Police Use/Non-Use of Body Worn Cameras Expert Article

The use/non-use of Body Worn Cameras (BWCs) by law enforcement may be called into question in a broad range of civil and criminal disputes. In this article, police practices expert Mark Meredith provides an introduction to BWC systems while focusing more closely on the specific scenarios where BWCs should be shut off, and the circumstances under which footage can be edited. This article also takes a brief look at how body worn cameras are operated, legal variables posed with the use of these devices, and potential limitations.

Police Use/non-Use of Body Worn Cameras - Expert Article

According to the 2018 National Institute of Justice (NIJ) article, Research on Body-Worn Cameras and Law Enforcement, nearly half of all law enforcement agencies in the United States use body-worn cameras, or BWCs. The study also reported that approximately 80% of large law enforcement agencies now require body-worn cameras. With an increase of federal grant funding, more police departments have been able to implement this technology to provide transparency over police practices while also improving them.

Police departments nationwide contract with private companies to purchase body-worn cameras for recording daily interactions with the public. These small devices can capture corroborating or exculpatory evidence that could be critical to a complaint, investigation, or legal case. In turn, police departments are held to navigate federal and state laws when implementing BWC policy and procedures to ensure officers are recording, storing, and accessing footage according to best practices.

Cameras and Recordings

Officers with BWCs start the day with a systematic routine to ensure they are able to record calls for service. Prior to the start of shift, the officer removes their dedicated camera from the docking station to ensure it is fully charged and in good working order. At the end of the shift, the officer will return their BWC to the docking system. The docking system is responsible for charging BWCs, uploading videos into the storage system, and downloading any software updates. Police officers are also tasked with properly documenting their BWC video footage as an inventory of digital evidence.

Accessed through computer software, the video is labeled, uploaded, and stored, into a subscription-based cloud service. Labeling of the videos can include user’s name or identification number, the incident type, report case number, citation number, or a computer-generated incident number. In addition, the video may require an added description of the type of incident the video depicts, such as; use of force, felony arrest, misdemeanor arrest, citizen complaint, etc. The length of time for the video to be stored will depend upon an officer’s labeling of the video, police department policy, and state laws. In general, this could mean 90 days to indefinitely.

Who has access to body worn camera footage?

Access to video is typically different depending on who is seeking the recording. Officers are able to instantly view their video footage by using an application on their smartphone or other such device. Once the videos are properly labeled and stored, they can also be viewed by; supervisors, investigators, internal affairs, defense attorneys, and prosecuting attorneys. When viewing BWC video, footage will contain a buffering period, which is a period of no sound and only video.

Buffering will show video from 30 seconds to two minutes prior to the users activation of their BWC. The buffering lengths depend on which type of BWC system is being utilized, along with agency administrative settings. So throughout the users shift, the BWC programing is to purge video to save storage room for only the user activated BWC videos. Axon Enterprise, a manufacturer of BWCs, describes buffering in their user manual in this way:

When recording (event) mode is activated, the buffered video capture directly before the event is saved and attached to the event in permanent memory. This feature is intended to capture the video of an incident just before a recording begins.

When can or should an officer turn off his or her body-worn camera?

Generally, BWCs are manually activated and, in most cases, you can see the law enforcement officer’s hand activating their camera. However, these decisions will be based on department policy and procedure, state law, and federal law. In general terms, most law enforcement agencies’ policies and procedures are very broad as to when a BWC needs to be turned on or off. Most law enforcement agencies state in their BWC policies that a user must turn on their camera for any enforcement actions. An enforcement action would include incidents such:

• A traffic or pedestrian stop
• All calls for service
• Emergency situations

Specific language from the 2014 International Association Chiefs of Police (IACP) entitled Body Worn Camera Model Policy states:

Officers shall activate the BWC to record all contacts with citizens in the performance of official duties. 2. Whenever possible, officers should inform individuals that they are being recorded. In locations where individuals have a reasonable expectation of privacy, such as a residence, they may decline to be recorded unless the recording is being made in pursuant to an arrest or search of the residence or the individuals. The BWC shall remain activated until the event is completed in order to ensure the integrity of the recording unless the contact moves into an area restricted by this policy. 3. If an officer fails to activate the BWC, fails to record the entire contact, or interrupts the recording, the officer shall document why a recording was not made, was interrupted, or was terminated. 4. Civilians shall not be allowed to review the recordings at the scene.

