Body Worn Videos and Privacy
The train is coming and nothing is going to derail it. LAPD has 7000 body cameras planned for the near future, and not to be outdone, President Obama has promised funding for another 50,000 body cameras nationwide. It’s a run-away train because few are thinking about all of the ramifications of thousands of officers videotaping hundreds of thousands of contacts with citizens. Simple questions like, where is all that data stored and who gets to look at the videos will require careful thought and planning.
A prominent police defense attorney recently told the story of what happened when he addressed an audience made up of mostly liberal citizens at a community meeting.
“How many of you want the officers to tape everything they do during their shift?” he asked the audience. Almost all the hands went up. There is a large segment of the citizens who do not trust anything officers say, he explained, they want to see the recording.
“Your 15-year-old daughter has been raped,” he asked. “How many of you want the tape running when the officer is asking her about the crime?” he asked. Many of the hands went down.
“Worse yet,” he continued, “The officer has discovered her in an alley, partially undressed, bleeding and nearly hysterical because of the beating and the rape. How many of you want the tape running now?” All the hands were down. No one had considered that situation. That is only one of the ramifications of a policy that has not been well thought out.
The ACLU is torn. They do not want officers to be able to choose when to turn a camera off and on thus “eliminating any possibility that an officer could evade the recording of abuses committed on duty,” as they say on their website. On the other hand, they do see a problem that there might be a “danger that the technology would be misused by police supervisors against whistleblowers or union activists — for example, by scrutinizing video records to find minor violations to use against an officer.” (Have they been reading my mail?)
The ACLU is concerned about the privacy of citizens when officers go into a home, or even when in public such as when a celebrity is arrested for DUI, or an ordinary citizen makes a fool of himself, or herself, and the incident is “immortalized online” when the video gets posted. ACLU remedies include informing citizens that they are being recorded, wearing “lapel camera in operation” pins, and asking citizens if they want the camera turned off before entering private homes.
As to punishing officers who do not turn on the camera or turn it off too early, the ACLU has a remedy for that too. They would like to see an addition to the exclusionary rule. Any evidence recovered when the camera is turned off would be excluded from use against the suspect. However, any misconduct alleged against the officer when the camera is turned off would result in an evidentiary presumption against the officer that the allegation was true.
The League, however, has a few concerns about the invasion of the officer’s privacy. We have had some discussions with the officers who have actually been using the Body Worn Video cameras. (BWV) There are a couple of mechanical aspects of the BWV that could potentially lead to big problems. The first is that sometimes when you hit the start button, it doesn’t start. The second is that if you don’t hold the button in long enough to turn it off, it doesn’t turn off. So, on the one hand, it is not running when you think it is and on the other hand, it is still running when you think it isn’t.
Another problem is that when it is running, the red recording light is not readily visible to other officers. The result is that when you think it’s on and it’s not, the Department will think you were trying to hide something. When you think it’s off, and it’s not, you will likely be recording something private and embarrassing. Mistakes will be inevitable.
That brings up the question of who gets to look at the video? Well, for one thing, it might be the public. Public record requests will undoubtedly be filed to get videos. They may or may not be successful. A couple of police departments in Washington have suspended body-camera use because of too many public record requests. They didn’t have the staff to handle them. And of course, defendants will get the video in discovery. And lastly, the Department will do audits.
So what happens to the video that you accidentally recorded in the bathroom when you thought you had turned it off? What about the video that was accidently shot by the probationer who forgot to turn the BWV off before he joined a group of officers who were winding down after a pursuit? There was a whole lot of joking on that video that could be taken wrong, not to mention some frank discussions about the competence of the captain and a couple of supervisors. Now what? Wait until some citizen with a public record request puts it on YouTube? Wait until a Department audit discovers it? It can’t be erased.
There are a lot of unintended consequences on board that runaway train. The League is going to try to build some protections into the policy for you. Hopefully, there will be some understanding of the problems by the Department and the Police Commission.
The BWV has the potential to be a good thing. It protects against false personnel complaints and provides evidence against criminals. But it can also be used by LAPD management to make patrol life miserable. Those who have been living with the negative South Bureau Digital In-Car Video experiences seriously doubt if management can rise to the challenge of allowing the BWV to be a tool for police work and not a whip for discipline.
Maybe captains and above should be required to wear them. Nothing like the rule makers being made to live under the rules they make to make the rules more reasonable.
Be legally careful out there.
