The Use of Body Cameras by Law Enforcement

Episode Notes

Transcript

Lawyer 2 Lawyer: Law News and Legal Topics

The Use of Body Cameras by Law Enforcement

09/30/2016

Dr. Tod Burke: But the benefits where it’s something you had mentioned earlier is accountability and transparency, those are the two main things that are really out there and a lot of discussion on this.

Also, it seems that when a police officer is wearing body cameras, the police officer behaves better and that in turn helps with police-community relations and also there seems to be some findings that there is a reduction in citizen complaints because people say, hey, I am not going to make a complaint against a police officer when I know it’s being recorded.

Eugene O’Donnell: Well, they are inevitable but they are terrible, and it’s going to get worse on every level, it’s just when you ask of creating a conversation about police in American system about catching the cops in wrongdoing, the biggest crisis we have in America right now, certainly with northern Americans the cops are doing the rightdoing and we also have an huge recruiting crisis, and this is going to actually exacerbate that dramatically.

Police offers are not constrained with other people and it’s been a false narrative that got this started. If the police are equal to the street, that’s a terrible thing. Not only do we have that reality now we actually have the cops being 01:19 we have people encountering them and mocking them and 01:26 them.

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J. Craig Williams: Welcome to the award-winning podcast, ‘Lawyer 2 Lawyer’ with J. Craig Williams and Robert Ambrogi bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: And I am Craig Williams coming to you from Southern California. I write a blog named “May it Please the Court.

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Bob Ambrogi: Well, with the string of recent incidents involving shootings of civilians by police, there is a lot of debate going on around the country about whether police officers should be suited with body cameras to capture their pursuits and interaction with civilians.

J. Craig Williams: And part of that debate includes whether or not body camera footage is a matter of public record or as several states have already done, eliminated it from being a matter of public record. Some people believe that body cameras will improve police and civilian behavior while others believe the body cameras will hinder a police officer’s privacy, health and safety.

Bob Ambrogi: So today on ‘Lawyer 2 Lawyer’ we are going to talk about the pros and cons of body cameras being worn by law enforcement officers. We are going to take a look at some of the recent events that have given rise to this conversation to discuss transparency and accountability and the impact body cameras could have on policing.

J. Craig Williams: Bob, to do that we have two great guests with us today. Our first guest is Professor Eugene O’Donnell from the John Jay College of Criminal Justice. Professor O’Donnell began his career as an NYPD officer from the New York Police Department, receiving 14 department awards for outstanding police service working in Brooklyn. After serving as a summer associate in the US Attorney’s office for the Eastern District of New York, while in law school, he went on to become a prosecutor in the Queens District Attorney’s Office and the Brooklyn District Attorney’s Office where he investigated and prosecuted hundreds of cases. He is a nationally recognized expert on policing issues including the use of force and has been quoted hundreds of media stories.

Welcome to the show Professor Eugene O’Donnell.

Eugene O’Donnell: Good to be with you.

Bob Ambrogi: Also joining us today is Dr. Tod Burke. Dr. Burke is Professor in the Department of Criminal Justice at Radford University in Radford, Virginia. Former Maryland police officer, Dr. Burke’s research interests include school, campus violence, domestic violence, serial and mass murder and issues in policing and forensic science. Dr. Burke is also a co-author of an introductory criminal justice text entitled ‘Foundations of Criminal Justice, Second Edition’.

Welcome to ‘Lawyer to Lawyer’ Dr. Tod Burke.

Dr. Tod Burke: My pleasure to be here!

J. Craig Williams: Well, Dr. Burke, could you give us a little bit of a history on body cameras and when they came into use and what the scope of the use is?

(00:04:59)

Dr. Tod Burke: Well, I am not sure so much about the historical perspective, but it is relatively new and it is filled with some great benefits and some controversies as well.