This language is inclusive of a vast majority of issues and calls that law enforcement are required to service. Nonetheless, instances where the BWC may be turned off includes:

1. In the event the body-worn camera malfunctions. While this is rare, it can and has happened. To determine if the BWC was turned off by the user or the device malfunctioned, the BWC manufacturer can conduct a forensic audit on the device to make the final determination.
2. Officer safety. Most policies allow the user to not activate their cameras if doing so endangers his or her life. This type of incident should be few and far between, as BWC users should activate their camera prior to arriving at an incident. An example of this type of situation would be if a police officer was ambushed.
3. When interviewing sexual assault victims (both adult and juvenile). The primary reason being the state privacy laws that are designed to protect these types of victims.
4. BWCs are not commonly activated in hospitals. This is based on the federal Health Insurance Portability and Accountability Act, or more commonly known as HIPAA. Since cameras may inadvertently capture privileged communications between doctors and their patients, recording in hospitals is strongly discouraged. Only in the event of urgent circumstances, or dying declarations, is recording allowed in this setting.
5. When talking to a confidential informant. Identities of these individuals are protected as it can place the informant’s life in danger.

Private discussions between officers, regarding the case, do not need to be recorded. Officers will turn off their BWC to speak with one another, or their supervisor, or to discuss aspects of a case. Officer conversations are often filled with preliminary unsubstantiated information in trying to piece together what occurred in the course of initial investigation.

In addition to private conversations between officers, an officer may turn off his or her camera during a walkthrough. A walkthrough is conducted by the senior officer to show detectives the entirety of the crime scene and potential evidence left at the scene. This practice is generally reserved for the most serious crimes, such as homicide, to brief investigators as to all known information regarding the crime. These last two aspects of BWC use have been the most contentious as it has been argued these practices may lead to conspiracy or loss of exculpatory evidence.

Policy and procedures for BWCs are governed by state privacy laws. For example, there is no expectation of privacy when being recorded while speaking to a police officer in California, Georgia, Illinois, Nevada, New Hampshire, Pennsylvania, and Oregon. Therefore, conversations recorded by BWC can be introduced as evidence, in a court of law. While most states have similar privacy laws, there are several differences. The National Conference of State Legislatures (NCSL) is a compilation of bipartisan state leadership that has assembled a thorough list of individual state laws and policy issues and can viewed here.

Governing laws cover the following issues:

1. Requirement to Use Body Cameras
2. Body Camera Funding
3. Open Records Laws
4. Eavesdropping Laws
5. Written Policy Required
6. Body Camera Studies
7. Body Camera Laws

Potential Limitations of Bwcs

Though they can be excellent sources of information, BWCs have other limitations. Recorded footage does not tell the whole story. Cameras cannot capture the smells that surround a scene. It is also unable to show the officer’s thought process, first-hand knowledge, or prior experiences. These devices have a limited scope of view, which is less than the movement of the human head. Additionally, due to technology limitations and privacy laws, body-worn cameras cannot record an entire shift.

Redactions

Videos can be redacted, but only for specific reasons. Known reasons why redactions can occur include situations where an officer accidentally:

1. Records while in a hospital.
2. Records the statement (audio) or face (video) of a juvenile.
3. Records the face or statement of a sexual assault victim.
4. Forgets to turn off the camera while using the restroom.

Neither individual officers, nor their supervisors, have access to the redaction function. It can only be done by select administrators of the BWC programs and generally, with approval of the District Attorney’s Office. The District Attorney’s Office can also redact video in accordance to one of the above-mentioned reasons. If a body-worn camera video is redacted, it should be documented with the reasons as to why the redaction was performed. The original video should also be held.

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Featured Expert

Mark Meredith

Police Practices & Premises Security Expert

Mark Meredith has a diverse background in law enforcement and security spanning more than 25 years. Throughout his career, Mark has worked with police agencies, the Department of Homeland… read more.