The combination of the city’s Surveillance Technology Ordinance, as well as recommendations from Interim Police Auditor Mike Gennaco, in the wake of the Picnic Day investigation pushed changes to the city’s three-year-old body-worn camera policy that led to an eventual rare 3-2 vote to move forward on new interim language.
The biggest problem facing council was the combination of timing with the creation of new policy and concerns about the proposed policy. Under provisions of the Surveillance Technology Ordinance, council had until September 25 to enact a new policy, re-authorize the existing policy, or vote to disallow the use of the technology.
In the case of body-worn cameras, Will Arnold summarized the view of the council, “We don’t want to get in the way of the use of these technologies.” At the same time, he and his colleagues had continued questions about the policies for using the technologies.
“We’re in this odd period of time,” he explained. “We have no permanent auditor, we have yet to form the Police Advisory Commission. We also are facing a time crunch and wonder logistically how we balance that.”
Ultimately, he made the decision to move the staff recommendation with the caveat that “interim” policy would be written in and the city staff would return with re-consideration in six months. That would give both the new auditor and the Davis Police Accountability Commission (DPAC), both approved in concept later that evening, a chance to evaluate the policy.
The body-worn camera policy was originally created in August 2015. At the time, the Vanguard had a number of concerns with the policy, particularly the fact that police could review the video prior to writing a report or giving a statement. And there was no realistic release policy for dealing with releasing the video to the public.
The Picnic Day incident, along with developments in other locales, has completely changed the thinking and the Interim Police Auditor recommended changes to those policies.
Among the key changes, “Once the BWC recorder is activated, officers are expected to continue recording until the incident has concluded, recording is no longer relevant, or there is no apparent value to continued recording.”
This was meant to address concerns that police officers were not recording critical incidents. “A BWC may not be turned off during a use-of-force incident until the event has fully stabilized and never while in the presence of any person threatened with or subjected to force.”
Officers will provide a “pure statement” prior “to reviewing body-worn camera following a critical incident.”
Finally, following Sacramento and Los Angeles police departments, the city has drafted a policy for releasing video evidence.
“It is the policy of the Davis Police Department that video evidence of critical incidents involving Davis police officers that is within the Department’s possession be released to the public within 45 days of the incident. Video may be released earlier if the Police Chief determines that earlier release is in the public interest,” Chief Pytel laid out.
He noted there are a number of incidents where they have to release the video much earlier than 45 days. Council amended the policy to allow for the city manager or the interim auditor to authorize such a release in consultation with the police.
Critical incidents drew some concerns – these include officer-involved shooting, use of force resulting in death or serious body injury, in-custody deaths, and “any other police encounter where the Police Chief and the City Manager determines release of video is in the public interest.”
There were a lot of concerns about the language in general, as expressed during public comment.
During public comment, for instance, Stephanie Parreira urged the council to “seriously revise this before it gets passed.
“There’s a loophole in this policy that (Chief) Pytel did not describe… that allows police officers to turn off their body cams to have private discussions that they don’t want the detainee to hear,” she said. “The critical incidents in this policy, need to seriously be expanded. Right now they only consist of incidents where someone dies or is seriously injured.”
She added, “For critical incidents in which someone dies or is critically injured, I don’t think that the police department should be able to determine whether there’s preliminary evidence of whether that was due to their actions – that allows the police to get away with murder because they get to judge whether they committed a crime or not. That needs to be taken out.”
She added that “there (are) no disciplinary measures in place.”
Francesca Wright from People Power Davis was similarly critical of the policy.
She praised the council for the ordinance, but stated, “While these are promising first attempts, we believe that they are not fully in compliance and require much greater specificity.” They asked a privacy expert in Oakland to evaluate the device reports for the body-worn cameras and automatic license plate readers and he recommended they not be approved.
“We just don’t believe the reports are sufficiently detailed and thorough at this point to make you (the council), to make a well informed decision,” she said, and asked that they wait until after People Power meets with the chief and after getting recommendations from the interim auditor.
Former City Council Candidate Eric Gudz told the council “the definition of critical incidents needs to be looked at much more carefully.” They added that “the accountability question troubles me.”
Former DA Candidate Dean Johansson praised the work of Chief Pytel here, but echoed the concerns of others to keep both the body-worn camera and automatic license plate readers policies for another day after greater consideration.
Donna Russell told the council to look at Chief Pytel’s report “and then consider how many willful omissions and spins are put into that report.” She said that if the council passed this as is, “it could create a disaster of safety for the citizens who could be willfully victimized by the police as they write they didn’t realize it was an incident so they didn’t turn it on. All of those little loopholes are giant tunnels that, created into this report, is an example of his policing policies. You should hold him accountable for this.”
Following public comment, Chief Pytel, in response to public concerns, explained that he believed the latter clause would allow the Picnic Day incident to be released.
He explained, “It would have.” He reiterated that one of the bullet points specified: “Any other police encounter where the Police Chief and the City Manager determines release of video is in the public interest.”
He said that videos like the Picnic Day incident, “that’s what the public interest is,” to release it. “The public is essentially demanding that the videos be released,” he explained. “While it used to be okay for us to say we’re going to hold onto it for a lengthy period of time, you’re seeing agencies now releasing video days after an incident rather than even the 30-day or 45-day period that is recommended.
“In some cases that can really turn the tide so people understand what happened,” he said. “That is what’s going on right now.”
He explained that this lays out the policy for use of body-worn cameras. There are separate policies that lay out the disciplinary action should an officer fail to comply.
Ultimately the council decided that they did not want to get in the way of the use of body cameras. They created steps to make sure they had multiple bites of the apple and made the current policy an interim policy that would be reviewed in six months.
That vote passed by a 3-2 vote, with Gloria Partida and Lucas Frerichs dissenting.
—David M. Greenwald reporting