Lights, Camera, Action: Entering the Age of Electronic Law Enforcement with the Use of Body-Worn Cameras

By: Michelle L. Warden. This was posted Wednesday, December 9th, 2015

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Michelle L. Warden, Esq. - Sands Anderson PC

This article was originally published in the Journal of Local Government Law, a publication of Local Government Section of the Virginia State Bar. It is posted here with copyright permission.

Rapid technological advancements are putting law enforcement agencies across the country in a difficult position. It is now easier than ever for citizens to record police officers’ actions while they are on the job. As such, law enforcement agencies are considering whether to implement body-worn cameras (“BWC”) for their officers, at least in part, to document the officers’ perspective in their encounters with the public. Although BWC come with benefits for officers and citizens alike, they also come with obvious and not so obvious downsides. This article explores the push behind implementing BWC, the advantages and limitations of the cameras in policing, and suggestions to properly adopt such technology.

Lights, Camera, Action: Entering the Age of Electronic Law Enforcement with the Use of Body-Worn Cameras by Michelle L. Warden, Esq.

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In 2013, the Police Executive Research Forum (“PERF”) sent surveys to 500 police departments in the United States and conferred with top law enforcement executives from across the country to discuss the use of BWC. PERF designed the survey to examine the main concerns with the usage of these cameras. The survey included questions such as (i) whether officers are required to wear BWC, (ii) the requirements for recording an encounter, (iii) where to place the cameras on the officers’ bodies, and (iv) the collection, storage, and review of the data. Of the 254 agencies that responded to the survey, over 75 percent of the agencies reported that they did not utilize BWC as of July 2013. Importantly, of the 63 agencies who reported using BWC, nearly one-third did not have a written policy governing their usage of the cameras.

Fast-forward only a few years, and now large numbers of law enforcement agencies are investigating their options for this technology. According to a 2015 report by Public Technology Institute (“PTI”), BWC ranked first among technological priorities facing law enforcement officials today. While it is unknown how many departments within the Commonwealth of Virginia have deployed BWC, most, if not all, have at least considered implementing a program. This growing trend for BWC use by police stems, at least in part, from the prevalence of smartphone users with video capability, recent incidents of police officers use of force, recent inmates deaths while in police custody, and the subsequent protests across the country that have been widely publicized in the media. As such, the Federal, state, and local governments are pushing law enforcement agencies to outfit their police officers with BWC.

President Obama’s Executive Order
In an effort to strengthen community policing and trust among law enforcement officers and the communities they serve, President Obama signed an Executive Order on December 18, 2014 establishing the Task Force on 21st Century Policing. Pursuant to the Executive Order, “the Task Force shall, consistent with applicable law, identify best practices and otherwise make recommendations to the President on how policing practices can promote effective crime reduction while building public trust.” Among the proposed initiatives is a 3-year, $263 million investment package, of which $75 million would be allocated to issuing 50,000 BWC to law enforcement across this country. President Obama’s program, however, still requires congressional approval. Therefore, there is no ability to compel law enforcement agencies to outfit their officers. At this time, there is simply an attempt to push law enforcement agencies to join the program.

Virginia’s Law Enforcement Technology Sub-Panel
Following the release of the Task Force’s Interim Report, Virginia Governor Terry McAuliffe created a special sub-panel of the Secure Commonwealth Panel (an advisory board in the executive branch of state government) to focus on emerging technological advances facing law enforcement. The 31 member sub-panel is chaired by Brian Moran, Secretary of Public Safety and Homeland Security, and is comprised of experts from Governor McAuliffe’s Administration, the legislature, law enforcement, the private sector, and other citizens of the Commonwealth of Virginia. The sub-panel is currently in the process of exploring constitutional, privacy, economic and public safety issues related to the use of BWC by law enforcement officers. Additionally, the sub-panel is considering data storage and retention, equipment, and how to properly handle the evidence once collected.

