THE USE OF BODY-WORN CAMERAS


INTRODUCTION 

The implementation of body-worn cameras has gained increased attention and use among law enforcement professionals. The cameras’ functions includeevidence gathering and promoting officer safety. The cameras are also improving law enforcement through accountability and the potential for better community relations.

The availability of this modern technology presents unique and novel issues:(1) whether to record; and (2) if so, when and how to record.

On whether to record:

Individual police departments can best weigh the benefits and costs of using police body-worn cameras to record given their local law enforcement needs, resources, and objectives.

When and how to record:

The legal and policy issues presented using such technology must first be assessed.

The focus of much of our discussion today will be primarily on when and how to record.

 

BACKGROUND 

The use of technology for law enforcement surveillance and observation is not new. In the early 1990s, dashboard cameras emerged as a method for capturing real-time encounters between the police and the public.  Despite early resistance, dashboard cameras gained widespread acceptance as research demonstrated positive effects on officer safety and accountability and a reduction in agency liability.

Closed circuit surveillance systems have also become increasingly popular as both a method of crime prevention and as a tool for criminal investigations.  The proliferation of smart phones has dramatically increased citizens’ ability to film police officers while performing their duties. Law enforcement agencies increasingly recognize the potential for video footage to assist with prosecuting crimes and fostering accountability and professionalism.

The technology itself is widely available and relatively easy to use.  There are numerous body-worn camera manufacturers in the market place giving law enforcement agencies a range of options to consider.

 

LEGAL CONSIDERATIONS 

  1. Before implementing a body camera program, law enforcement agencies should identify the specific objectives behind the program as well as anticipated benefits, costs, uses, and the impact of privacy from body-worn cameras.
  1. Body-worn cameras should be introduced by agencies incrementally. Agencies should begin with pilot programs and solicit feedback from law enforcement personnel throughout the pilot probationary period evaluating the program’s usefulness in meeting specific objections. Incremental implementation will allowfor adjustments to department policies that better balance accountability, privacy concerns, transparency, and community relationships as the program develops.

 

POLICY CONSIDERATIONS 

The use of body-worn cameras by law enforcement agencies presents a number

of potential benefits as well as risks. The importance of input from the community cannot be understated. One of the core functions of body-worn cameras is to improve community relations.  Advice and feedback from leaders in the community must be sought and considered by policymakers and law enforcement agencies on a continuing basis as policies are developed and implemented. It is important to have a clear, complete Body-Worn Camera Policy containing the following:

 

Written Policies

Written policies should contain clear guidelines as to how body-worn cameras are to be used and how the footage is to be maintained.Written policies should describe at a minimum: when recording is required; how officers should determine recording responsibilities, if multiple officers are on the scene,    whether or not (and how) officers are  to announce  that an encounter is being recorded;   what events officers should not record during an encounter; when supervisors can review footage for retention and audits; elements of officer training; data storage and management requirements; video download procedures; video redaction procedures; preparation of video for use in prosecution; maintenance and upkeep of equipment; how long video is to be retained.

 

When to record 

  1. Policies should set clear rules regarding the types of interactions that are to be recorded and when that recording must begin. The benefits of body cameras are undermined if recording is discretionary.Such policies should be rejected. Recording should begin either (a) during every interaction with the public, or (b) when responding to law enforcement-related calls for service, traffic stops, arrests, searches, interrogations, and pursuits. There must be a clear written policy spelling out the requirements for activation of the cameras. When in doubt about whether to record an encounter, the default should be to record.
  2. The policy should state whether officers should always be required to clearly inform subjects they are being recorded. If that is not the case clear guidelines must be given as to whennotification of recording should be given or not be given.
  1. If recording is limited to law enforcement-related activities, once activated, the camera should remain on until either the conclusion of the incident, the officer has left the scene, or a supervisor has authorized (on camera) that recording may cease.
  1. Should officers be required to obtain consent before recording crime victims? Interviewing crime victims can be especially sensitive (particularly in rape and domestic violence cases). Agencies must have a written policy regarding consent and officer discretion. Agencies may give officers limited discretion to record in thesesituations or require officers to obtain victim consent to record these sensitive encounters. Citizen requests for cameras to be turned off must be recordedto document either in writing or by recording such requests. If the officer denies the request to consent, such a denial should also be recorded.
  1. Policies should be clearly written regarding each officer’s obligations to record and store footage and the potential administrative penalties for violating the recording policy.
  1. Officers should document,in writing or on camera, the reasons for not activating or deactivating a camera in situations that otherwise require recording. To prevent ex post explanations officers should be required to document these reasons contemporaneously.
  1. To make the use of body-worn cameras as predictable as possible and to protect their legitimacy, additional exemptions should apply:
  • Recording should never be used to surreptitiously gather information based on First Amendment protected speech, membership associations, or religious beliefs.
  • Law enforcement agencies should be aware of the heightened right to privacy in a home and other private spaces; policies should be developed to take reasonable expectations of privacy into account.