Bob Ambrogi: Well, let’s start with the benefits, Tod Burke. As I understand it you are in favor of police officers wearing body cameras, correct me if I am wrong. What are the arguments in favor of it?

Dr. Tod Burke: Well, I am a big advocate for it and when I was a police officer, I am not sure about Eugene, but we did not have body cameras, and if I were a police officer today I would actually want one, but the benefits where it’s something you had mentioned earlier is accountability and transparency, those are the two main things that are really out there and a lot of discussion on this.

Also, it seems that when a police officer is wearing body cameras, the police officer behaves better and that in turn helps with police-community relations and also there seems to be some findings that there is a reduction in citizen complaints because people say, hey, I am not going to make a complaint against a police officer when I know it’s being recorded.

J. Craig Williams: What do you think of the states, the various parts of the country that has started to ban the use of police camera footage as a public record? What’s the purpose in having it?

Dr. Tod Burke: Yeah, I am not a fan of banning them; I do understand why some police agencies are hesitant to use them though.

J. Craig Williams: Do you think they will be seeing more use of body cameras on citizens?

Dr. Tod Burke: Well, I don’t know about body cameras on citizens, because citizens already have cameras. We are a video vigilante society, everyone seems to have a cellphone, with that cellphone comes cameras and comes videos. The danger of that of course is that we don’t know the validity of the video itself. In other words, a person could be taking video shots let’s say of the police citizen encounter and sometimes they are narrating it and they are taking this and they are putting it on social networks and that becomes the narrative, but what we don’t know is if that has been edited or not.

Bob Ambrogi: Eugene O’Donnell, well, you’ve heard some of the arguments for body cameras what’s your position on whether police officer should wear body cameras?

Eugene O’Donnell: Well, they are inevitable but they are terrible, and it’s going to get worse on every level, its just when you ask of creating a conversation about police in American system about catching the cops in wrongdoing, the biggest crisis we have in America right now, certainly with northern Americans the cops are doing the rightdoing and we also have an huge recruiting crisis, and this is going to actually exacerbate that dramatically.

Police offers are not constrained with other people and it’s been a false narrative that got this started. If the police are equal to the street, that’s a terrible thing. Not only do we have that reality now we actually have the cops being 08:06, we have people encountering them and mocking them and 08:12 them. And if we see the by part for this places like northern America like Chicago, we have a police department now in name only where the cops get there when they get there because the reality is, and I know this uniquely as a prosecutor, 08:27 police officer, we are asking police officers as our surrogates to use force to go after people, to essentially look for trouble in our name, that’s what we ask them to do, and when they do that, they are exposed.

They are exposed potentially to criminal prosecution anytime they use force. So you would have to simply be very slow-witted to realize or not to realize that when you approach somebody from the get-go, somebody who is left black on the radio keeping up the whole neighborhood at night, but that could end badly for you. That could end up with a video that’s detrimental. We have cable producers standing by for the video of the day, or the video of the week and if that happens to be you, you could end up being fired, criminalized, demonized, even if the facts eventually role in and show that you weren’t acting along with, you have a huge issue of this moment with this profession, a reputable harm has been caused to it and 09:29 has pushed this topic, and this is never going to be a topic in my mind the community would ever embrace.

There’s also privacy issues that go beyond police issues, basically in the name of building trust you are inserting distrust, and honestly it’s also trying to call this out. There are people who say they want to create trust in the police but actually there are people behind this who don’t, they don’t believe in the police, they are delegitimizing the police, they believe all police in here is racist, and Jim Crow, and we need to say that is not an intriguing perspective for this country, or if it is, you are going to have to deal with that.

(00:10:08)

Bob Ambrogi: But if the argument is that — if I hear you saying that you want to prevent — that people are just trying to catch police in wrongdoing isn’t the argument that if there is no wrongdoing then they are not going to get caught, I mean, if police are doing their jobs and doing them properly, why is this scene is something that’s going to sort of catch them in the act of something?

