Seeing Isn’t Always Believing by Joe Davis

Seeing Isn’t Always Believing

by Joe Davis

Introduction

Recently, the use of body cameras by our nation’s police officers has been a topic of spirited discussion; and for good reason.  The year 2014 saw numerous examples of video footage that depicted law enforcement officers “behaving badly,”[1] and many members of the public were outraged.[2]  In other circumstances, we heard stories of police brutality,[3] but lacked the video evidence to either corroborate or dismiss the eye-witness accounts of such events. While many mourned, others were left unsure how to feel, and battle lines were drawn.  In the wake of the shooting death of Michael Brown in Ferguson, MO, President Obama has called for $263 million of funding, which would go towards the purchase of 50,000 body cameras for use by police officers in precincts throughout the United States.[4]  But is this a wise decision by the president, or a knee-jerk reaction aimed at garnering public approval in the midst of tragedy?  The truth is, there are very few precincts that have implemented the use of body cameras,[5]and where they have, studies done on the effectiveness of the devices, while generally positive, are few and far between.[6] Even absent sufficient statistics, however, the conclusion that body cameras have the ability to effect positive change in police/civilian relations can be reached based on intuition alone.

Discussion

Police Accountability

Wearing a badge in this country comes with increasing amounts of authority.  With that authority should come increased responsibility and accountability, both of which are provided by wearing a body camera.  Logic tells us that when an officer knows his actions are being recorded and are subject to review, he will be more likely to act within the realm of his actual authority, as defined by police protocol and the 4th amendment to the United States Constitution.[7]  My colleague will contend that the deterrent effect of body cameras is already being accomplished by an increase in recording of police activities by ordinary citizens on their cell phones.[8] However, it seems clear that vigilante oversight falls short of police-worn cameras for numerous reasons.  First, when a police officer wears a camera, he is constantly aware that his actions are being scrutinized, as the reminder is strapped to his body.  When a citizen records an officer, unless said citizen makes their presence known, the officer has less of a reason to believe that he is being held accountable, rendering any deterrent effect null and void.[9] In the instance that a citizen-recorder does make their presence known, the officer will surely be able to inhibit the citizen’s oversight.[10] It is not uncommon for the bystander recording an arrest on their cell phone to become subject to arrest themselves.[11] While it has been established that recording a police officer in public “is a form of speech” protected by the First Amendment, there have been many exceptions carved out of that right which allow an officer to interfere.[12] For example, a policy paper produced by the International Association of Chiefs of Police (IACP) places a number of restrictions on those who would film an officer, including being unreasonably close, positioning themselves in a way that impedes an officer, and distracting or “unduly hindering” an officer’s activities with questions.[13] The broad language of these guidelines would allow an officer to “shut down” a person recording their activities in almost any situation imaginable.  In sum, civilian cell phone recordings are inadequate in many situations because they do not deter if they go undetected, and if detected, they are easily eliminated.[14]

Civil Liability

The possibility of incurring civil liability for their actions is another deterrent to police misbehavior.[15]            Police-worn body cameras provide multiple benefits in this context, and are once again superior to recordings made by the average citizen.  First, where a body camera would ideally capture an officer’s entire encounter with the subject of an arrest,[16] it is often the case that recordings done by civilians do not begin until a possible violation, such as the use of excessive force, has already begun.  Imagine the ensuing civil trial.  If the plaintiff were able to enter into evidence a recording of the full encounter shot by a police body camera, the jury could see the event and dole out justice accordingly.  If the plaintiff had only a partial recording of the event provided by a cell phone-wielding passerby, the door would be open for the defense to claim that their client’s actions were warranted based on events that occurred before the recording began.  This creates a situation in which law enforcement’s word is pitted against the plaintiff’s, which, historically, has not worked in favor of those bringing civil actions against police officers.

Cell phone videos in the context of civil cases against the police raise additional concerns.  For example, when a body camera worn by an officer records an image, it is generally uploaded onto a secure database that is in the control of either the precinct itself, or a private entity employed by the police to handle such data.[17] This is important for multiple reasons.  Practically, it means that the footage is readily available when the time comes for a trial.  Both the plaintiff and the defendant know where/how to acquire the video.  Furthermore, in evidentiary terms, the data stored in a secure database is reliable and more easily admitted at trial.  The proponent of the evidence must simply show the “chain of custody” of the footage (essentially that the data was protected from tampering from the time it was recorded to the time it was brought to trial), and it will be admitted, barring additional evidentiary issues.  A civilian’s cell phone video does not share these practical and evidentiary benefits.  For one, a plaintiff may have to rely on the person who recorded the encounter (who they may or may not know personally) to come forward with the video.  On the other hand, if the video is readily accessible after the recorder uploads it to a social media account or other medium such as “YouTube” (as seems to be the popular course of action), the footage’s reliability as evidence becomes suspect.  Proving that the video is being presented in its original form, free from tampering, may be extremely difficult for a plaintiff.[18]

Conclusion

The purpose of this article is not to discourage individual civilians from recording actions of police officers that they suspect violate the rights of their fellow citizens.  This kind of activity, as it becomes more widespread, is an excellent way to put law enforcement on notice that while they are appreciated, they are also subject to necessary levels of scrutiny by an informed public.  Instead, the contention of this article is that cell phone videos should merely supplement, and not supplant, body cameras worn by police.