 

How to maintain the data 

  1. The following types of footage should be automatically flagged for retention: (1) those involving a use of force; (2) incidents leading to detention or arrest; or (3) where either a formal or informal complaint has been registered.
  • Any subject of a recording should be able to flag the recording for retention, even if not filing a complaint or initiating an investigation.
  • Police department personnel should also be able to flag a recording for retention if they have a basis to believe police misconduct has occurred or have reasonable suspicion that the video contains evidence of a crime.
  1. The chain of custody must be clearly preserved and recorded.
  • Policies should clearly describe the responsibility of the officer to turn in and download recorded footage, except for certain clearly-defined incidents – such as officer shootings or use of force – in which case the officer’s supervisor should take physical custody of the camera.
  • Data should be downloaded at the end of each shift. Data should be properly categorized according to type of event captured: if the camera recorded a law enforcement-related event, it should be tagged as “evidentiary”; if not, it should be tagged as “non-event.”
  • Safeguards should be designed to prevent deletion by individual officers.
  • Policies should clearly state where data is to be stored.
  1. The method of storage must be safe from data tampering or unauthorized access, both before uploading and prior to downloading.
  1. There must be effective audit systems in place and clear policies as to who may access the data and when. It is suggested that
  • An agency’s internal audit unit, not an officer’s direct chain of command, should conduct random review of footage to monitor compliance with the program.
  • Policies should specifically forbid personnel from accessing videos for any use other than those specifically authorized by the policy.Personal use and/or uploading to social media websites must be expressly forbidden. Policies should contain specific measures for preventing access for personal use including built-in audits to accurately trace who has accessed the system).
  • Agencies should collect statistical data concerning camera usage. This data should include information on when video footage is used in criminal prosecutions and when it is used in internal affairs matters. Agencies should conduct studies evaluating the monetary impact of camera programs. The studies should include not only the cost of purchasing and maintaining equipment but also cost savingssuch as legal fees in defending lawsuits and complaints against officers.
  • Agencies should conduct periodic reviews to assess the efficiency of their body-worn camera programs.
  1. To protect privacy, videos should be deleted after the agreed upon lapse of a specified period. Policies should clearly state the length of time data is to be retained.
  • Non-evidentiary footage: The retention period of non-evidentiary footage should be measured in weeks, not years. Most existing policies retain such footage between 60-90 days.
  • Evidentiary footage: Videos which are part of an investigation should be maintained until the investigation and any ensuing litigation is concluded. In serious felony cases resulting in the conviction and sentence of a number of years or imposition of a death sentence, the footage should be retained indefinitely.

 

Data Access 

Most state open records laws exempt records from disclosure if they are part of an ongoing investigation. But most state records laws were written before the use of body cameras and may not take into consideration the novel privacy issues presented by their use. Such laws may need to be amended in jurisdictions where body cameras are used.

  1. When to disclose footage to the public:
  • Videos should be deleted after the conclusion of investigation/litigation to protect privacy interests.
  • Policies should be in compliance with state open records laws and specifically outline agency responsibility for complying with open records requests; where possible, policies should prescribe liberal disclosure.
  • Redaction should be used in disclosed recordings when feasible.
  • Recordings that are not redacted or not flagged should not be subject to public disclosure without the consent of the subject of the recording.
  1. Supervisor review:

Written policies should clearly state that supervisors must be allowed to review officer footage. Supervisors need to be able to investigate complaints against their officers or specific incidents in which officers are involved. They also need to review and identify videos for training purposes.

  1. Litigation-related access: In litigation involving an incident that is recorded, there should be mandatory disclosure of the recording to defendants and/or plaintiffs.

 

Training 

Before commencing use of body cameras training should be required for all law enforcement personnel who will wear cameras or will have access to video footage. Personnel must include supervisors and auditors. Training should address all practices included in the agency’s policy. These practices should include an overview of relevant state laws as well as department policies governing consent, evidence, privacy, public disclosure, procedures for operating equipment effectively, and scenario-based exercises that replicate situations officers may face in the field.

Summary Review

Body-worn cameras have significant implications for the public’s privacy rights, particularly when it comes to recording victim interviews, nudity, and other sensitive subjects and when recording inside people’s homes. Agencies must factor these privacy considerations into decisions about when to record, where and how long to store data, and how to respond to public requests for video footage.

In answering the question of when officers should be required to activate their cameras, the most common approach is requiring officers to record all calls for service and law enforcement-related encounters and activities. Officers should deactivate their cameras only after the event and/or with supervisor approval.

It is essential to clearly define what constitutes a law enforcement-related encounter or activity in the department’s written body-worn camera policy. It is recommended that departments provide officers with a list of specific activities that are to be included noting that the list may not be all inclusive. Many departments guide their officers that if they are in doubt, they should record.

To protect officer safety and acknowledge that recording may not be possible in every situation, it should clearly state in departmental policies that recording will not be required if it would be unsafe, impossible, or impractical.

Significant privacy concerns arise when interviewing crime victims, particularly in situations involving rape, abuse and other sensitive matters. Some agencies give officers discretion regarding the decision to record in these circumstances. In such cases, officers should consider the evidentiary value of recording and the willingness of the victim to speak on camera. Some agencies go a step further and require officers to obtain the victim’s consent prior to recording the interview.

