Sunday Commentary II: Body Worn Cameras Shouldn’t Provide Alibis to Dishonest Cops

Bland-Sandra-Video
Share:
Bland-Sandra-Video
Grainy images from the dashcam video of Sandra Bland’s arrest last summer

When Texas State Trooper Brian Encinia arrested Sandra Bland last summer in Texas, he claimed Ms. Bland was “combative and uncooperative” after he pulled her over and ordered her out of her car. As the special prosecutor pointed out this week, “the grand jury found that statement to be false.”

Instead, the video shows that the trooper escalated the confrontation with Ms. Bland after she refused his request to put out a cigarette. At one point, Trooper Encinia says he will forcibly remove Ms. Bland from her car and threatens her with a Taser, saying, “I will light you up.”

Police originally claimed that Ms. Bland assaulted the officer who pulled her over. But video footage of the arrest, followed by her death, quickly called that into question.

While Mr. Encinia will be duly slapped on the back of the wrist with misdemeanor charges, this incident once again reminds us that police officers – not all of them, not even most of them – can be dishonest in the face of critical incidents where they made tremendous errors in judgment and at times committed blatant misconduct.

If the series of high profile and nationally publicized police incidents have led to one change, it has been the call and proliferation of body-worn cameras, which will serve two key purposes. First, they will protect the public, as police officers who commit misconduct can be more easily identified and appropriately dealt with. Second, they will protect the officers from charges of misconduct in cases where the use of force turns out to be justified.

However, I remain concerned. Like many communities, the city of Davis is getting closer to enacting a police body-worn camera policy. My concern is that officers will be allowed to view the video prior to writing their police report. That means that, in a critical incident, an officer may have the ability to tailor the report to the video, perhaps creating an alibi.

This is a key point of controversy and the case law across the country and the state is perhaps going to have to settle the matter.

Now, Police Chief Darren Pytel has explained his rationale for creating the policy in this way. And it makes sense – at least in part. We know from studies on memory that memory is much more fragile, faulty and malleable than we would like to believe. In a critical incident, officers may focus on some aspects of what they saw and not have noticed other aspects.

The idea expressed by Chief Pytel is correct – officers will give a better account if they view the report first and write it second. In fact, I think most of the time, they can and should do that. After all, a report that is at variance with the video, through honest mistakes, will be easily impeachable in a court of law. That is a legitimate concern for officers.

In most cases, I don’t have a problem if the officers watch the video and then write their report. However, there are critical incidents – anything that will need review, like use of force and complaints about misconduct – that need a different policy and standard for review.

If the officers themselves become the subject of the investigation, it is inappropriate that they watch the video prior to making their report. We don’t allow people accused of crimes to have that luxury, and police should not either.

The Sandra Bland case is not the only one this year where initial statements by officers were directly contradicted by video evidence.

In the shooting death of Walter Scott, the police quickly released a statement alleging that Mr. Scott had attempted to gain control of a Taser from Officer Slager and that he was shot in a struggle over the weapon.

The police, relying on Officer Slager’s account, alleged that Mr. Scott had fought with the officer before deadly force was employed.  Mr. Slager claimed that Mr. Scott “gained control of the Taser and attempted to use it against the officer.” The officer then resorted to using his service weapon and shot and killed Mr. Scott.

Mr. Slager, through his attorney, said “he properly followed all procedures and policies before resorting to deadly force.”

“When confronted, Officer Slager reached for his Taser — as trained by the department — and then a struggle ensued,” Attorney David Aylor said. “The driver tried to overpower Officer Slager in an effort to take his Taser.”

Mr. Slager “felt threatened and reached for his department-issued firearm and fired his weapon,” his attorney added.

Then the video was sent to the New York Times and it showed a very different story. Mr. Scott, was unarmed and fleeing. He was shot in the back by the officer from at least 15 feet and, following the fatal shot, the video appears to show the officer planting an object next to a fallen Mr. Scott.

In Chicago, the more elaborate cover up not only showed that police lied, but apparently, in new allegations, threatened witnesses when Jason Van Dyke shot and killed Laquan McDonald in October 2014.

