Body cameras: A legal checklist for cops, agencies, and the lawyers who represent them
As more cops are donning cameras, thorny legal issues are pushing from behind the recorded scenes
This feature is part of our 2016 Guide to Body-Worn Cameras, a supplement that brings a sharpened focus to some of the most challenging issues related to the use of body-worn cameras and digital video evidence. To read all of the articles included in the guide, click here.
Interest in body cameras has catapulted with recent, highly publicized officer-involved shootings, nation-wide protests, and a White House Task Force Report. About one-third of the nation’s police agencies are using body cameras.
In the spring of 2015, the Justice Department announced a $20 million grant program for police body-worn cameras. That’s just part of an ambitious $263 million program to equip 50,000 officers with the technology. As law enforcement resources rush to provide tips for acquiring the grant money, departments are scrambling to cash in.
However, in the rush to get some of that grant funding, some agencies may be moving so quickly that they aren’t giving adequate attention to the legal issues that accompany the technology. Here’s a checklist that police, their attorneys, and prosecutors should go through before the next lawsuit (possibly by officers against their department) or criminal appeal.
Not everyone has jumped on the body camera bandwagon. Some unions, officers and brass have legitimate questions about requiring officers to wear cameras.
Police unions in several cities claim the cameras are a change in working conditions that must be negotiated. Implementing a body camera system is arguably a management prerogative, but it will impact working conditions. Management is well-advised to negotiate the foreseeable impacts.
In a PoliceOne survey, officers said they favor the cameras, but some have expressed concerns that supervisors could use the video for fishing expeditions. Continuous recording might infringe on officers’ privacy or in a manner contrary to good public policy.
• Officers in a patrol car or at the station getting to know each other; letting off steam about work or personal life; going to the bathroom
• Union activism or whistleblower communications
Technology isn’t currently able to take the above into account, so even the ACLU acknowledges officers will need to have some OFF/ON discretion. This needs to be specifically spelled out in policies with consequences for non-compliance. That implicates disciplinary actions and their attendant officer rights.
The need to address the labor implications of non-compliance with body camera policies exists. The ACLU says research shows compliance rates with body camera policies are as low as 30 percent. They didn’t provide the research. But the Phoenix PD’s grant-funded body camera project reported a 50 percent compliance rate.
Other issues include whether officers should be permitted to review video before writing reports or answering IA questions. Proponents argue this would strengthen reliability and avoid a “gotcha” atmosphere. Opponents say we need statements uninfluenced by “do over” reviews. Should video be used to check on officers’ work performance or workmen’s compensation claims?
Public Records and FOIA Requests
According to the Reporters Committee for Freedom of the Press, “many police departments are adopting bodycams before creating policies or procedures for compliance with open records laws.”
The Federal Freedom of Information Act (FOIA) broadly exempts from disclosure “records or information compiled for law enforcement purposes” if their production:
A. Could reasonably be expected to interfere with enforcement proceedings
B. Would deprive a person of a right to a fair trial or an impartial adjudication
C. Could reasonably be expected to constitute an unwarranted invasion of privacy
D. Could reasonably be expected to disclose the identity of a confidential source which furnished information on a confidential basis
E. Would disclose techniques for law enforcement investigations or prosecutions that could reasonably be expected to risk circumvention of the law
F. Could reasonably be expected to endanger the life or physical safety of anyone
An agency must demonstrate that disclosure “would” cause the harm in only B and E — Congress lessened the standard to “could” in the other subsections.
State and local public records and FOIA requests vary. Thank the Reporters Committee for Freedom of the Press for an interactive, online map charting the body camera policies of more than 100 police departments and laws in nearly every state regarding public access to police body camera videos.
The resources needed to address not just production but storage, retention, review, retrieval, and redaction under public records laws can be huge. Take a department with 25 officers running body cameras 32 out of every 40 hours, 46 weeks a year. That’s 36,800 hours of video potentially subject to public records disclosure requests. There’s also the discovery obligations owed to criminal defendants. Do we really want to be addressing these legal requirements after the cameras are rolling?
One solution may be to modify the public records and FOIA legislation that was enacted without body cameras in mind — before saddling officers and agencies with the devices.
Federal Privacy Legislation
18 USC § 2511, the federal Wiretap Act, making it illegal to intercept, disclose, or use the contents of any wire, oral, or electronic communication through the use of a “device”, is a one-party consent law. It’s not illegal if one party to the conversation consents to the interception. Presumably, the officer is consenting to the body camera recording and the persons being recorded know they’re talking to a police officer.
The act also defines “oral communication” as “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” We’re not talking about undercover work here. It’s hard to imagine a court ruling a person has a justifiable expectation of their conversation with a police officer in a public place not being intercepted by the officer (or any number of citizens’ cellphones.) Policies will need to address police wearing the cameras into private areas, especially homes.
State Privacy Legislation
Each state varies in their statutes regarding the recording of conversations. Some states have two-party consent rules. For example, Alaska has one-party consent but Alaska’s state Supreme Court ruled that under the state constitution’s greater privacy protection against government intrusion, law enforcement must get a warrant to surreptitiously record conversations even if an informant participating in the conversation consents to the recording.
Washington’s state privacy law protects only “private” conversations and police need not determine if the conversation is private if they advise they are recording.
The lesson is to determine your state’s privacy, eavesdropping and electronic monitoring statutes and case law about police use of such techniques before using body cameras. The Reporter’s Committee for Freedom of the Press provides a handy state-by-state guide to recording in-person conversations.