To promote officer accountability, most policies require officers to document, on camera or in writing, the reasons why the officer deactivated the camera in situations that are otherwise required to be recorded.

In one-party consent states, officers are not legally required to notify subjects when officers are recording. However, some agencies have found that announcing the camera is running promotes better behavioral interactions on everyone’s part and defuses potentially confrontational encounters.

When making decisions about where to store body-worn camera footage, how long to keep it, and how it should be disclosed to the public, it is advisable for agencies to consult with departmental legal counsel and prosecutors.

Regardless of the chosen method for storing recorded data, agencies should take all possible steps to protect the integrity and security of the data. This includes explicitly stating who has access to the data and under what circumstances, creating an audit system for monitoring access, ensuring there is a reliable back-up system, specifying how data will be downloaded from the camera, and protections against data tampering prior to downloading.

It is important that videos be properly categorized according to the type of event contained in the footage. How the videos are categorized will determine how long they are retained, who has access, and whether they can be disclosed to the public.

To help protect privacy rights, it is generally preferable to set shorter retention times for non-evidentiary data. The most common retention time for these videos is between 60 and 90 days.

When setting retention times, agencies should consider privacy concerns, the scope of the state’s public disclosure laws, the amount of time the public needs to file complaints, and data storage capacity and costs.

Evidentiary footage is generally exempt from public disclosure while it is part of an ongoing investigation or court proceeding. Deleting this video after it serves its evidentiary purpose can reduce the quantity of video stored and protect it from unauthorized access or release. It is important to always check whether deletion is following laws governing evidence retention.

Informing the public about how long video will be retained can help promote agency transparency and accountability. Some agencies have found it useful to post retention times on the department’s website.

It is important for the agency to communicate its public disclosure policy to the community when the body-worn camera program is deployed to develop public understanding of the technology and the reasons for adopting it.

Engaging the community prior to implementing a camera program can help secure support for the program and increase the perceived legitimacy of the program in the community.

Agencies have found it useful to communicate with the public, local policymakers, and other stakeholders about what the cameras will be used for and how the cameras will affect them.

Social media is an effective way to facilitate public engagement.

Transparency about the agency’s camera policies and practices, both prior to and after implementation, can help increase public acceptance and hold agencies accountable. Examples of transparency include posting policies on the department website and publicly releasing video recordings of controversial incidents.

Requiring officers to record calls for service and law enforcement-related activities—rather than every encounter with the public—can ensure officers are not compelled to record the types of casual conversations that are central to building informal relationships within the community.

In cases in which persons are unwilling, if they are being recorded, to share information about a crime, it is a valuable policy to give officers discretion to deactivate their cameras or to position the camera to record only audio. Officers should consider whether obtaining the information outweighs the potential evidentiary value of capturing the statement on video.

Recording the events at a live crime scene can help officers capture spontaneous statements and impressions that may be useful in the later investigation or prosecution.

Requiring officers to document, on camera or in writing, the reasons why they deactivated a camera in situations in which they are required to record promotes officer accountability.

With more and more police departments adopting body-worn cameras, courts, arbitrators, and civilian review boards have begun to expect not only that departments will use cameras but also that officers will have footage of everything that happens while they are on duty. If this footage does not exist, even for entirely legitimate reasons, it may impact court or administrative proceedings and create questions about an officer’s credibility. Agencies must take steps to set expectations and guidelines when first adopting body-worn cameras liaising withall the parties with whom law enforcement will interact so that together realistic expectations and agency policies about activating cameras can be set which satisfies all parties.

Educating oversight bodies about the realities of using cameras can help them to understand operational challenges and why there may be situations in which officers are unable to record. This can include demonstrations on how the cameras operate.

Requiring an officer to articulate, on camera or in writing, the reason for not recording an event can help address questions about missing footage.

Rigorous, ongoing officer training on body-worn camera policies and protocols is critical for improving camera usage. Situational training in which officers participate in exercises using mock cameras can be particularly useful in helping officers to understand how to operate cameras in the field.

Many police executives believe that allowing officers to review body-worn camera footage prior to making a statement about an incident in which they were involved provides the best evidence of what occurred.

 

Costs

The financial and administrative costs associated with body-worn camera programs include costs for equipment, storing and managing recorded data, as well as responding to public requests for disclosure.

It is useful to compare the costs of the camera program with the financial benefits (e.g., fewer lawsuits and unwarranted complaints against officers, as well as more efficient evidence collection).

Setting shorter retention times for non-evidentiary videos can reduce the costs of data storage more manageable.

Videos requiring long-term storage (e.g., those involving serious offenses) can be copied to a disc, attached to the case file, and deleted from the internal server or online cloud. This frees up expensive storage space for videos that are part of an ongoing investigation or that have shorter retention times.

Linking recorded data to the agency’s records management system or internal affairs case management systems, using electronic tablets, which officers can use in the field, can ease the administrative burden of tagging and categorizing videos.

 

 

David Wasserstrom

Executive Director

Sentinel Camera Systems LLC

Direct Line: 215-6235-3770

Email: david@sentinelcamerasystems.com

Web: www.sentinelcamerasystems.com