Mr. Van Dyke was charged with murder last month as the video from the police dashcam video doesn’t match the police department’s initial narrative of the shooting, where Pat Camden, a spokesman for the police officer’s union, said that the teen “had lunged at the officers with a knife, prompting one of them to open fire.” He described Mr. McDonald as having a “crazed” look when he approached officers with a knife. NBC Chicago said police described the incident as “a clear-cut case of self-defense.”

“The officers are responding to somebody with a knife in a crazed condition, who stabs out tires on a vehicle and tires on a squad car. You obviously aren’t going to sit down and have a cup of coffee with them,” Mr. Camden told CBS Chicago after the incident. “He is a very serious threat to the officers, and he leaves them no choice at that point but to defend themselves.”

But the dashcam shows a different story and now the audio showed that police were satisfied following the teen until a Taser arrived. Officer Van Dyke jumped out of his car and immediately opened fire in contrast to the way his fellow police officers handled the situation.

(CNN offers a blow-by-blow) analysis of the dashcam video vs. police accounts.

All three of these cases illustrate the importance of being able to weigh initial officer accounts against what the video records to have been occurring. The initial statement prevents the officer from being able to create an ad hoc justification for his actions that fit what the video shows.

As CNN points out in the McDonald murder, “Newly released documents in the Laquan McDonald shooting show how elaborately police appear to have fabricated their version of that moment and how officers stood by each other in verifying the details.”

Most of the time, police officers having access to the video makes sense, but, in critical incidents that need review by the department or by outside agencies, it seems inappropriate to allow police to view videos prior to making an initial statement.

—David M. Greenwald reporting

Share:

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

Related posts

8 thoughts on “Sunday Commentary II: Body Worn Cameras Shouldn’t Provide Alibis to Dishonest Cops”

  1. Tia Will

    We know from studies on memory that memory is much more fragile, faulty and malleable than we would like to believe. In a critical incident, officers may focus on some aspects of what they saw and not have noticed other aspects.”

    I have a great deal of respect for Chief Pytel. I have stated on a number of occasions that I felt that he was an excellent choice for Chief. On this issue we differ and my differences go further than do those of David. I do not agree that the police should ever be allowed to see the footage prior to writing their report. I have several reasons for this point of view.

    1. It is not something that we ever allow for the accused civilian, thus creating two differing systems of justice, one for police and a different system for civilians.

    2. According to a conversation with now Chief Pytel in person, he discussed with me the situations in which police are permitted, and in some cases actually encouraged to lie to a suspect in order to obtain information. While Chief Pytel believes that officers will only use this “permission to lie” in extremely limited circumstances, I do not believe that this is true. I believe that it is far to easy to use this permission in ever broadening circumstances including to justify one’s actions.

    3. While it is absolutely true that memory is fragile, faulty, and malleable supplementing it with pre view of the tapes is a two edged sword. The honest officer will use it to correct his recollection. The dishonest officer will use it too taper his recollection to fit what is demonstrated on the tape to her best advantage. Of course officers focus on some aspects of a situation and not others. This is true in all situations not just “critical ones” and is equally true for all participants in an interaction. The value of having the memory report first, and then the tape report as independent pieces of evidence is what allows us to see what the officer states he was thinking in juxtaposition to what is seen on the tape.

    4. What I would recommend is a further modification of the process. I would recommend using the surgical model that many are now using. I recommend the officer writing his report without viewing the tape. She would then have a choice of whether to view the tape and make an amended report or not. For simple, straightforward cases with no adverse outcome, officers would probably choose to skip this step. If they did then choose to correct errors in their first statement, these would be noted and time stamped and then kept along with the initial report. This would provide for accuracy of fact while preventing fabrication of motivation to suit the actions.

     

    1. Davis Progressive

      it seems like there is a compromise here.  The police/ prosecutors have a legitimate concern that natural differences between a recollection and what is on the video will make it easier to impeach the officers on the stand.  Most of the time, police officers are not going to need to be investigated for their conduct, as we have seen in a lot of these cases where there was dash cam, even when that video was available, they didn’t look at it, so it might be a moot point anyway.

