By Gary Schons, Best Best & Krieger.
Since the shooting of Michael Brown in Ferguson, Miss., the issue of body-worn cameras for officers on patrol has grabbed national headlines. Sources as diverse as the ACLU and the Police Executive Research Forum are saying “why not?” and calling the deployment of BWCs a “win-win” for police and citizens, helping to protect citizens against police misconduct and the police against false accusations of abuse.
There have been calls at the federal level to condition federal assistance to state and local law enforcement, including DOD equipment transfers (another issue which has emerged from Ferguson), to a requirement that all patrol officers wear cameras.
But despite the belief that the cameras will enhance police transparency, legitimacy and accountability — and protect citizens and officers alike from false accusations — there are still significant privacy and policy concerns. For example, BWC technology will cumulatively acquire and store huge amounts of data. Police acquisition of such “mosaic” data by way of license plate readers, public surveillance cameras, dash-mounted cams, surveillance drones, GPS devices, cellphone location information and even the routine search of cellphones incident to arrest, have provoked changes in the law, court challenges from civil liberty interests, and legislation to curb the accumulation of such vast amounts of data which cumulatively intrude on privacy. These concerns bear equally upon BWC acquired data.
There are also concerns for officer privacy, both on duty and when on “Code 7,” and how BWCs will affect the officer’s “workplace,” internal affairs inquiries and discipline and officer safety in carrying and deploying the technology.
Deployment of BWCs pose significant challenges for law enforcement agencies. Quite apart from the resource and logistic commitment for the equipment and storage and retrieval of the data, there are issues of policy development, training and administration of the technology and the data. Prosecution offices and the courts will be required to address issues going to access to and discovery of BWC data in criminal proceedings — issues which are just now emerging for prosecutors and the judiciary.
While a federal mandate is questionable and unlikely, it appears that BWCs are going to become de rigeur for officers on patrol across the nation in the coming years. Those who have studied the issue caution, however, that prior to deployment of BWCs, law enforcement agencies must develop and promulgate clear, detailed and transparent policies governing the equipment, training, use, storage, retention, release and disclosure, redaction and deletion and audit of BWCs and the data produced.
Addressing many of the issues and concerns engendered by the deployment of BWCs is a matter of policy choices, administrative and management decision making, logistics and costs constraints and best practices. The technology is relatively new and model guidelines for implementation are in the developmental stages by law enforcement and justice agencies, as is the recognition of best practices. This discussion is meant to survey a number of the issues decision makers will need to address and test as use of this technology moves forward and experience is gained.
Deployment & Use in the Field
Equipment and Training: A department deploying BWC technology willbe required to adopt procedures for acquiring and servicing equipment, as well as data storage and management. Additionally, all officers deploying the technology and their command will be required to be trained in its use, as well as legal and practical implications, evidence integrity, health and safety concerns and professional standards.
Which Officers Should Deploy BWCs: Because the primary rational for the use of BWCs is to record officer-citizen encounters on the street, deployment should be limited to uniformed patrol officers and uniformed special assignment officers (such as SWAT or crowd control) only when encounters with citizens or suspects is anticipated. Deployment considerations should comprehend that BWCs should not be used for surveillance or criminal intelligence gathering because of the privacy concerns raised by such uses. Detectives and investigators who regularly deal with victims, witnesses and informants, or who are often in homes and other private places should likewise not use BWCs because of the privacy, confidentiality and security concerns raised in such environments and under such circumstances.
How Should BWCs Be Used in the Field: Again, purpose should drive decisions regarding in-the-field use of BWCs. Continuous operation is not feasible, desirable or necessary, as it would produce mountains of unneeded and potentially intrusive and collateral data which would have to be stored and managed.
Most departments that have employed the technology charge officers with activating the BWC when contact is being made with a party while on patrol in the course of the officer’s duties, thus serving the purpose behind the use of BWCs. Departments have experimented with both mandatory activation whenever contact is initiated and allowing officer discretion to activate when the officer deems it appropriate. However, mandatory activation has emerged as the “best practice,” as it ensures uniform and consistent coverage and eliminates situations where the officer’s judgment or intent could be second guessed for not recording. It ensures that officers are recording “everything they are supposed to.” Mandatory activation additionally contributes to creating a “base line” of operation for measuring the effects of the technology within each jurisdiction. Mandatory activation enhances transparency and accountability and best serves the twin goals of protecting the public from officer misconduct and officers from false claims of misconduct.