J. Craig Williams: Because it’s basically the reverse of the argument that the police use in wanting to search your car that if you are not have anything to hide then what are you worried about.

Bob Ambrogi: Well, but the difference is that the police are public servants and citizens and cars are not public servants, I mean, the police are serving a public interest, aren’t they?

J. Craig Williams: I think they are paid by taxes.

Eugene O’Donnell: Police are surrogates, even at personal issues the police are choosing to do. This is public duty they are choosing to do. It is a very fragile system that has been 10:51 to undermine the criminal justice system for 12 years now and law professors have been behind it and the notion that every single person has been convicted is probably innocent. It is a widespread right now and anybody who is a lawyer knows that it’s actually a very fragile system. We don’t have proof beyond all that in our system, we have proof beyond a reasonable doubt in our system.

We don’t look inside a jury to see how a jury deliberates. There are a lot of parts of the system that are fragile. Frankly and bluntly most people do not progress the expertise to view police videotapes, it’s like watching cricket and not knowing what cricket is. You can’t have an opinion if you don’t know the way the police operates.

Unfortunately in our society because we have violence that is incredible and you just have to look by the way 11:41 in the last couple of weeks to see a town, small Saint Cloud in Minnesota, Washington State, a level of violence, we have the level of gun violence, we have the unpredictability of police interactions with citizens, the fact that these things are not scripted. This whole conversation again has been built on a big “why” the police are equal, it’s also been built completely without giving people an assessment of what the law is. The law stables the police broadly because the police do our work for us.

Bob Ambrogi: What position then does that place the police in?

Eugene O’Donnell: That’s criminalizing the police, this is all about ultimately in a lot of ways is not the way to do – it’s exactly the opposite of creating good policing and trusting a community and effective policing. This is the very worst of all worlds.

J. Craig Williams: When you say that police are not equal to the citizenry what position do they occupy? Are they a servant or are they superior?

Eugene O’Donnell: Any appellate decision that has to do with a lot of issues the police are placed into a position on our behalf, they go into arms way, there’s at least one federal appellate decision that says bluntly, we send them out to fight with people, that’s what we do among other things. Obviously they are serving so they are obviously conflict avoiders and conflict negotiators, but in city like Chicago where to go to the city has been hollowed out by climbing disorder. The African-American community has decamped out of that city. I guarantee you on the ground if you talk to people, cameras would never ever be their issue. This is the industry that’s made cameras, it is sheets of police in some cases that’s offering up as a fantasia but the long-term consequences of cameras can not be good.

Again, it doesn’t make them what’s inevitable but it can’t be good. If a people also pulls over a car and asks somebody for identification that is not a request other than that. That’s our system. You don’t have an option to say no. Why aren’t lawmakers stepping forward in making that category a bit clear? Why are they trying to blame — they’re essentially leaving the cops holding the bag here, and it’s been disingenuous and it’s been damaging.

J. Craig Williams: Dr. Burke, what kind of privacy rights do policemen have?

Dr. Tod Burke: Well, I believe that police officers do have rights, and I think it’s the due process rights, and I think that’s one of the difficulties with the body cameras is that when the body camera is used and it happens to be released too soon to the public or to the media what ends up happening is not only is the citizen at jeopardy of not getting a fair trial or a fair hearing the police officer suffers as well, and I think one of the things that – and I still, I am an advocate of the body cameras but the privacy issues tend to be more of a sensitive nature, for example, as a police officer we are responding to many sensitive issues including domestic violence, child abuse cases, homicides, incidents dealing with juveniles. Well, if you have a body camera on you are also recording them, you are recording the victims, you are recording children, and that also violates privacy rights.

(00:15:06)

And it could prevent people from giving information to the police officers, and what I mean by that, are like informants or witnesses, when they know they’re being recorded, they may be less likely to give information. So there are some privacy concerns.