    2. tribeUSA

      Tia–Perhaps your point 1 is inaccurate–suspects when arrested are given their Miranda rights, and are not obligated to say a word to the police prior to obtaining legal counsel. The defense lawyers will have full opportunity to review the tape, and tailor their story to be consistent with what is shown on the tape. Therefor if the officer is not also given the opportunity to review the tape prior to submitting an official report; the officer/prosecution will in fact be at a disadvantage here, relative to the suspect/defense.

       

      Points 3 and 4 are good ones. For equity, perhaps the defense should be required to give some account of the suspects actions to the court (prior to trial), prior to having access to viewing the tape. I personally think it would usually be much more interesting to compare the suspects statement (prior to tape-viewing) to the videotape, than the same for the policeman/men.

       

      Surgery is much less ambiguous than criminal proceedings–the liver or gall bladder you operate on typically won’t lie to you (though it may mislead)!

      1. Tia Will

        tribeUSA and DP

        Thanks for the thoughtful comments.

        With regard to the questions Miranda rights and of equity, I can definitely see your points of view. However, I feel that a few factors are already so far slanted towards the police and/or prosecution as to shift the equity “playing field ” substantially.

        1. The police have a strong working knowledge of police work and the relevant law. Unless we are only speaking of hardened criminals or lawyers who are being detained, most people such as Sandra Bland will not have this same degree of understanding.

        2. I agree that people have access to counsel. However, people do not have access to the same quality of counsel and most often will not know their counsel personally and thus do not know whether what they are receiving is sound advice or not. The second layer here is that the police officer viewing the tape will almost certainly be acting in what she perceives as her own best interest. The lawyer may or may not be disinterested, biased against the defendant, fatigued, lacking in knowledge…..

        3. As for the surgery analogy, it brought a smile to my face and for that I thank you. But the ambiguity is much higher than you might think. While it is true that the liver will not lie, that does not mean that the assistant surgeon, or scrub tech, or anesthesiologist will not. The tape may not tell the whole story….but it will not lie.

  2. Frankly

    There is something really, really broken in this liberal social justice crusader view tendency toward suspects, criminals and law enforcement.  This tendency is troubling to say the least.

    Go back and read all the VG articles and posts from the standard anti-cop characters challenging suspect admission of guilt and also challenging witness testimony of suspect guilt.  The arguments have been focused on the unreliability of memory for events that occurred.  The point being made is that there are unfair and invalid convictions due to the faulty memory of suspects and witnesses.

    And now the argument is that cops should not be given the same consideration.

    All suspects are victims and all cops are liars.  I get it.

    This is just one of many, many pieces of evidence that there is another social problem we face in this country, in this state and in this city… it is the vocal population of people having a strong anti-cop bias.  Frankly, (because I am), those people should never, never be in any position to influence police protocol.  Instead, I think they should pursue some counseling to try and figure out where their anger and distrust of cops derives from.

  3. Tia Will

    Frankly

    All suspects are victims and all cops are liars.  I get it.”

    No Frankly, you don’t get it. You have taken the true statement that police are human beings subject to the same pressures, fears and temptations as all human beings including that to lie to avoid self harm or punishment, and twisted it into the statement above. When you make these “all or none” statements you are putting words in others mouths….or perhaps just being deliberately provocative as you yourself recently stated is sometimes the case

    So some straightforward questions to see if you do get it.

    1. Do you believe that no cops ever lie ?

    2. Do you believe that no cop ever uses excessive force ?

    3. Do you believe that all cops always make thoughtful assessments of a situation ( in accordance with the urgency of their need to make a decision) prior to acting ?

    If a  cop lies in a situation of perjury such as in the Sandra Bland case, he has acted criminally. I would think that those who hold a strict “law and order”perspective would agree that this is  not desirable behavior ( being criminal) and should be detected and dealt with appropriately under the law exactly as in any other case of perjury.

    1. Davis Progressive

      i think frankly believes that cops lie and use excessive force but less often than other professions and therefore there is not a problem here that we have to solve and this is all political.

  4. Miwok

    Comic moment: I just watched a video of an arrest on the Justice Network, and a Lady, pulled over for driving under the influence, was asked to put out her cigarette, step out of the car, did none of those while berating the officer. She was tased, arrested, and taken to jail. No death. hmmm.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for