By John V. Berry, Esq., www.berrylegal.com
The use and expansion of body-worn cameras for law enforcement officers has caused significant employment issues for law enforcement officers. This article discusses some of the issues that we have seen with law enforcement officers and body-worn camera issues and ongoing thoughts on police officer defense with respect to their use.
HOW OFTEN IS THE CAMERA ON?
One of the first questions that has developed for body-warn cameras is the issue of how long the camera is on. Each police department has been different in this regards (if they have addressed the issues at all). Some police officers are required to leave a body-worn camera on during their entire tour of duty and others are required to leave it on during client contact, or during potential incidents or for a specific period of time during their duty tour. There is a lot of variance, thus far, in police department policies and lack of policy. In addition, some departments, without policies, have seen some law enforcement officers attempt to utilize their own body worn cameras for protection. See Santa Ana Police Officers Ass’n v. City of Santa, CV 15-1280-DOC (C.D.C. Mar 2, 2016). This can pose unique issues in itself.
HOW BODY-WORN CAMERA FOOTAGE CAN BE USED
The footage in a body worn camera can be used in a number of ways which has the potential to harm an officer’s career. For one, sometimes the footage is not complete and only shows a part of a series of developing events or the incident. In other cases, there is so much ongoing footage (full-time coverage) that a violation of department general orders can be found regardless of how good an officer does his or her job. In other words, if every officer was monitored 24/7, a violation of some sort would be found at some point. Thus, it is important for police departments to establish policies which detail when body-warn camera footage will be reviewed and they should be sufficiently narrow. Some police departments have established policies where an officer’s body-worn camera footage will only be reviewed when an incident or complaint has arisen. This is generally the best policy. Police departments with these types of policies generally have better trust from police officers that such footage will not be used to nit-pick everything a police officer does during his/her tour or reviewed without some basis. There have also been privacy issues raised by officers where the body-worn camera is on the entire tour, even during restroom breaks.
Body-worn camera footage, if it exists, can also be used in civil litigation. This is typically the case where a complainant has sued the department or the officer regarding a traffic stop, arrest or other incident. There is a good article on policies regarding some of the issues involving body-worn cameras by the Department of Justice and the Police Executive Research Forum and considerations as to how such footage is used.
THOUGHTS FOR POLICE / LAW ENFORCEMENT OFFICERS
While each situation is different, it is important to keep some things in mind with respect to the body-worn camera.
1. Body-Worn Camera Recordings are Usually Obtainable - Either Department issued or personally owned body-worn cameras can be deemed public and thus obtainable in lawsuits and administrative actions.
2. Officers Should Consider Privacy Issues - It is very important for officers that maintain privately obtained body-warn cameras to consider this issue. If an officer takes footage with a privately worn camera, members of the public may have privacy protections. An officer could be subject to privacy violations for using the footage, even if private in nature. Departments may also have privacy policies for department issued body-worn cameras as well.
3. Police Departments Need to Set Better Rules on Body-Worn Cameras - Even police departments with body-worn camera polices have had issues with fully anticipating each type of issue that can arise. I hope, and expect that as police departments get more used to body-worn camera issues that more specific policies can be developed and issued to protect police officers.
4. Police Departments Need Policies Regarding Review of Body-Worn Camera Footage - Some police departments have developed policies permitting officers to review footage taken from body-worn cameras before testifying or speaking to internal affairs investigators. These policies should be expanded to every police department. Additionally, if an officer has this option, they should usually review the footage before speaking. Events always happen differently, sometimes only slightly, than one recalls. An officer can avoid potential Giglio (truthfulness) issues if they are allowed to review their footage before speaking. Counsel should be consulted.
5. Officers Should Review Video Prior to Making Statements or Incident Reports - Where possible, it is important to review body-worn video prior to drafting incident reports or statements for consistency purposes. This can be very important.
6. Officers Should Ensure that Non-Compliance is Documented (Unless Prohibited) - Where a body-worn camera is taking footage and an incident is occurring, it is often helpful (unless prohibited by policy) to document non-compliance with instructions by members of the public. This can be helpful if the individual later alleges a complaint. Before taking any steps to do this, it is important to ensure that the department permits this and may require approval from supervision.
7. Ensure the Body-Worn Camera is On - Where police departments require the use of body-worn cameras for use only during incidents, it is helpful to ensure that the device is on. We have had cases where the officer is not familiar with technology and the camera is not used properly because of a lack of training, or that the officer has forgotten to turn on the camera to record. Both issues can bring potential administrative discipline.
It is important to understand body-eon camera issues as a law enforcement officer and for an officer to take steps to protect themselves. Please keep in mind that each type of situation involving a body-worn camera is different and can require legal advice. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here Berry & Berry Facebook Page.