One thing that I think is important for the listeners to know is that the body camera and dash cams and things such as that but they are an instrument for the police. They are tools — an investigative tool, they are not the panacea, and I agree with Eugene on that, but what I think is important is, it doesn’t always tell the full story.

For example, we’ve all watched sporting event, I’ll use football as an example. We want to find out if somebody has made a touchdown, we want to see if both feet were in bounds, were they bobbling the ball, and we will watch the video from home or wherever, and we watch it in slow motion, we see it from different angles and yet we still can’t make the call, and we expect the police officer in a split second to make a decision. And I think what’s important about this is the camera only tells you so much, it doesn’t tell you everything.

Bob Ambrogi: I think we have to take a short break. Please stay with us, we’re going to be back in just a few moments after these words from our sponsors.

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Bob Ambrogi: Welcome back to ‘Lawyer 2 Lawyer’. This is Bob Ambrogi and with us today is Professor Eugene O’Donnell from the John Jay College of Criminal Justice and Dr. Tod Burke; Professor in the Department of Criminal Justice at Radford, University.

In listening to the comments for both of you, I am wondering if the issue isn’t somewhat one of whether these videos should be public or not; as opposed to whether they should be worn at all. I mean I understand that body camera video does not tell the whole story but certainly it adds to the evidence of what happened in an incident. And it sounds from what Eugene was saying earlier that he is concerned that these videos are going to be viewed by people who don’t understand police procedures and police tactics, but doesn’t that just go to the question of whether they should be public or not? I mean, if the video is available internally within a police department or in the course of a prosecution or criminal investigation or something like that, then people who do understand police procedures will be able to review these videos and analyze them in the context of that knowledge. So really isn’t this just a question of whether they should be public or not?

Eugene O’Donnell: Well, again, I am trying to leave it to a very important point, a fairly crucial point, I used some sports videos, a video can actually be irrelevant; that’s how misunderstood this topic is.

An objective capturing of an angle of a video might have absolutely nothing to do with what the cops acted upon. And that’s why you have to save the law and the law is about the reasonableness of the cops’ actions and that is determined by asking the cop, what did you see, what did you believe, what are your perceptions and anybody who is doing civilian or police person, being in a traumatic, quickly, evolving, deteriorating situation there can be an extraordinary difference between what you perceive, you see are able to articulate and what’s objectively captured on a video.

And again, the big why of the video is the knowledge of the ending. The cops don’t have the knowledge of the ending and there’s also I think it’s sort of a classic belief that people act in accordance with some sort of preordained schedule that they’re predictable one minute or a little less predictable, well, that’s not really true. You can pull over a car and you can have somebody acting cooperative and go homicidal in a nanosecond.

And it does shut down with people 19:26 of an officer. We saw this scene how a police officer in 19:29, she was indicted essentially on the basis of a video test as I can tell and the narrative is, what possible reason could she have to shoot? We had a female police officer in Rhode Island some years back, she called over a car, the motorist walked back, told her 19:47 his hands.

This is the environment the police operated, and unfortunately some people think that’s hyperbole and of course she expect to be subject to abuse, there’s no issues there, but this camera conversation has become a 20:04.

(00:20:01)

It really has taken it so far away so that we need to be in this country and it’s reducing the police, who used to be a pretty effective and certainly highly respected organization. Obviously, there is a racial divide there. Take the police versus the lawyers, take the police versus politicians and their approval ratings are sky high.

Now you get it 20:26 and it’s been a campaign, it’s been an orchestrated campaign to create distrust, mistrust. This is not about a million hours of proprietary, this is about trying to find five minutes of gotcha, that’s what this is all about.

Bob Ambrogi: Well, I mean, it is an attempt to provide some objective evidence. I mean, to say that a police officer’s account of an incident should be the be-all and end-all of the account, would also discount some of the recent stories where in fact the police officers have on occasion misrepresented what happened and outright lied about what happened.

