This office represents a former Albuquerque police officer whose employment was unlawfully terminated last month for allegedly simply not activating his body worn camera. He was not fired for harming a citizen, for failing in his duties in court, for poor performance or for causing anybody financial loss.
He was fired by a department whose reputation is once again confirmed as being such a train-wreck that it is now subject to one of the most draconian Department of Justice consent decrees ever drafted.
For police officers, body-worn cameras are here to stay. Since the early 1990s when a bystander videotaped officers’ use of force upon Rodney King, this technology has marched steadily inward upon our nation’s law enforcement officers.
From bystanders with cell-phone cameras, to patrol car dash-cams, to now lapel-cams, officers no longer are just the targets of videography, but are the recorders themselves.
And while the cameras have a clearly beneficial utility for officers and citizens alike, sadly, once again we are misplacing our hope in technology to solve a problem resulting from an erosion of trust between citizens and the police.
However, like all emerging technologies, the implementation of the technology has failed to keep pace with the implications of that very technology.
Procedures covering officers’ use of the cameras span the spectrum from absolute officer discretion to every-person/all the time, or EPAT, recording policies. Given the current national discussion addressing police use of force, the public’s drift favors EPAT policies, but such policy, while tempting, is ultimately nearsighted, misguided and will result in more confusion.
EPAT policies, which for example the Albuquerque Police Department requires by special order, are prohibited by federal and state laws for a powerful reason – privacy. Federal and state constitutions provide privacy protections which must be respected by officers as they go into the intimate confines of a person’s home.
Persons undergoing medical care are protected by HIPPA. Minors and children are afforded greater privacy protection, as are victims of sex crimes. Some state’s statutes prohibit any surreptitious recording of another party, even by a police officer. Then there is the unintended chilling effect upon citizens who do not want to be recorded but desire to speak with their local officer about neighborhood concerns.
Then of course there’s the matter of whether the hardware can satisfy such an EPAT policy even if there were not statutory restrictions.
Not one camera platform seems to provide a battery which can operate for an officer’s entire 8- or 10-hour shift, nor does any system provide storage capacity to retain the recorded hours of footage. Additionally there’s the download time an officer must spend as the data is uploaded which at best is on a 4:1 ratio and of course procedures and infrastructure must be in place ensuring a proper chain of custody and preservation of the recording.
Even upon finding a middle ground between pure discretion and EPAT, the heavy weight given to the recordings remains a huge point of contention. As Judge Henry Friendly of the Second Circuit of the United States Court of Appeals astutely remarked in Johnson v. Glick in 1973, “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.”
And as the famous video experiments by professors Christopher Chabris and Daniel Simons confirm, just because a video of an incident exists, there is a high likelihood that observers will still misperceive what is seen.
Sadly, as this debate continues, officers across this country will be unjustly disciplined and deprived of their own rights as department leaders figure out what is in fact an appropriate and realistic policy but lay blame of their own failures upon their front-line officers.
Such a policy must balance the realities of what is allowed by law, makes reasonable sense and be effective with the current state of the technology. To be sure, there indeed may be circumstances which absolutely require EPAT, such as when an officer must draw their duty weapon, but even then why burden the officer with another task of turning the camera on when the technology could automatically activate upon the deholstering of a weapon?
Body worn cameras pose many excellent advantages for officers and citizens alike, but without clearly thought out and consistent policies covering the use of the cameras, those advantages will rarely be realized as a consequence of those poor policies.