In light of the decision in Floyd v. City of New York (the “Stop and Frisk” decision) and the recent events in Ferguson, Missouri and Staten Island, New York, police departments nationwide are implementing the use of body-worn cameras. Preliminary case studies, such as those in Rialto, California, have shown that the use of body-worn cameras can decrease use of force incidents and can substantially decrease citizen complaints. Police body-worn cameras enable police departments to demonstrate transparency and openness with the community, they can improve the performance of police officers, and they can improve the behavior of the citizens being recorded. However, there are several issues that need to be addressed by police departments prior to implementation:
- Cost: Body-worn cameras are not cheap and the costs escalate when factoring in the storage of the data in a secure and protected environment, the need for additional employees to maintain and review the data captured, the need to redact sensitive information, production of footage for discovery purposes, and production of footage in response to state public records laws. Police departments are absorbing the majority, if not all, of these costs.
- Community Expectations: There is a misconception amongst community members that the police body-worn cameras are constantly running and capture the officer’s entire shift. This is rarely the case for a variety of reasons, including the practical issues of data storage and other reasons regarding officer and citizen privacy. Police departments need to temper the community’s expectations with the realities of the body-camera implementation.
- Privacy Issues: Although the body-worn cameras are being implemented in order to provide transparency between the police department and the community, the cameras also create critical privacy issues. Crime victims have certain privacy rights and protections, especially in cases of sexual assault and domestic violence. In addition, witnesses may not feel comfortable being recorded when providing information about a crime. Trust is critical to good relations between the police and the community. If community members feel that their privacy is being violated, that trust will erode. Many jurisdictions give officers discretion on whether or not to record in these situations. In addition, many jurisdictions are mandating that the officer get consent from the victim or witness prior to recording statements.
- Community Trust: In addition to victims and witnesses, community members need to be afforded a right to privacy. Community members may want to retain anonymity when providing information to the police about crimes being committed in their neighborhood. This communication is essential to successful community policing. Many jurisdictions give officers discretion to turn off cameras during certain citizen contacts.
- Camera Functions: What happens when a camera malfunctions, the body camera is dismantled from the officer’s uniform, or the officer forgets to turn the camera on? Will there be an automatic presumption against the officer that malfeasance occurred? Will the officer have discretion when to turn the camera on or off? Standard operating procedures should address when the officer is mandated to turn the camera on and how the officer should handle a camera malfunction. Officers should be instructed to document the reason s/he is turning off the camera while recording and reiterate the reason in written reports. In the event that an officer forgot to turn the camera on, this should be documented in a written report.
- Camera Vantage Points: Although the cameras may record an incident, the camera is not recording the entire scene surrounding the police officer and does not take into account everything the officer is hearing, seeing, and perceiving at the moment of the incident. If an officer is looking one way, but his body is directed another way, the incident may not be recorded at all. Police departments must temper community expectations with the realities of the technology that is being utilized.
- State Disclosure Laws: Some states have expansive public record disclosure laws. How will the police department handle disclosure requests? If an officer responds to my house for an incident, will my neighbor be able to request the video footage? Can a citizen request months of footage for a specific officer? If an officer has a valid right to be in your home and is recording, who is responsible for redacting the photos of your children or the recordings of your children on the officer’s footage? Can an officer utilize the camera in a hospital where sensitive health information is being recorded? Police departments will not only be responsible for providing the records, but also for redacting the sensitive information. Legislature has not addressed these important disclosure issues in several states.
- Two Party Consent States: There are 11 two-party consent states where it is illegal to record someone without the consent of both parties. How do these laws affect the use of body-worn cameras in those states? In some states, the legislature has not yet addressed these issues.
- Policies and Procedures: Police Departments must have clear and concise policies and procedures in place regarding the use of body-worn cameras. The General Order should address the responsibility of the officer to turn the equipment on during certain police encounters, privacy concerns, chain of custody issues, data downloads, data storage, and discovery procedures. Police departments should coordinate with the prosecutor’s office to discuss chain of custody issues and data discovery procedures. General Orders should also address whether or not an officer is allowed to view the footage prior to being questioned after an event involving use of force.
- Police Training: Officers should receive extensive training not only on the technical aspects of the body-worn cameras, but the legal ramifications of the cameras as well, including privacy concerns, 1st Amendment issues, and 4th Amendment issues on an annual basis. Supervisors should also use video footage as a training tool.
Body-worn cameras can be an extremely useful tool in the implementation of a community policing program, however the above concerns need to be addressed prior to implementation of the body-worn cameras. Although many police departments are feeling pressure from the community to implement these programs, proper consideration of all concerns is required prior to implementing a successful program. Without adequate policies and procedures, training and legal analysis of the current laws, the body-worn cameras will not provide the benefit that the community is seeking and the police department is attempting to provide.