I don’t mean to paint any kind of a broad brush with that, I think that’s certainly the exception by a great amount, but that does happen and body cam footage is going to corroborate or not what was being said.

Eugene O’Donnell: The problem with the theory is that the narrative being sold in the country the police for no reason are killing people, that is completely inconsistent with reality. There may actually be cases where people did do that, but that is a very tiny number.

Why Laquan McDonald is still in Chicago? I don’t know why a police officer would shoot somebody but anybody who is going to prosecute and you have that some good reason generally to bring a case, and what is the reason that a police officer stranger, not knowing the individual, why would the officer shoot him?

Now, some might say because he cannot get away with it, but again of all of hundreds of millions of interactions each year, are we going to completely rewire the police service around a nation who is trying to find wrongdoing. So we do that, it’s 22:04 lives, I mean, some are clear on this, this is 22:06 lives in the City of Chicago. People are dying in the City of Chicago, and by the way 22:12 are responding slower, they are not getting out of their car, they are afraid to investigate, they are afraid to being an officer while shooting.

If the Chicago Police Department is catching all the people who are killing, then probably it will also involve shooting a lot of officers while shooting, they’d be unique.

J. Craig Williams: Well, that would argue –

Eugene O’Donnell: They can’t have that happen now.

J. Craig Williams: Your point argues in favor of having an independent body investigated officer-involved shooting, which doesn’t happen.

Eugene O’Donnell: Well, the prosecutors of course did not do their jobs in some of these instances, but again, trying to give an honest answer to how many Laquan McDonald cases you have, that’s a very important issue, but there has been an advocacy and it’s been a linear approach here that has taken, it’s completely away from trying to get to the bottom of reality, that’s my own point.

J. Craig Williams: Whatever happened to the doctrine of don’t fire until fired upon?

Eugene O’Donnell: Who came up with that? That’s not the law.

J. Craig Williams: No, it’s certainly not the law, but it was the way the police used to handle things.

Eugene O’Donnell: They could fire when they reasonably believe their lives or somebody else’s lives are in danger, they are not required to get shot and maybe some people pushing that and it could be wrong as long as it’s not totally unreasonable.

Now, again, I’m an NYPD alumnus, this is an organization 23:29, six million called year, 50 shootings a year, that’s not we want to see, we want to see a small number of shootings with some police leadership issues, with people fail to do things, there is a political failure, writ large or all of this, but where we are now is the worst possible place.

And by the way, the ultimate idea that needs to erect the society trying to criminalize the police, it’s the same thing that you have with Wall Street by the way, you may not like the optics and you may not like what’s happening there, but it’s simply not workable in our system to blame front-line police officers generally. There is exceptional cases to be sure, but that’s where this conversation is deteriorated, which is why you now have a police job that’s unlockable and undoable, not in wealthy America, that’s going to be okay.

But police jobs all over the country are gone begging, and again, if somebody was a prosecutor and a lawyer, how can I tell a young person about the police work to physically encounter anybody now with their liability right on the line; civil, criminal, departmental, and maybe demonization, maybe having people marching at your house.

Bob Ambrogi: There are a lot of strong issues around this issue. Tod Burke, do you know has there been any research on the effectiveness or not of body cameras worn by police/

Dr. Tod Burke: Yeah, there have been. Some of them were a bit premature but the early studies seem to show that the body cameras with the police officers have been effective. It has been effective in reducing complaints against police officers and also improving police effectiveness.

(00:25:10)

What I like about the body cameras is it does give you a view from a police officer’s point of view and that’s what the courts move on as well and saying, with all the incidents that have occurred what was the police — from a police officer’s perspective what happened? The camera will aid in that. Again, it’s not going to be the end-all but it will aid in that, and I think what’s happening now is we have to be concerned ourselves about policy and policy implementation, when dealing with the body cameras.

