January 2018 Warning Bells article

January 2018 – Restricting access to private activity on Department video

Two things are happening that makes the knowledge of how to seal portions of body worn video (BWV) more important. The first is that the Department is going to be releasing the video to the public, and the second is that the buffer has been increased to two minutes. Yes, your private conversation, or bathroom activity, could end up on YouTube.

As I write this, the final video release policy has not been implemented, but the Police Commission is going to do it and calls it a management right, not subject to Meet and Confer. Even if the League is ultimately successful in forcing a Meet and Confer, there is little doubt that BWV and digital in-car video (DICVS) will be released no matter what our efforts or opinion. The policy has not been implemented yet, so the final details are yet to come and will be the topic of future Warning Bells articles.

The two-minute buffer, however, is in place. There has always been a buffer, it is now just longer. Your BWV and DICVS are always recording in two-minute video loops. When you hit the record button, the two-minute video loop previous to the button press is saved (video only, no audio). It is possible now to be in the bathroom, hear a help call, run outside to respond, hit your BWV record button and save to video what you have been doing the previous two minutes. It might not be pretty.

What is critical, and has always been critical, but is now even more critical, is that you review your videos. Remember that criminal defense attorneys will always get your entire video in discovery when a suspect is charged with a crime, as will the plaintiff’s attorneys who might later file a lawsuit. Video release policy is irrelevant in criminal prosecutions and civil trials. Now, portions of BWV and DICVS recordings will be placed on the Department website. No need for discovery. Millions will now be able to parse your conduct at their leisure.

Witness what happened recently on CBS LA when reporter David Goldstein and a criminal defense attorney got together and implicated officers in planting evidence. The attorney was given 12 videos in discovery from various body worn videos made by officers during an arrest. By selecting certain portions of the video, it was implied and made to appear (on TV) that the officers may have planted drugs on the suspect. The case was helped along by reports and preliminary hearing testimony that appeared to be inconsistent with the videos. The inconsistencies played into the defense attorney’s assertions that the officers were framing his client. He set up the ambush in court, and the reporter pounced on the officer as he left court, peppering him with questions. The officers maintain that they did nothing illegal. They may have made mistakes in their reports and testimony, but mistakes are never mistakes to criminal defense attorneys or plaintiff’s attorneys. They are portrayed as lies to the jury, often effectively.

With BWV and DICVS video about to be posted on the internet by the Department, there will be a free-for all in finding things that officers have done wrong more often than noticing all the things an officer has done right. We will try to build in as many protections for you as we can, but as of this writing, the Department isn’t even recognizing that this is a Meet and Confer.

However, we were able to negotiate some protections into the BWV policy before it was deployed, one of which is the ability to restrict access to private actions on the video. The policy is in a Notice issued on August 28, 2015. When there is an “unintentional and inadvertent BWV or DICVS recording that captures sensitive, personal information for which access should be restricted,” an officer can follow a procedure, which causes that portion of the video to be protected so it cannot be seen. We knew during negotiations that there would be times when an officer would forget to turn a BWV or DICVS off, or when the buffer would pick up something unintentional that could be embarrassing.

As the DICVS Special Order states, “The Digital In Car Video System is being deployed in order to provide Department employees with a tool for crime documentation and prosecution, and not to monitor private conversations between Department employees.” [Emphasis added] So when you and your partner are having a frank discussion on the merits of your commanding officer and, unknown to you, the BWV was running, there is a remedy.

You start the process by making a written request to your commanding officer to restrict access to a portion of the video. What? You were discussing him or her in frank terms on the video; now what? The good news is that, according to the notice, the commanding officer is to not view the video. The commanding officer is directed to request the Information Technology Bureau (ITB) to review the video. ITB will restrict the personal part of the video if they deem it to be non-evidentiary and personal. It will then be encoded so that it cannot be viewed without the proper permission.

Nothing is ever completely protected, however. Checks and balances. The commanding officer of ITB may allow an investigator or auditor to view a restricted sensitive personal recording if the request has been approved by a police commander or civilian equivalent and it is necessary in order to conduct an authorized administrative investigation, criminal investigation or a Department inspection or audit. However, prior to anyone looking at the video, you must be notified. You, then, must immediately notify the CO of ITB that you object (if you do), and you must submit a 15.7 within seven days with your reasons. The final decision whether to allow it to be reviewed or not will be up to the director, OCPP. You will be notified of the decision within 48 hours. There is always an exception. If notifying you would compromise an investigation, a Deputy Chief can approve viewing without notifying you.

The bottom line is that now with the possibility that your BWV or DICVS recordings may be featured on YouTube, Facebook and other places on the internet, you might want to make sure that your privacy doesn’t get 10,000 hits by those who will edit videos for their own purposes after they download and distribute them from the Department’s site. Hanging BWV/DICVS recordings on the internet for all to see is a bad idea, but the god of transparency, apparently, must be satisfied.

The postings will mostly be about uses of force. In that the Department administratively disapproves a large percentage of categorical uses of force, in many cases you may be subject to public rebuke. Sort of like the 21st century way of sewing a scarlet letter on your electronic clothing. The Police Commission publishes its decisions on each categorical use of force on the internet. Although the decision uses the term “Officer A, B, C, etc. in the decision language, the date of the use of force and suspect’s name are in the report. A simple date check with news stories on Google will reveal the officer’s name because the Department releases the officer’s name when the use of force occurs. It doesn’t take much nowadays to find a person’s address on the internet. And now, along with the officer’s address, a photo of the officer is also provided.

Even the most justified use of force is ugly and will probably repulse the average citizen, so there is little reason to expect that transparency will result in a rise in our popularity. Commissioner Johnson began his term on the Police Commission vowing that he wanted to reduce uses of force. He might well succeed. But not for the right reasons. In addition to deciding whether the suspect’s actions justify a use of force response, an officer must now consider the fact that he or she will be benched for 14 days (whether justified or not) without public contact, overtime or the ability to perform off-duty work, like MTA; likely Administratively Disapproved; and have the use of force made public for the officer’s children, family, friends and neighbors to see.

At some point, we are asking too much of our officers. Be legally careful out there.

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