 

[1] The use of this phrase is not meant to trivialize the matter; for in fact, “behaving badly” in these terms usually means the violation of the rights we as Americans hold most dear, (i.e. the right to privacy, freedom of unwarranted harassment by the government, etc.) and that have been promised to us by the Constitution of the United States.

[2] See, e.g., Optrex, APD HelmetCam Footage of Shooting a Homeless Camper, YOUTUBE (Mar. 24, 2014), https://www.youtube.com/watch?v=4TVRa8eAuBw.

[3] See Shooting of Michael Brown, WIKIPEDIA, http://en.wikipedia.org/wiki/Shooting_of_Michael_Brown (last visited Jan. 24, 2015) (outlining the shooting death of Michael Brown, in which the shooter, police officer Darren Wilson, was not indicted).

[4] This plan, if approved by Congress, would provide “…$75 million over three years to match state funding for cameras by 50 percent…” See Carrie Dann, Obama Requests $263 Million for Police Body Cameras, Training, NBC NEWS (Dec. 1, 2014), http://www.nbcnews.com/politics/first-read/obama-requests-263-million-police-body-cameras-training-n259161.

[5] Although, it is becoming increasingly popular as cities around the nation plan to launch “trial runs” of the use of body cameras.  See, e.g., Tina Susman, New York City Police Officers to Wear Body Cameras in Pilot Program, LA TIMES (Dec. 3, 2014), http://www.latimes.com/nation/nationnow/la-na-ny-police-cameras-20141203-story.html.

[6] See Megan Cassidy, Phoenix Police: Body Cameras Beneficial but Costly, THE REPUBLIC (Jan. 22, 2015), http://www.azcentral.com/story/news/local/phoenix/2015/01/21/phoenix-police-body-cameras-beneficial-costly/22142475/.

[7] U.S. CONST. amend IV (protecting citizens from unreasonable searches and seizures by the government).

[8] Fellow junior editor, Brad Hargett, has written a related article in which he outlines the deterrent effect of cell phone recordings on police misbehavior, and how it has diminished the need for body-worn cameras.

[9] While this argument loses some validity due to the prevalence of everyday smart phone use with recording capabilities, it still stands to reason that in the heat of the moment a cop will forget about the possibility of the passerby filming him more easily than he will forget the mandated part of his uniform that records his every move.

[10] Bill Briggs, Can the Cops Cuff You for Filming an Arrest?, NBC NEWS (Jul. 23, 2014), http://www.nbcnews.com/tech/gadgets/can-cops-cuff-you-filming-arrest-n162351.

[11] Id.

[12] Id.

[13] Id.

[14] For practical application of this argument, one can look to an incident that unfolded just last year on Staten Island, where members of the NYPD used a chokehold during the arrest of a man suspected of illegally selling cigarettes.  The man, Eric Garner, later died of injuries sustained during the arrest.  While the encounter was filmed by a bystander, no officers involved in the confrontation were indicted for their actions; see David Goodman, Wave of Protests After Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case, THE NEW YORK TIMES (Dec. 3, 2014), http://www.nbcnews.com/tech/gadgets/can-cops-cuff-you-filming-arrest-n162351.

[15] For example, citizens are able to bring a civil action against a state actor under 42 U.S.C. §1983 when they feel that they have been deprived of their Constitutional rights by said state actor.

[16] While this is not always the case, there are safeguards in place to ensure that it happens.  See Kashmir Hill, A Future In Which Every Police Officer Wears a Body Cam Isn’t Entirely Rosy, FORBES (Nov. 5, 2014), http://www.forbes.com/sites/kashmirhill/2014/11/05/a-future-in-which-every-police-officer-wears-a-body-cam-isnt-entirely-rosy/ (providing an example of two Daytona Beach officers who lost their jobs after a forensic analyst found that they had manually turned off their cameras during the arrest of an alleged drug user).

[17] See generally, Michael D. White, Police Officer Body-Worn Cameras: Assessing the Evidence, OFFICE OF JUSTICE PROGRAMS (2014), https://ojpdiagnosticcenter.org/sites/default/files/spotlight/download/Police%20Officer%20Body-Worn%20Cameras.pdf.

[18] Especially in this day and age, where doctoring video/photographs is as easy as downloading software onto your personal computer.

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