The Shift Towards the Use of BWC by Police
Although law enforcement officers have traditionally perceived the use of BWC, and other recording devices such as dashboard cameras, in a negative light, their perspectives are changing and officers are starting to accept or even desire to use BWC as a tool on their belts. At least some of the rationale behind this shift is that lay persons are starting to expect police officers to have a video recording of an incident in order to view an unbiased and accurate depiction of the incident. In addition, police officers want to have their own video footage of the incident to show their perspective and to quash frivolous complaints. For the officers who continue to oppose a BWC program, it is imperative to raise the officers’ awareness of the advantages associated with this technology in order to reach its full potential. Thus, getting the most out of the new technology will require the buy-in of the officers who use it.

Advantages of BWC in Policing
In general, the positive impacts of police use of BWC include enhanced officer safety, significant reduction in the hostility displayed by citizens who are informed or believe that their actions are being recorded, enhanced evidence collection and prosecution, enhanced officer adherence to agency policy and procedures, enhanced officer performance and professionalism, improving officer accountability, and decreased law enforcement liability.

Evidentiary Purposes of BWC: Setting aside the time required to review the data, prosecutors should find their jobs are materially easier with effective use of BWC, which can capture evidence such as victim statements and confessions. BWC have the ability to help officers collect this evidence under circumstances in which officers are focused on securing a scene and providing life-saving measures. Such technology has the added benefit of capturing everything that happens as the officer travels throughout the scene, and interviews witnesses.

Some prosecutors have even encouraged officers to use BWC to obtain more reliable evidence that can be used in the courtroom. For example, domestic violence cases are oftentimes challenging to prosecute because the victim does not wish to press charges. While the victim may have been a willing participant when the officers responded to the call, that same victim may have a change of heart by the time the court date comes around. The BWC have the ability to capture the victim’s statement, the victim’s injuries, and the victim’s demeanor close in time to the incident—assuming the department’s policies permit the videotaping of victims.

Similarly, BWC have the ability to capture an interview of a suspect including the manner in which the interview was conducted (whether there was coercion involved), whether the suspect was properly informed of his or her Miranda rights, the suspect’s confession itself, the suspect’s behavior throughout the interview, and potentially even physical evidence from the crime (i.e. blood on the suspects body or a tear in the suspects clothing), all of which let the prosecution focus on other elements of the crime, assured that the recordings are capable of persuading even the most doubtful of jurors.

The Accountability Effect of BWC in Policing: In 2012, the City of Rialto Police Department in Southern California conducted the first known study on the impact of BWC on the number of citizen complaints against officers. Over the course of a year, the department randomly assigned officers to two groups: the Experimental-Shifts (officers were required to wear BWC during their shift) and the Control-Shifts (officers were forbidden from using BWC during their shift). The results were astounding: the use of BWC reduced use of force incidents by 59 percent, and the use of BWC reduced citizens’ complaints by 87.5 percent.

These results beg the following questions: Were the reduced numbers of complaints because officers were better behaved? Were the reduced numbers of complaints because the citizens knew they were being videotaped and, therefore they were behaving better? Is it a combination of both of these factors? Whatever the reason, this study suggests that there are significant advantages to implementing a BWC program.

Limitations and Concerns Regarding the Use of BWC in Policing
While there are a number of advantages to using BWC, it is imperative for law enforcement agencies to consider the limitations of this technology. Some of these limitations are based simply on the functionality of the camera itself, while others are based on the officer’s usage and the perceptions surrounding the use of this seemingly new technology.

Functionality of BWC: The video quality in low or high light situations may be poor. Likewise, the audio quality may also be poor due to background noise (e.g. officer responds to a loud party) or, if the camera is of a lower quality, it may have a constant hum throughout the recording. Because BWC function on battery power, there are some concerns as to whether battery life will meet the officer’s expectations and whether the officer will properly recharge the battery prior to his or her next shift. In addition, some officers, especially more seasoned officers, may feel that adding new equipment is burdensome. Whether it is the learning process behind utilizing the camera itself, or the hurdles of properly marking the video footage as evidence and properly storing the footage, officers have legitimate concerns about the use of this technology that cannot be ignored.