Fourth Amendment Privacy Against Government Intrusion
Those most vocal for monitoring police misconduct are equally vehement that citizen privacy be protected. Much more than dash cams, body cameras will capture people at their worst: under the influence, abusive, profane, devastated. They will be at their most personal moments — in domestic disturbances, as victims of sexual assault or child sexual abuse, in mental health crises and medical emergencies. Body cams may also go into places where people have a reasonable expectation of privacy — like homes.
In Lopez v. U.S. (1963), the U.S. Supreme Court extended the “plain view” doctrine to recording, holding that officers may generally record what they can lawfully see or hear without violating the Fourth Amendment.
While the 2012 Supreme Court opinion of U.S. v. Jones prohibited law enforcement from using a GPS tracker to collect evidence they could lawfully see with surveillance, the ruling was based on the physical intrusion of placing the tracker on the suspect’s car, which was deemed unlawful absent a warrant.
There are certain issues that have not been resolved by these cases:
• What if the camera captures something the officer did not see or hear? Would this be more akin to thermal imaging from a public vantage point which the Supreme Court held in Kyllo v. U.S. (2001) required a warrant?
• What if something is seen or heard only by reviewing the tape, repeatedly, or in slow motion, or stop frame, or digitally enhancing it? Are these actions a separate search requiring a warrant?
• Speaking of additional searches — what about interfacing body camera footage with facial recognition? Police in the United Kingdom, Dubai, and Canada already wear cameras that can recognize faces to identify suspects and missing persons. Apps for Google Glass allow wearers to automatically connect faces to photos
• Facial recognition interfaced with body camera video could almost immediately give police cause to stop anyone with an unpaid traffic ticket or court fees, behind on their child support, or any other myriad of small infractions. The legal question is whether the facial recognition is a separate search requiring separate justification
• Lopez and Jones addressed the rights of criminal defendants. What about people who end up not being charged with any crime? What about victims of sensitive crimes like sexual assault or child sexual abuse? What about witnesses or citizens who may fear retaliation if they cooperate with police? We can’t have crime victims or witnesses afraid to call for help or cooperate for fear they will end up the subject of a YouTube video or a reality TV producers’ FOIA request
Equal Protection, Disparate Impact, and Selective Enforcement
The Fourteenth Amendment’s guarantee of equal protection has been used to attack law enforcement that has a disparate impact upon a class of citizens as well as selective enforcement of laws. It has formed the basis of successful challenges by the homeless to loitering and vagrancy laws and their enforcement.
When do body cameras worn to protect citizens from police misconduct and police from false or frivolous accusations turn into disparate surveillance?
With total 36,023 officers, New York City has 118 officers for every square mile according to the most recent Census of State and Local Law Enforcement Agencies. That many body cameras on the street — concentrated in poor, minority, high-crime neighborhoods — pose a very different impact than body cameras worn by officers in a rural area with a small police department.
Remember the DOJ’s report on how the Ferguson police selectively enforced warrants to strong arm revenue out of its poorest, largely minority, residents? It also found that city officials pressured the department to do just that and the courts were complicit. Residents described police aggressively pursuing them for offenses as minor as using the wrong trash collection service or rolling through a stop sign. What would happen to community-police relations if, through body cameras interfaced with facial recognition, officers could identify such people with a glance?
And what will happen when municipalities scramble to pay for the less obvious costs of body cameras — training, developing and implementing policies and procedures, storage, retention, review, redaction, and reproduction? Some jurisdictions have decided to help fund the costs through fines. New Jersey legislation levies a $25 surcharge on convicted drunken drivers that stays in the municipality and can go toward purchasing cameras or data storage and other body camera expenses.
Most would have no gripes about surcharging an equal opportunity crime like drunk driving, but care must be taken to avoid selective enforcement to pay body cameras. And consideration must be given to their potential disparate impact. Even if we win the lawsuit because plaintiffs can’t prove discriminatory intent, we lose the police-community trust battle. Let’s think before we start the cameras rolling.
Video as Evidence
Body camera video isn’t just a report. It can become evidence in court. Proper chain of custody must be maintained. There must be technical controls to protect against tampering, destruction, unauthorized access. If a third-party cloud service is used for storage, encryption may need to be “end-to-end.” (This is a system where the only people who can view the information are the people communicating. No one else can access the cryptographic keys needed to decrypt the information—not even a company that runs the messaging service.)
To authenticate the video, the date, time and location of recording will have to be documented. A witness will have to verify the contents and relevant identities of those recorded and provide assurance it hasn’t been edited or over-dubbed.
Prosecutors and attorneys representing officers/agencies in civil lawsuits may need expert witnesses who can explain the operational aspects of the camera regarding circumstances like those above.
If video footage becomes trial evidence, it will need to be retained as long as other evidence subject to an appeal and a possible retrial.
The availability of body camera evidence may also entail legal duties. Proposals are already underway for:
• Rebuttable evidentiary presumptions in favor of criminal defendants who claim exculpatory evidence was not captured or was destroyed when an officer failed to record or interfered with the recording
• Similar presumptions for civil plaintiffs suing the government, a police department or officers for damages based on police misconduct
There is related precedent for excluding evidence that could have been captured on a body camera. In the case of custodial interviews, some states have gone beyond a rebuttable presumption and determined that such evidence is inadmissible if not recorded, absent a specified exception.
Finally, it is the police’s and prosecution’s duties under the Supreme Court cases of Giglio and Brady to turn over evidence to the defense that might be used to impeach the credibility of a prosecution witness, including police officers. This includes body camera evidence.
The Brady and Giglio obligations are not limited to the officer’s conduct in that particular case but could extend to any misconduct relevant to a defense or the officer’s credibility. Civil litigants may be entitled to even more, under civil rules of procedure.
Unless these legal issues are addressed before the cameras start rolling, the panacea may turn into a Pandora’s Box.