While we need to be clear – the proposed Davis Police Department’s body worn camera policy, as presented earlier this week by Assistant Chief Darren Pytel, is a good start and a much needed practice – I want to draw on several concerns that I have with the policy at the outset in hopes that they can be corrected, as the city attorney and eventually city council review and revise the proposed policy.
While the presentation by Darren Pytel focused heavily on transparency versus privacy, an important issue to be sure, there are far larger issues regarding access and release of the videos that are dominating national discussions.
This week, people were stunned when they viewed the dash-cam video showing three Gardena Police Department officers shooting and killing Ricardo Diaz-Zeferino on June 2, 2013. It was held under court seal until the judge ordered the video to be released.
It took a lawsuit from three large media organizations – the LA Times, AP, and Bloomberg – to get the video released more than two years after the death of Mr. Diaz-Zeferino. U.S. District Court Judge Stephen V. Wilson sided with them, writing “the fact that they spent the city’s money, presumably derived from taxes, only strengthens the public’s interest in seeing the videos.”
The case from Gardena raises a critical question as to whether the body worn cameras that will begin proliferating in departments in response to recent calls of transparency will result in the kind of public access that some feel is needed.
To be sure this is a debate, and with emerging technology and practices this debate figures to intensify.
“Looking at this video, you really want a police agency to be really transparent,” said Tod Burke, professor of criminal justice at Radford University and a former Maryland police officer, to the Christian Science Monitor in a recent article on the issue. “But there are privacy issues there.”
However, it was the Senior Staff Attorney for the Southern California ACLU that captures my belief: “Body cameras don’t provide any transparency if the videos remain secret, as was the case [in Gardena].”
My concern with the Davis Police policy is that is exactly what we will have – situations where something controversial occurred, and the Davis Police Department will refuse to release video, citing exemptions under the Public Records Act.
The California Public Record Act (CPRA) is notoriously weak on transparency and it is no more weak than on police records, which allow for a myriad of exemptions to avoid the release of records. An example as to just how limiting these regulations can be can be seen in a city response to a Vanguard records request.
James Martinez back in February told the Human Relations commission, “I was the victim of a malicious intentional act by a public safety officer belonging to the city of Davis.” He said the officer “caused my accident and left me on the ground without providing any type of emergency response.”
Mr. Martinez met with the Vanguard and provided a copy of a letter dated March 17, 2014, and signed by Assistant Chief Darren Pytel. The letter 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.”
The Vanguard filed for a public records request of the video. It is important to understand that Mr. Martinez at this point already had a sustained complaint and had a lawsuit dismissed with prejudice from the local court.
And yet, the department could legally withhold the video from the public.
The city responded, “Responsive to your request, the Davis Police Department has a video recording (in-car camera video) responsive to your request. However, 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.”
They cited case law that argues, “The investigation exemption does not terminate when the investigation terminates.”
This response leads me to believe that if the city of Davis uses this standard for body worn cameras, the public will never have access to videos of this nature.
This leads to two other concerns. First, the department has the ability, using this standard, to release information that is beneficial to them – i.e. if a case like that of Halema Buzayan comes forward again and the public is outraged, they can use the video selectively to help their public relations cause, but nothing will compel them to come forward when it shows officers acting in a poor light.
The second point is that the Public Records Act is really the floor for public transparency. The department has the ability to release information that they would not be mandated to release under the Public Records Act. They would have to gain some approval from the Davis Police Officers’ Association to do some of that, but there is nothing in the law that requires the standard be the CPRA floor.
In addition to the issue of transparency there is another major issue and that is the debate over whether officers should be able to view the video prior to writing their report. This is yet another big area of concern because – as organizations like the ACLU fear – officers can watch the video before writing their report and therefore tailor their report to the video rather than independently explaining what happened.
It is the position of the ACLU that the officer’s initial statement should be made prior to their viewing the video to “get their natural perception of the incident in question if there’s evidence of a crime.”
Darren Pytel said that, while they developed the policy with the ACLU guidelines in mind, in most cases the officers will write their reports first because they don’t want to go back and watch the video, but “the officer will have the ability to watch the video prior to their report.”
While that may be true in general that police officers do not have the time or inclination to watch videos prior to writing their report, in a case they figure will be scrutinized – use of force, officer involved shooting, Tasering, other cases that figure to be controversial – the officer probably will watch the video in advance.
For a full policy analysis on this question: see the ACLU’s January piece, “Should Officers Be Permitted to View Body Camera Footage Before Writing Their Reports?”
As they argue, “If an officer is inclined to lie or distort the truth to justify a shooting, showing an officer the video evidence before taking his or her statement allows the officer to lie more effectively, and in ways that the video evidence won’t contradict.”
Moreover, it is a poor investigative practice. Police departments do not allow suspects to see the video evidence. “We don’t want the witnesses’ testimony to be tainted,” LAPD Commander Andrew Smith said. Detectives want to obtain “clean interviews” from people, rather than a repetition of what they may have seen in media reports about [the subject’s] death, he added. “They could use information from the autopsy to give credibility to their story,” Commander Smith said.
And here again we have an asymmetry. The officer would be able to view the video prior to their report, but a complainant or the accused would not.
These two issues are critical and the city needs to get them correct. We need to decide when and under what conditions video should be released and we need to set the policy very clearly on when an officer should be able to view the video.
Without these two provisions correctly in place, I cannot support the city’s police body worn camera policies.
—David M. Greenwald reporting