BWC Require Financial Commitments and Costs: Rightfully so, law enforcement agencies are troubled by the costs associated with BWC and, therefore, agencies should carefully budget for the expenses associated with this technology. While there is some expense to purchasing the cameras itself—the hardware costs between $800 to $1,000 per camera—the bigger fear expressed by numerous Virginia police departments is the costs associated with the storage of the video footage, and the personnel costs associated with the data. There are costs associated with reviewing the video footage to determine how long such footage should be maintained, there are costs associated with reviewing the footage when there is a use of force incident or citizen complaint. There are costs associated with reviewing the video footage for training purposes. There are also costs associated with redacting any video footage, if permitted by law pursuant to a Freedom of Information Act (“FOIA”) request. For example, the Chesapeake Police Department has approximately 250 uniformed officers who are required to record every encounter with citizens when performing law enforcement related duties or when responding to calls for service. The City of Chesapeake pays roughly $1,800 per camera, which includes mounting equipment, licensing fees, and maintenance plans over a five-year period. The annual data storage for the entire department costs approximately $24,000. However, larger police departments can expect their expenses to be exponentially higher. “Officials in Charlotte, N.C., recently approved spending $7 million over a five-year period to purchase and operate 1,400 police body cameras.” Thus, the costs of utilizing BWC will vary from department to department depending on the size of the department, the crime rate, how frequently the officers’ record encounters, and how long the department decides to maintain the video footage for evidentiary or other purposes.

Capturing the Encounter: BWC do not have the ability to magically capture an incident that is not within the view of the lens. While law enforcement officers must be aware of the limitations of these cameras to attempt to obtain the best possible footage, the legal community and the citizens must also be mindful that BWC may not capture everything that they want. As an example, the most commonly used BWC are clipped to either an officer’s chest or an officer’s glasses. When BWC are worn on the chest, the cameras may not be able to record an image that the officer is looking at due to its lack of mobility. On the other hand, cameras attached to an officer’s glasses have the ability to capture more of the scene as the officer turns his or her head. For example, Officer Jones responds to a robbery and observes the suspect flee the store on foot. Officer Jones gets into a foot pursuit with the robbery suspect and observes the suspect throw an item to his left, which lands approximately ten feet away. Depending on the closeness of Officer Jones to the suspect, the camera located on his chest may only record the suspect’s arm out to his left side. However, if Officer Jones was wearing the camera attached to his glasses and looked to see what the suspect had thrown, the camera would have recorded the robbery suspect throwing a handgun to the ground. For obvious reasons, the later scenario would provide a much larger picture of the incident, which would be better for evidentiary purposes.

However, the camera attached to an officer’s glasses may distract an officer, or be more likely to fall off during physically demanding situations. This scenario occurred in Draper, Utah, where an officer observed a man slumped over in his vehicle. The officer approached the subject and had him exit the vehicle. Because the subject was possessed evidence of illegal drugs, the officer handcuffed him and placed him under arrest. During this encounter, another officer arrived on scene and the officers began the process of switching out their handcuffs. During this exchange, the subject’s hands were freed and he ran back to his vehicle. A struggle ensued between the subject and the officers at which time one of the officers’ BWC fell to the ground. Seconds later, the officer fired his gun several times shooting and killing the subject. What was not captured on the video was the point at which the suspect pulled a knife on the officers. Thus, it is imperative that agencies prepare the officers—and perhaps more importantly the public—that BWC are not foolproof and that they must be able to articulate what happened if an incident is not captured on video. In addition, officers should also get into the habit of verbalizing what is occurring during the citizen encounter so that the statements are at least recorded when the video may not be. Similarly, due to officer safety concerns, an officer may not have the time or ability to turn on his camera before the encounter or incident occurs—situations in which officers must also be able to articulate why this inability occurred.

The Fear of Big Brother is Real: While most agencies permit supervisors to review video footage based on a citizen complaint or use of force incident, the real debate surrounds whether the agency should periodically and randomly review videos to identify problems and hold officers accountable for their performance. Doing so erodes the trust between the patrol officers who are utilizing the technology and their supervisors.