We were quick at throwing on the body cameras post-Ferguson and there wasn’t a lot of thought in going into a lot of questions that needed to be answered, but in particularly dealing with policy and how the cameras are going to be used, the cost of the cameras, the cost of storage, all of these things that seem to go in to the body camera. So what thought really needed to go into it?

One study did indicate that, and again, it was a limited sample, a limited area that those officers that actually used the body cameras were in greater danger. They were more likely to be assaulted. So you have police agency saying, this becomes an officer’s safety issue by actually wearing the cameras, and they’re thinking too much about the camera and about the recording and not doing what they’re trained to do.

So there is that side of it, but again, it’s a matter of effective policy, it’s a matter of transparency, it’s accountability and if you have nothing to hide then go ahead and use the camera.

Bob Ambrogi: Well, we’ve just about reached the end of our program and before we wrap up the show, we’d like to give each of you an opportunity to give your closing thoughts on this topic, and we also would invite you to let our listeners know how they can follow up with you if you’re interested in doing that. So Eugene O’Donnell let’s start with you, your final thoughts on body cameras.

Eugene O’Donnell: They are inevitable, they’re mostly going to vindicate the police, the part of a larger concerning issue which is de-legitimizing the police, undermining the justice system, putting it in the off position which is going to hurt poor people more than anybody, it’s an elite one in the conversation.

And we have a very important issue with borders and elite and that’s go through who’s going to become cops. Again, some of the elite that was disrespect for the police so they don’t really care, but for those of us who actually care, are the best and the brightest, going to become police officers wearing body cameras, exposed to criminal, civil and departmental liability at return.

And the answer so far, and it’s not just because the cameras but in city after city, town after town, it’s hard to get anybody ambulatory to be in the job, we need another serious conversation, we are backwards on this, we’ve got to figure out how to build trust in community to beat the police, we’ve got to try to elevate police-impacted procession but in the meantime, we have a national crisis and we have unfortunately a gun and a violent society that’s unique in some ways in the Western world.

Bob Ambrogi: Eugene, how can our listeners find out more about you or follow up with you if they care to do that?

Eugene O’Donnell: I am happy to answer emails, I’m at John Jay College, I am happy to help the people that are in agreement or not agreement, have anything to share.

Bob Ambrogi: And is this on your website or where you – where can they find that?

Eugene O’Donnell: I mean I find googling things the easiest or maybe I’m just an old timer. 28:42 John Jay College and it’s easy enough to find that way.

Bob Ambrogi: Okay good. And Tod Burke, your final thoughts.

Dr. Tod Burke: I also agree with Gene that body cameras are inevitable; however, I believe the benefits far outweigh the concerns and limitations. I believe the benefits are that the officers behave better, there’s better police-community relations, there’s accountability and transparency. There is a reduction in citizen complaints and a reduction in claims against officers.

I think it also — body cameras document and preserve evidence that can be used for the officer, it can be used in court, it could be used for officer training in a positive way and it is shown from an officer’s perspective. At the same time, I think we also need to address the sensitive issues that we talked about such as domestic violence, homicides, juveniles, child abuse cases.

It could prevent people from giving information to police officers. We’ve got to be concerned about bystanders being recorded and certainly officer safety issues that the officer needs to react without focusing on the camera and the follow-up reaction from it. We must be able to balance a citizen’s right to a fair trial with these privacy concerns as well the officer’s right to a fair trial and a fair hearing; whether it be internal or external, and we have to be able to address social media concerns. I can be reached through Radford University. My email is  HYPERLINK “mailto:[email protected]” [email protected].

(00:30:26)

J. Craig Williams: Great. Well, thank you very much. We’d like to thank Professor Eugene O’Donnell from the John Jay College of Criminal Justice and Dr. Tod Burke; Professor in the Department of Criminal Justice at Radford University for being with us today in our discussion about body cameras for police.

That brings us now to the end of our show. This is Craig Williams. Thank you for listening. Join us next time for another great legal topic. When you want legal, think ‘Lawyer 2 Lawyer’.

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