Should officers be penalized for not using body cameras?

Scott Forsyth, BridgeTower Media Newswires

More and more police departments are purchasing and using body cameras. In great part the departments are being pushed by citizens who see the video generated by the cameras as evidence that can explain better the origins of police-civilian encounters and the conduct of the parties during the encounters. The video works both ways, exonerating civilians wrongfully accused of crimes and supporting officers in their description of encounters.
Is video from a body camera, or any camera for that matter, the definitive proof? No. To quote one expert, “it is only further evidence of the event.” “(T)he viewer of a video must evaluate and interpret its message, as with any other form of evidence or testimony.”

Yet, encounters between police and civilians can be fast-paced, confusing, and hostile. Third parties may not be present or, if present, what they perceive and remember may differ widely. The police recount one version and the victim, if he is alive, another. Thus, a body camera has the potential of capturing key evidence, helping to separate fact from fiction.

If generating evidence of every police-civilian encounter were the sole reason for using body cameras, then the camera would run basically from the moment an officer steps out of headquarters to the time he returns. In fact, other interests come into play, such as protecting the privacy of civilians and the privacy of police communications and simply the availability of police resources.

Balancing these competing interests has led to somewhat complicated policies on body cameras. Take, for example, the 27-page Body-Worn Camera Manual of the Rochester Police Department in New York.

Recording Requirements and Restrictions consume six full pages. There are “mandatory recordings,” “standard recordings,” “optional recordings,” “exceptions” to the last two, “civilian requests to stop,” “prohibited recordings,” “civilian requests to record,” and “special circumstances.” “(D)etentions/stops of persons and vehicles” and “force” are two situations which must be recorded.

Given the significance of video evidence in legal proceedings, what does the manual say about an officer not operating a camera when he is mandated to do so? Nothing. The camera policies of other departments are equally silent.

RPD’s chief may respond that, if an officer does not comply with the manual, the chief may file disciplinary charges against the officer. Unfortunately, a disciplinary proceeding, with its delays and secrecy, does not the help the victim of a hostile encounter, who may be the defendant in a criminal proceeding or the plaintiff in a civil rights lawsuit.

Since 2014 at least 14 persons have been killed by officers who did not turn on the body cameras that they were wearing. For example, in September a Charlotte officer fatally shot a young black male by the name of Keith Scott. The officer did not activate his body camera. Neither did two of the three other officers involved.

Protests ensued. After Thanksgiving the district attorney announced he would not charge the shooting officer, stating the available evidence showed Scott’s killing was “justified.”

Would the district attorney’s conclusion have been different if all four officers had operated their body cameras? We will never know.

Not having video evidence reduces the public’s faith that the justice system reaches fair and correct outcomes. So, what can the courts do without legislation to encourage the recording of police-civilian encounters and to plug the gap in policies?

The ACLU of Massachusetts recommends a trial court utilize a model instruction to the fact-finder, be it a jury or itself. If a testifying officer was wearing a body camera, did not operate it during an encounter that is the subject of a proceeding, and cannot reasonably explain his failure to record the encounter, then the fact-finder may devalue the officer’s testimony and/or infer the video “would have been favorable” to the civilian. A policy prohibiting ­recording in a particular situation may provide one reasonable explanation.

The recommendation is not as radical as some may think. Many states require the recording of custodial interrogations. Eight states impose consequences on the failure to record, ranging from a jury instruction urging caution in weighing an unrecorded statement to an outright suppression of the statement.

Video evidence has been enormously valuable in resolving contested police-civilian encounters. When the source of the possible evidence is a body-cam and an officer does not utilize it, without adequate explanation, a court can and should impose consequences. If a court does not, justice becomes less reliable.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at 585-262-3400 or scott@forsythlawfirm.com.

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