In addition, some officers feel that they should have the authority to determine when to turn the cameras on and off. Put another way, they feel that they should have the discretion to determine when to use BWC just as they do for their use of handcuffs, pepper spray, baton, Taser gun, handgun, or any other tool on their belt. Thus, one of the most important decisions an agency must make in implementing a BWC program is determining how it will use the camera footage. Agencies should be mindful of the officers’ apprehensions and implement policies and procedures that are appropriate for their individual departments.

BWC Create Concerns for Officers’ Privacy: Law enforcement officers do not want the cameras to remain running for their entire shift while they are performing non-police related duties or not encountering citizens (such as using the restroom, taking a meal break, or engaging in community policing activities). These concerns should also be considered when implementing policies and procedures.

BWC Create Concerns for Citizens’ Privacy: Although civil rights advocates such as the American Civil Liberties Union (“ACLU”) generally support the use of BWC by law enforcement so long as the officers are not given the discretion to decide when to turn the cameras off, the impact that the technology has on citizen privacy is not entirely understood. In fact, the public itself also does not want law enforcement to constantly record. In addition, there is a certain level of privacy that should be afforded to confidential informants. If not, there is a potential to lose this valuable tool in law enforcement.

Not only do Federal and state laws place some restrictions concerning the expectation of privacy on using audio and video recording, but the use of such technology captures real time traumatic experiences of citizens who are victims of a crime, who are involved in medical emergencies, and who are being detained and arrested. Recording such events may violate their privacy and exacerbate citizens’ trauma. Thus, “the Body Worn Video Steering Group cautions law enforcement agencies about the collateral intrusion of the technology, particularly with regard to religious sensitivities, inmate searches, witnesses and confidential informants, victims, and communications governed by legal privilege.”

Implementing Policies and Procedures
The limitations and concerns surrounding the use of BWC in law enforcement highlight the importance of implementing policies and procedures governing the usage of this technology by officers. Because law enforcement agencies differ greatly, each department should evaluate which policies and procedures will best suit their officers in compliance with all existing laws and regulations. The policies need to be specific so that officers have the appropriate guidance, but they must also be flexible to allow for changes as the program evolves. In 2014, PERF and the Department of Justice’s (“DOJ”) Community Oriented Policies Services (“COPS”) issued a report identifying 33 recommendations for implementing BWC, including the following:

  1.  policies should clearly state which personnel are assigned or permitted to wear BWC and under what circumstances;
  2. if cameras are assigned to officers on a voluntary basis, policies should include specific provisions when an officer might be required to wear a body-worn camera;
  3. agencies should not permit officers to use privately owned BWC while on duty;
  4. policies should specify where on the body the cameras should be worn;
  5. if the BWC is activated during the officer’s shift, the officer should be required to note the existence of the recording on the incident report;
  6. officers wearing the BWC should be required to articulate their reasoning if they fail to record an activity required to be recorded by departmental policy;
  7. officers should be required to activate their BWC when responding to calls for service and during all law enforcement related encounters unless an exception arises;
  8. officers should be required to inform the subjects when they are being recorded unless it would be unsafe, impractical, or impossible to do so;
  9. once the technology is activated, it should remain in recording mode until the encounter ends;
  10. officers should be required to obtain consent prior to recording interviews with crime victims (e.g. sexual assault cases);
  11. officers should have the discretion to turn off the BWC during conversations with crime witnesses and citizens reporting criminal activity in their neighborhood;
  12. agencies should prohibit recording of other agency personnel during routine, non-enforcement activities;
  13. policies should clearly state any types of recordings that are prohibited by the department;
  14. policies should designate the officer as the person responsible for downloading recorded data from his BWC unless in use of force or in-custody injuries or death (where the supervisor should take immediate custody and be responsible for downloading the data);
  15. policies should include measures to prevent tampering, deleting, or copying of the video footage;
  16. data should be downloaded by the end of each shift;
  17. officers should properly categorize the video footage;
  18. policies should specify the length of time the video footage will be retained by the agency (e.g. 60 or 90 day retention times for non-evidentiary data, but longer for evidentiary data);
  19. policies should state where the video-footage is to be stored;
  20. officers should be permitted to review video footage of an incident prior to making any statement about the incident;
  21. written policies should clearly describe when supervisors are permitted to review an officer’s video footage;
  22. if the agency decides to conduct random reviews of the video footage, it should be handled by an internal audit unit rather than the officer’s direct supervisor;
  23. policies should prohibit personnel from accessing data for personal use and from uploading the data to social media;
  24. policies should include specific measures for preventing prohibited access or release of recorded data;
  25. agencies should have clear protocols for releasing video footage to the public in accordance with FOIA;
  26. personnel using or otherwise involved with BWC should be required to undergo training;
  27. before personnel are equipped with BWC, they must receive all mandated training;
  28. BWC training should include the procedures specified herein;
  29. manuals on the use of BWC should be created in both digital and hard-copy format and available to agency personnel;
  30. agencies should require refresher courses on BWC and protocols on a yearly basis (at least);
  31. agencies should collect statistical data concerning the usage of BWC (e.g. when video footage is used for criminal prosecution or internal affairs (“IA”) matters);
  32. agencies should conduct evaluations to analyze the financial impacts of implementing a BWC program; and
  33. agencies should conduct periodic reviews of their protocols and procedures for BWC.

