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National Association for Civilian Oversight of Law EnforcementOctober 8, 2015

On-Body Cameras: Answering Tough Questions from Empirical and Legal Perspectives

©2015 Best Best & Krieger LLP

PRESENTED BY

Jordan E.A. FergusonBest Best & Krieger LLP

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Agenda• Promises and Challenges of Body Worn

Cameras• Policy Establishment• Privacy Issues

Public Records ActPrivacy Interests of CitizensPrivacy Interests of Officers• Data Retention Issues• Criminal Justice Issues

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BWCS: PROMISES AND CHALLENGES

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PROMISES OF POLICE BODY-WORN CAMERAS

• Transparency in the delivery of public safety services on the street

• Accountability for officer conduct• Legitimacy of officer conduct and

responses• Restoration of public trust in public

safety conduct• Prevention of official “cover-up”• Provide solid evidence of “what

happened”• Improve officer behavior toward

citizens• Improve citizen behavior toward

officers

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PROMISES OF POLICE BODY-WORN CAMERAS(continued)

• Enhance and complete other recording sources -- dash cams, stationary cameras, media recording, citizen recording

• Diminish and expedite resolution of citizen complaints of officer misconduct, investigations and law suits

• Improve evidence available to the criminal justice system Detection, identification and arrest Convict the guilty and avert acquittals Prevent false prosecutions and wrongful

convictions

• Enhance officer training

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CHALLENGES OF POLICE BODY-WORN CAMERAS

• Alter police-civilian relations Undermines community bonds & trust Eliminates the “space” to develop bonds

of affiliation & trust Deter contact with officers Affect police discretion to “let off” with a

warning, cut some slack or bend the rules Most police activity is providing care &

support -- mediating disputes, helping crime victims, the injured and those in distress, addressing the mentally ill, DV

Deter crime reporting• Reveal the “ugly truths” of street law

enforcement• “Surveillance” v. public monitoring

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CHALLENGES OF POLICE BODY-WORN CAMERAS(continued)

• Provide a “frame-by-frame” narrative of events---possibly giving a false depiction and distorted view, and only a part of the story

• Distort the criminal justice process—BWC footage: the new DNA?• PRIVACY

Indiscriminate filming Zone: Private-Public Space---innocent,

bystander behavior Zone: Private Places---homes, offices,

schools, hospitals Privacy concerns for crime victims, suspects,

witnesses, informants, bystanders Officer privacy “Recording People on the Worst Day of

Their Lives”---naked or injured victim, berserk drunk, screaming maniac

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BWC POLICY ESTABLISHMENT

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ESTABLISH A POLICY!

• Prior to implementing BWCs in your department, it is crucial to have a comprehensive, well-considered policy in place• A policy will:

Clarify position of department

Assist in training Insulate from potential

litigation

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BWC Policy Checklist

• Purpose of policy• Objectives of BWC program• Authority of Department

over footage• Prohibitions of use• Administration of program• Training• Personnel Deploying BWCs

• Operational ProceduresPre-DeploymentActivation of BWCsEnd of Shift

• Categorization, Storage, and Retention• Review of Footage• Release of Footage

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BWC Policy Checklist

• Legislation---state and local Authorization and limitations Uses—internal and external Civilian oversight Public access Retention, storage, redaction and deletion

• Operational Who---patrol, ranking officers, SWAT, detectives When---nature of activity, duration & place Officer discretion to activate or not & exceptions

• Informants• Juveniles• Privileged subjects (medical, spousal, psychiatric)• DV and sex crime victims• Bystanders• Reporting parties, citizen informants• Requests not to record• Safety concerns

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BWC Policy Checklist

• It is important to plan a “meet and confer” with the local POA prior to adopting a policy• Several departments have been sued for instituting

BWC policies without first meeting and conferring with local police unions• The more eyes on your policy prior to adoption, the

more chances all errors will be ironed out before your BWCs are active in the field

