In late 2013, a man was biking home on Alvarado Ave. in Davis. Unbeknownst to him, the police were responding to a call about a potential suicidal man. The officer, according to a letter to the man, “turned on his overhead spotlights to illuminate the street and sidewalk so that he could see whether the person was walking in the area.”
The man would crash his bike. He alleged that the officer caused him to crash his bike, which caused a back injury, eventually requiring surgery. But, just as important, the officer was not professional in his interactions – he did not get out of his car or make sure that the man was not injured.
The letter, dated March 17, 2014, and signed by Assistant Chief Darren Pytel, claims that the officer “did not intentionally turn on his spotlight and direct it towards” the man. However, it acknowledges, “That being said, when you did crash, the officer should have gotten out of his car and engaged in a more courteous/polite conversation with you to determine whether you were injured or not.”
Part of this incident was recorded on his in-car camera and, Assistant Chief Pytel acknowledges, “it is clear the tone and manner in which he communicated with you was short and abrupt. Therefore, your allegation that the officer did not engage in professional conduct is Sustained, meaning we do find the officer violated a Department Rule and Regulation. Further, the officer should have provided his name to you when you requested it. Therefore, that allegation was Sustained as well.”
The man believes that the spotlight from the police car caused the crash. He asked the Vanguard to investigate, however, the city’s response is that “the video you requested is exempt from disclosure under the Public Records Act as an investigation record and under the statutory exemption for confidential peace officer personnel records.”
Moreover, “The investigation exemption does not terminate when the investigation terminates.” Further, “As part of an internal investigation, the video is considered confidential police personnel records that may only be disclosed pursuant to a so-called ‘Pitchess motion.'”
The Vanguard went through this exercise knowing full well the outcome, to illustrate the point that the availability of video is not enough in some circumstances.
Nationally, the death of Walter Scott following the unrecorded death of Michael Brown and the recorded death of Eric Garner have focused the nation on the need for police body cameras. In the case of Mr. Scott, access to the video shot, not by a body camera, but by a civilian who would send the video to the NY Times, forced the police agency to fire the officer and charge him with murder.
The video showed that the officer not only shot and killed Mr. Scott as he fled, but that the officer had lied and attempted to frame the crime scene to avoid responsibility. Without the video, he likely would have gotten away with it.
On Thursday, the New York Daily News reported a finding from the New York’s Civilian Complaint Review Board, which found that “cop watchers armed with smartphones are not only catching police misconduct — they’re catching cops lying about the misconduct.”
According to them, “More and more cops are giving false statements in official documents or when questioned about their misbehavior.” In fact, “The NYPD watchdog group determined that 26 cops made false statements either to the CCRB or in their paperwork last year” and these statements “were debunked by video evidence collected at the scene of the incident.”
Are body cameras the answer to this problem? The ACLU, NAACP, and other civil liberties groups on Friday released a set of guidelines for the use of body cameras.
The release from the civil liberties groups argues that “body worn cameras are not a substitute for broader policing reforms and, when deployed without appropriate safeguards, can even compound problems of over-surveillance and biased policing.”
They write, “To ensure mobile cameras are used to help eradicate discriminatory policing and protect civil rights, the groups are calling for camera policies to be developed publicly and to make sure that certain footage is made available to the public and the press. The groups also say that police departments must commit to a set of well-defined purposes for camera use, and need to specify clear operational policies for recording, retention, and access.”
“These guidelines can help ensure that cameras are tools for accountability—not instruments of injustice,” said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. “Without fair and transparent standards for the use of body worn cameras, police departments risk exacerbating the problems they are seeking to fix.”
To help ensure that police-operated cameras are used to enhance civil rights, departments must:
- Develop camera policies in public with the input of civil rights advocates and the local community. Current policies must always be publicly available, and any policy changes must also be made in consultation with the community.
- Commit to a set of narrow and well-defined purposes for which cameras and their footage may be used. In particular, facial recognition and other biometric technologies must be carefully limited: if they are used together with body cameras, officers will have far greater visibility into heavily policed communities—where cameras will be abundant—than into other communities where cameras will be rare. Such technologies could amplify existing disparities in law enforcement practices across communities.
- Specify clear operational policies for recording, retention, and access, and enforce strict disciplinary protocols for policy violations. While some types of law enforcement interactions (e.g., when attending to victims of domestic violence) may happen off-camera, the vast majority of interactions with the public—including all that involve the use of force—should be captured on video. Departments must also adopt systems to monitor and audit access to recorded footage, and secure footage against unauthorized access and tampering.
- Make footage available to promote accountability with appropriate privacy safeguards in place. At a minimum: (1) footage that captures police use of force should be made available to the public and press upon request, and (2) upon request, footage should be made available in a timely manner to any filmed subject seeking to file a complaint, to criminal defendants, and to the next-of-kin of anyone whose death is related to the events captured on video. Departments must consider individual privacy concerns before making footage available to broad audiences.
- Preserve the independent evidentiary value of officer reports by prohibiting officers from viewing footage before filing their reports. Footage of an event presents a partial—and sometimes misleading—perspective of how events unfolded. Pre-report viewing could cause an officer to conform the report to what the video appears to show, rather than what the officer actually saw.
From our perspective there are two key calls. First, that police officers be prohibited from viewing body camera footage before filing their reports.
Secondly, that the footage needs to be in public domain rather than solely under police control.
“With everything that has gone on nationally in the last six months, which has been horrifying and astounding, there’s been a rush to put body cameras in the field,” said Chad Marlow, the advocacy and policy counsel at the ACLU. “Right now the policies behind body cameras are all over the place.”
While they were concerned about the use of facial recognition software, our bigger concern is the other two areas.
Allowing the police to view the video prior to their report allows them to fit their story to what they see in the report. In the case of Walter Scott, that would have been critical because the report filed by the officer in that case was a fabrication to avoid responsibility for an unlawful shooting. Had he seen the video, he would clearly have changed his story to reflect the facts that the video revealed.
The second problem is crucial. As the case from Davis illustrates, the police are now able to use the peace officers’ bill of rights to claim that this is a private personnel record. The same stringent regulations have reduced the effectiveness of civilian oversight in California.
As the Vanguard reported, San Francisco DA George Gascon recently called for the use of video in all arrest reports. However, that does not extend to all citizen complaints. Without the ability of the public and the media to view this video, the police remain in control of it and any police department that is less than thorough and transparent in its investigations can hide behind these laws.
Clearly, once again, until California changes the law with regard to how these videos are handled, police body cameras are not going to be a solution.
—David M. Greenwald reporting