacts," among other instances. The policy requires the officer to record the entire contact and, in the event that the body camera is not activated, to document why the camera was not activated.

Officers are not required to record encounters or interviews with witnesses or victims if the person interviewed refuses to provide a statement if the statement is recorded "and the encounter is non-confrontational." Officers are not required to activate cameras if doing so would "risk the safety of a confidential informant, citizen informant, or undercover officer.  Officers also are not required to activate their body cameras if:

In the officer's judgment, a recording would interfere with his or her ability to conduct an investigation, or may be inappropriate, because of the victim or witness's physical condition, emotional state, age, or other sensitive circumstances (e.g., a victim of rape, incest, or other form of sexual assault.
The policy also prohibits "unauthorized use or release" of body camera footage and restricts modification or editing of footage. The policy encourages officers to tell members of the public when they are being recorded, but does not require officers to obtain consent before activating the cameras.  Officers are also required to review the body camera footage before writing reports, and before being interviewed by investigators in the event of a "categorical use of force" incident, including officer-involved shootings.

This doesn't cover everything in the policy, but I think it covers most of the relevant parts and hopefully will give enough context for the ACLU's criticism.

The ACLU's Criticism of the LAPD Body Camera Policy

The main arguments advanced by the ACLU are: (1) the policy fails to state whether and how the public can obtain body camera footage and thereby undermines transparency; (2) officers should not be permitted to review body camera footage before use of force investigations because officers may tailor their false accounts to the footage; (3) officers should not review body camera footage before writing reports or testifying because it gives them a "unfair advantage" over other witnesses and makes them appear more credible; (4) the use of body cameras may lead to pervasive surveillance and a chill on activities protected by the First Amendment; and (5) the process by which the policy was adopted was flawed.

I will discuss the first four arguments. For purposes of space (and in the interest of keeping the content of this post broadly applicable), I will not discuss the process by which the LAPD policy was adopted.

Public Access to Footage

The ACLU notes that the LAPD's body camera policy is silent on whether and how any body camera footage would be released to the public. The ACLU further notes that representatives of the LAPD, including Chief Charley Beck, have made statements that body camera footage would be treated as exempt from disclosure under California public records laws and would not be released absent a court order, but that the department may release footage if it is "beneficial." The ACLU contends that there should be a general policy of releasing body camera footage to the public with specified exceptions, such as situations in which release of the footage may compromise an ongoing investigation, or when release of the footage would harm privacy interests.

Public access to body camera footage could give the public valuable insight into everyday police activity, particularly for those who may never find themselves in a situation where they are confronted by police officers. A blanket policy of non-disclosure strikes me as a bit too absolute.

But the ACLU's argument has some contradictions. The ACLU stresses the need for public access to body camera footage in the event that a police officer uses deadly force against a suspect. As an example, the letter cites this LA Times article in which anonymous law enforcement sources stated that body camera footage showed the shooting of a homeless man. The footage, however, was not released because there was an ongoing investigation into the incident.

Let's say that footage in the above incident were released to the public. First, this would seem to contradict the ACLU's openness to restricting public access to body camera footage in instances where doing so may compromise an ongoing investigation. Second, even if we place investigations of police officers in a separate category, releasing the body camera footage to the public would give the investigated officer access to the footage as well (as he or she is a member of the public). As none other than the ACLU has argued, permitting an officer to review body camera footage prior to a use of force investigation may enable dishonest officers to tailor their lies to fit the footage.

Will I contradict this second argument in just a second? I suspect that I will! But I'm not the one writing a letter to the Bureau of Justice Assistance. I'm just a lawyer with a blog...

...who has one more point to make: even if the public is restricted from accessing body camera footage in excessive force cases, I don't think that this would warrant the absence of that body camera footage. Public outcry and support for those harmed by excessive force incidents may not be as strong, but at least the video would still exist -- and it would be obtainable through discovery in a future lawsuit. Ultimately, those who allege that use of force incidents involve excessive force will likely be helped more than harmed if police officers have body cameras.