Because BWC are relatively new in law enforcement, the issues associated with the cameras are just recently becoming understood. By reviewing the policies and procedures on a routine basis, agencies will be in a better position to ensure that they are in compliance with any new laws that may arise surrounding the usage of this technology. More importantly, they will maximize the benefits of the technology.

Training of Officers
With the adoption of BWC in policing, training remains as crucial as ever. Use of force training for law enforcement officers will need to change as juries may be more willing to scrutinize an officer’s judgment based on the video footage available in the courtroom. As law enforcement agencies ramp up their training on the escalation of use of force in a world of BWC, they must also address officers’ perceptions of BWC. In fact, “one of the most challenging issues an agency may face is officer acceptance. If officers feel that the video cameras are being used as a tool to monitor officer behavior,” they may be resistant to using the technology. Thus, it is imperative that agencies listen to their officers’ concerns, emphasize the advantages of BWC, and ensure the officers understand that the primary purpose behind the use of the cameras is for officer safety and protection and evidence collection. To assist in this process, agencies should consider having officers from all different ranks involved in the decision making process (e.g. start a pilot program and obtain the officers’ feedback), start the officers earlier on in their careers whenever possible (e.g. during academy training), and roll out the cameras in smaller increments. Officers need to know that random monitoring of the cameras—if the department chooses to do so—is part and parcel of using the cameras.
Courts and the Law

Because the use of BWC is relatively new to law enforcement, the legal implications are not entirely known. However, with the growing number of departments beginning to outfit their officers with this technology, the legal community can expect to see new law develop surrounding criminal cases, civil cases, and FOIA requests. Although the production of exculpatory evidence is well appreciated, much uncertainty still exists regarding the following: (i) When does the video footage need to be produced in discovery? (ii) When does the video footage need to be produced pursuant to a FOIA request? (iii) How do agencies handle the privacy concerns contained in video footage—such as when a BWC captures an uninvolved citizen who just happened to walk by the camera’s lens? (iv) Why was the officer unable to capture the incident on video? and (v) Why did the officer fail to turn on the BWC? Thus, it is only a matter of time before legal questions on the use of BWC flood our courtrooms.

Summary:
BWC are a tool in law enforcement’s arsenal and should be treated as such. While BWC provide a host of benefits to agencies and the public across the Commonwealth and the Nation, agencies should be mindful of their limitations, have proper policies and procedures in place, and continue training their officers in the proper use of force. The use of such technology through proper policies and procedures has the ability to rebuild communities’ confidences in law enforcement. Ideally, this technology will decrease unlawful activity—whether by the citizens of the community or by law enforcement. By doing so, law enforcement officers can focus on their day-to-day functions of policing—protecting and serving the communities in which they work.

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