Notice and Limits on Use in the Field: Some have suggested that giving notice to citizens that a BWC has been activated , either orally or by printed notice on the officer’s uniform, is a “best practice.” While not required by law and not consistently possible given the exigencies of the field, giving notice does appear to serve the goals of affecting citizen behavior toward the officer, deterring crime — particularly interference with and attacks on officers and flight —and apprizing the citizen that the encounter is being recorded so as to mitigate privacy or security concerns. If a citizen objects to being recorded, the officer can exercise his or her judgment to terminate the recording for the duration of the contact if deemed unnecessary and would foster cooperation and good relations.
When an officer enters a home, business, office or other private place, absent exigent circumstances, best practices would dictate giving notice because of heightened privacy concerns, unless doing so would interfere with or compromise the officer’s task in entering the venue. If an occupant, particularly a homeowner, objects to recording in the venue, the officer should afford particular consideration given the privacy interests at stake. This will present a difficult decision in responding to domestic violence situations where the officer is in or at a home and potentially dealing with victims, perpetrators and witnesses under highly stressful circumstances where transparency and accountability, officer and citizen protection and safety, and evidence gathering are each important and countervailing considerations. Each department might consider highly tailored and specific regulations for use of BWCs in such environments.
Likewise, BWCs should not commonly be used when encounters are with crime victims or witnesses as recording would serve little purpose other than to create a discoverable record under stressful circumstances when the victim or witness might be distraught. Further, the purpose of BWCs is not to record victim or witness statements or to serve as a substitute for proven forensic evidence gathering.
Tamper-Proof Data: There appears to be a strong consensus that data generated by BWCs — the recordings — should not be susceptible to being edited or deleted by officers in the field, “edited on the fly,” or at the station. That is, all BWC-generated data should flow to the department’s IT management system, which would have exclusive control of the data once it is generated in the field. This would put the data beyond manipulation by officers in the field or their immediate command.
Use of BWC Data in Report Writing and Testifying: Questions have been raised whether officers should have access to BWC data to assist in preparing incident reports and preparing for testifying in court, as that data provides a highly reliable source documenting the event subject to the report or testimony. Because incident report writing and testifying is not a memory contest, but an effort to memorialize and relate activity in the field as accurately as possible for internal and prosecution use, there does not appear to be any reason why officers should not have access to tamper-proof BWC-generated data to assist in report preparation, or to later prepare for live testimony in court.
Data Storage, Accountability, Flagging and Retention, Access, Use, Disclosure and Release, Redaction and Deletion: The biggest challenges to deploying BWC technology arise after the data is generated in the field, namely the administration of the data by the law enforcement agency once it is generated. Just as with issues concerning deployment and use of BWC technology in the field, the post-generation handling of BWC data will require the promulgation and implementation of carefully crafted, transparent and publicly reviewed and accepted policies and procedures.
Law enforcement agencies will be required to adopt and implement retention schedules for BWC data. Data that does not relate to potential criminal, civil or administrative proceedings should have a short shelf-life, measured in weeks. Data which relates to potential criminal, civil or administrative matters, including use-of-force, detention or arrest, or the commission or evidence relating to a crime, should be flagged and retained for periods consistent with the needs of the subject processes.
Each department must adopt and implement procedures to protect the integrity of the data, ensure “chain of custody” and afford the ability to audit.
Finally, agencies will be required to adopt and implement policy and procedure governing appropriate use, access, release and disclosure, redaction and destruction of BWC data. Particular consideration will have be given to use and discovery in criminal proceedings, and access by outside agencies and the press and public.
About Gary Schons
As head of Best Best & Krieger’s Public Policy and Ethics Compliance practice, Gary W. Schons counsels public agencies, officials and private businesses who wish to promote public confidence in their decision-making processes by assuring that official conduct is above reproach. Prior to joining BBK Law, Gary served as a deputy district attorney and senior advisor for Law & Policy in the San Diego County District Attorney’s Office. In this role, he advised the District Attorney and her executive staff on legal, public integrity, legislative and policy issues and provided legal assistance to all 300 deputy district attorneys in the office. Gary is an active member of the California District Attorneys Association, lecturing and authoring articles for the association. He is also active in the San Diego County Bar Association, where he has served on the Judicial Elections Evaluation Committee. He can be reached by email, email@example.com or by phone, (619) 525-1348.