Review of Footage Before Use of Force Investigations

The ACLU criticizes the LAPD policy requiring officers to review their body camera footage prior to being interviewed in categorical use of force cases, including officer-involved shooting incidents. The argument here is nuanced, so I will quote it at length:

Body-worn cameras hold the potential to address one of the most significant trust gaps around police use of force: the concern, particularly in communities most affected by police violence, that officers who have used serious or deadly force will simply lie about what happened to avoid discipline or prosecution. By providing an objective record of an incident, body-worn cameras can lessen an investigation’s dependence on the officer’s account and the officer’s credibility, helping restore confidence in the investigative process even for those that may not trust individual officers to be fully truthful. But allowing officers under investigation to view video before making a statement about a critical incident undermines this effort by providing officers who are inclined to lie the opportunity to do so in a manner consistent with the video evidence. Body-worn camera video, while helpful, will not capture everything from every angle. If an officer watches the video and discovers that certain elements that put them in a poor light happened not to have been captured—or that some moments when the subject is blocked, blurred or out of the frame provide an opportunity for the officer to say something happened—then the officer will feel at liberty to shade and color their account of events, if not to lie outright. (emphasis added)
The argument here is a tougher one. Officers who are indeed inclined to lie will likely abuse whatever resources they are provided -- whether it is an opportunity to conform their statements to reports, footage, eyewitness statements, or other evidence. Requiring officers to view body camera footage prior to an investigation may indeed help a dishonest officer tailor his or her lie to fit the supposedly objective facts.

On the other hand, an officer who is not inclined to lie may still honestly believe that events transpired in a manner that is contradicted by video footage. An honest officer who is unable to review contradictory footage prior to an investigation may be deemed a liar and face even more severe penalties. Having a chance to review the video before the investigation allows the officer to be forthcoming and admit to mistakes in his or her perception or judgment.

The tie breaker for me again is that even if a dishonest officer is being investigated, the presence of body camera footage is, on balance, preferable to the absence of the footage. The body camera limits a dishonest officer's ability to lie, and may well back the officer into a corner and force them to admit what really happened. Ultimately, the body camera footage is more evidence, and even an adept liar will begin to feel the heat when they realize that their story needs to fit with all of the other evidence available.

Review of Footage Before Writing Reports or Testifying

The ACLU criticizes the requirement that police officers review body before testifying. From the letter:
Where officers are allowed to review video, even their initial accounts and written reports will align closely with and contain corroborating details from video evidence—much more so than the statements of civilian witnesses that have not had the chance to review video. To jurors and others, such consistency may suggest that the officer perceived the incident more clearly, remembers it better, or is otherwise more reliable than other witnesses, rather than simply indicating that he alone had the benefit of reviewing the video. But precisely because allowing officers to review video makes their accounts seem more credibly consistent, LAPD’s policy of allowing officers to review video will create an appearance of bias—that LAPD will use body-worn camera video to “protect its own” and help its officers create testimony more credible than their actual memories—and will undercut public trust in the integrity of the investigative process.
I think this part of the argument is a bit of a stretch. First, police officers will already appear more comfortable testifying than other witnesses because of their familiarity with doing so. A large part of an officer's job is to testify in court, and repeat practice will likely make the officer's testimony appear more natural, confident, and professional. Second, any attorney cross-examining a police officer can simply ask the officer when they last reviewed their body camera footage (as many already do when asking about when the last time they reviewed their report). This tactic shows the jury that the testimony may not be based on a superior memory, but simply on the fact that the officer has prepared for their testimony.

Removing officers' ability to review videos prior to testifying can limit the facts presented to a jury, as an officer may forget things about the recorded incident. I doubt that the ACLU's predicted undercut in trust will occur, as the same logic can be used to argue against police review of reports prior to testimony, a common practice that is generally expected.