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AB 69

• Became law in September 2015• Adds section 842.18 to the Penal Code

regarding (BWC) worn by peace officers• Aimed at encouraging Law Enforcement

Agencies to develop BWC policies• Encourages Agencies to consider best practices

when developing policies• Keep in mind the practices highlighted in AB 69

as you develop your own policies

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Policy Enforcement

• Remember, a policy is only as good as its enforcement• If the policy is not

followed consistently, it cannot be used effectively to defend against litigation• Establish procedures to

ensure the policy is being followed

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PRIVACY ISSUES

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Public Records Act Requests

• CA PRA Investigative exemption

(Gov. Code § 6254(f))County of Los Angeles

Board of Supervisors v. Superior Court (B257230, 4/13/15, currently before CA Supreme Court on review)

Structure policies based on PRA disclosure requirements

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Public Records Act Requests

• Legal Issues Public Records Act/FOIA & Exceptions

• Time, expense, editing and redactions, harassment Privacy torts 1983 actions

• Legislation PRA/FOIA categorical exception Designate who is to decide on release

• Police• DA• civilian executive• court

Conditions or cases for release• involved parties• UOF/OIS incidents• public interest matters• assistance in identification & apprehension

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Public Records Act Requests

• Uniform disclosure policy is essential• You cannot release only

the videos that make the department look good• Establish a policy for

when disclosure is appropriate and stick to it

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Privacy Interests of Citizens

• Police officers have the right to record wherever they are lawfully present• Residents have a

reasonable expectation of privacy in their homes, yet when officers are lawfully present in a home, recording is lawful

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Privacy Interests of Citizens

• Advise of recording? It dependsWill it help gain

compliance?Will it assist in the

investigation?Will it interfere with officer

safety?• Consent not required to

record

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Privacy Interests of Citizens

• As a general policy, personnel should refrain from video recording or photographing peaceful demonstrations• During demonstrations,

officers should record if the officer witnesses a crime occurring or believes an arrest is likely

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Privacy Interests of Officers

• Officers should not use BWC equipment to record other officers outside the field• BWCs should not be used to

record non-work related activities• BWCs should not be used in

places in Department where a reasonable expectation of privacy exists

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DATA RETENTION ISSUES

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Data Retention

• All BWC recordings should be stored and retained in accordance with applicable retention laws (In CA, see Gov. Code §§ 26202, 34090)

• BWC recordings should be retained for no longer than useful for purposes of training, for use in an investigation or for use in prosecution.

• Recordings with no evidentiary or training value should be destroyed within an appropriately brief period

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CRIMINAL JUSTICE ISSUES

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CRIMINAL JUSTICE ISSUES

• Discovery in criminal cases Prosecution review, editing, time and practicalities Imposing and enforcing limits on disclosure & dissemination by the defense

• Brady implications Report or statement is inconsistent with BWC video data Duty of preservation and disclosure

• Risks posed to officers, witnesses, victims• Public dissemination risk of prejudicial pre-trial publicity• Use in interviews• The “DNA Effect”---no film, no crime, no conviction• Use in the courtroom---the “distortion” effect and “legal prejudice”

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SOURCES

USDOJ: Body-Worn Camera Toolkit (May, 2015)

Miller & Tolliver (COPS-USDOJ): Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned (2014)

President’s Task Force on 21st Century Policing: Interim Report (March, 2015)

NIJ: A Primer on Body Worn Cameras for Law Enforcement (September, 2012)

Michael D. White OJP (DOJ): Police Officer Body Worn Cameras: Assessing the Evidence (2014)

Los Angeles Police Department: Body Worn Video Procedures (April 23, 2015)

Labor Relations Information System: “Model” Body-Camera Policy (September 14, 2014)

ACLU: Police Body-Mounted Cameras: With Right Policies in Place, A Win-Win for All (October 9, 2013)

PublicCEO: Why We Shouldn’t Leave Police Departments to Work Out Body Camera Rules (August 22, 2014)

Police Exec. Research Forum: Growing Use of Body Cameras (Sept./Oct., 2013)

Barack, Farrar & Sutherland: “The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial,” Journal of Quantitative Criminology (2014)

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Questions?

Jordan E. A. FergusonJordan.Ferguson@bbklaw.com Best Best & Krieger 300 South Grand Avenue25th FloorLos Angeles, CA 90071Tel: (213) 787-2564 Website: www.bbklaw.com