Surveillance Concerns

Finally, the ACLU is concerned that body camera footage can be used to film acts and events that are protected by the First Amendment. In particular, the ACLU is worried about facial recognition software being used in conjunction with the footage, and the fear that this use of technology will discourage people from engaging in protests.

The ACLU is correct that police may capture footage of behavior that is protected by the First Amendment. Indeed, the LAPD's policy requires officers to activate their camera during crowd management and control situations that involve enforcement or investigative contacts. This scenario will likely cover at least some behavior that falls under the First Amendment.

But will the use of body camera footage chill First Amendment behavior? Officers who are capturing footage would already be on scene and would be able to observe the protesters. More importantly, situations where officers confront protesters commonly give rise to instances that involve the alleged use of excessive force. Those who are protesting would likely want the assurance that any police misconduct is caught on camera.

Officers will indeed be able to collect more information through the use of body camera footage. And the footage can be used with facial recognition software to aid in scanning footage and identifying people. But because the officer already needs to be present for the footage to be taken, and because protesters will want documentation of police misconduct, I do not think that the added surveillance capabilities rises to the level to make this a compelling argument.

The Benefits of Body Cameras

Beyond the points raised in the arguments above, I think that there are several reasons why departments' adopting body cameras, even in a manner like the LAPD's, is desirable.

Exculpatory (or Nitpicky) Evidence

Regardless of how departments distribute body camera footage to the public in excessive force cases, this footage will be available to criminal defense attorneys. Indeed, if the video contains exculpatory evidence, the prosecution is required to turn the evidence over to the defense under Brady v. Maryland.

Body camera footage can be helpful to criminal defendants in numerous ways. The video evidence may contain exculpatory evidence -- such as admissions by co-defendants, improper stops or searches, or officer admissions regarding the merit of the case or the credibility of a witness. This exculpatory evidence can help defendants have their case thrown out before it even reaches the trial stage, and bolster the defense should the case go to trial.

Even if there are no case-shattering instances of exculpatory footage in a case, a criminal defendant may still use body camera footage to undermine the prosecution's case. A savvy defense attorney will likely find contradictions between the footage and an officer's testimony or report. The process of criminal investigation, often simplified and sanitized for a jury, can be revealed as a more complicated, real-world process.

Damning Evidence

Body camera footage may end up being just as helpful for the prosecutor as it is for the criminal defendant. The defendant may confess or make incriminating statements during an investigation. A jury is likely to find footage of the incriminating statement far more compelling than an officer recounting the statement.

Footage of other witnesses' statements may also be helpful, particularly if the witness changes their account as time goes on. Domestic violence victims, for instance, often reverse their statements as a case proceeds -- either to avoid repercussions or as part of the cycle of abuse. Footage of the victim's initial statement can capture both what the victim originally said and their demeanor when they made the statement, and this evidence can be extremely helpful in the prosecution of domestic violence cases.

Adopting Body Cameras Takes Time

Beyond the benefits that body camera footage can bring to criminal process and defense, one final reason why departments should be adopting body cameras sooner rather than later is because it will most likely take time to adopt a smooth and efficient system for using the cameras. Officers need to be trained, systems need to be updated to store and send footage quickly, and problems with audio, camera angles, and battery life will likely arise and need to be fixed.

While the ACLU is concerned with aspects of the LAPD's approach to body cameras, holding up the process for adopting body cameras altogether will delay the challenges of implementing the system. Even if aspects of the LAPD's body camera policy are incomplete or undesirable, adopting the policy in its current form leaves room for change in the future while dealing with the issues of logistics in the present.

Ultimately, I think that body cameras do more good than harm. While their implementation can be structured to appease certain interests over others, I think that most parties -- criminal defendants, prosecutors, police, and plaintiffs in excessive force cases -- benefit from body cameras no matter what specific policies of public access or review are in place.

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