In an age where every cell phone user is a potential videographer, police tactics have come under increased scrutiny from the public as headlines of law enforcement confrontations gone wrong are captured by citizen bystanders. These stories underscore the growing call for reforms in policing tactics and transparency through department-issued body-worn cameras for officers. Some want to see increased use of body cameras, including mandates for their use all police departments, in the hopes that such transparency will yield a reduction in incidents of force.
Studies in Rialto, California, and elsewhere have shown the benefits of body camera programs—including significant reductions in use of force incidents. For this reason, many police departments are adopting the use of this new technology. The cameras not only help bring transparency and accountability for police actions, but more often than not, they show the good work officers do and frequently exonerate officers against false complaints. Camera footage can also be used as evidence in criminal proceedings and is more reliable than any one officer’s or witness’ memory of events. However, cameras also pose a number of unique challenges. These challenges mean that policies governing the use of cameras need to be well thought out, well written, and enforceable to ensure that cameras are used effectively and in a manner that protect the rights of all involved.
Libertas Institute has put in hundreds of man hours behind the scenes in an ongoing effort to develop and implement such policies in Utah. While the potential benefits of cameras are clear, we do not favor an approach that mandates all departments use them; implementation is very costly. The public budgets that govern police expenditures should control the decision-making process for each department. However, the inevitability is that law enforcement agencies see the immense value of cameras and adopt their use in the absence of a mandate to do so. As this has happened in recent years, the policies that govern the use of body cameras vary from department to department. While this might be reasonable for policies governing other equipment like vehicles or handcuffs, when the privacy rights of all Utahns are at stake—and when officers are often, if not primarily, enforcing state laws—it becomes a state issue.
Last year, we issued open records requests to departments we had identified as using body cameras, seeking copies of their policies governing their use. The results were varied and worrisome: several departments used a model policy language that they had effectively copied and pasted; many departments had no policy, despite operating body cameras in the field; a couple departments’ policies fit on a single page; and every department that had a policy did not include accountability provisions and adequate protections for the citizens being recorded.
Inconsistency between local policies, in the absence of statewide minimum standards, could yield drastically different results for the collection of evidence, the understanding of the public, and for privacy. For example, if officers in one jurisdiction have total discretion over when to record and when not to record, the public would have no reasonable notice of whether or not they were being recorded; five miles to the east, in another jurisdiction, the public might believe that all law enforcement encounters are recorded because of their department’s policy. This might also lead to individuals believing evidence was collected when it was in fact not, thereby creating significant consequences during legal proceedings.
The impact of camera footage as evidence in legal proceedings cannot be understated. Video recordings have immense evidentiary value and thus the rules governing when recordings are made become very important. A significant and yet highly nuanced legal problem is how to apply the principle of evidence tampering to camera footage that was not collected in the first place due to an officer’s failure to record. While camera recordings would be considered evidence, and the unauthorized deletion or alteration of footage would be subject to rules regarding evidence spoliation or destruction, such evidentiary rules may not apply to cases where evidence was not collected in the first place through the selective recording of an event in violation of department protocol. Such a possibility could have dire consequences for a criminal defendant who wanted to raise a defense predicated upon events that should have been captured but were not.
We saw a similar situation in the case of Lisa Steed, a Utah Highway Patrol trooper who was turning off her microphone to avoid capturing her comments when she was violating DUI stop protocols. The issue in this scenario is not about whether state law should mandate punishment on an officer for negligence in recording, or even the creation of a civil suit against a department, but rather an issue of how state policy might protect the rights of the accused during a defendant’s legal proceeding when evidence against them is selectively collected. Libertas Institute, in collaboration with ACLU Utah and the Utah Association of Criminal Defense Lawyers, proposed a solution to this problem that was incorporated into last year’s unsuccessful body camera bill.
The solution was to find a way to apply a similar approach as a court would apply in the case of spoliation of evidence, namely, an inference in favor of the defendant or party who was harmed by the destruction of the evidence. The bill called this a “rebuttable presumption.” This means that the court would presume that the footage that would have been recorded (but was not) would have captured something beneficial to the defendant’s case. This presumption would be rebuttable, because other evidence could counter the presumption. However, in the absence of rebutting counter evidence, the court should view the existing evidence (or lack thereof) in favor of the defendant for that particular issue.
This approach strikes the right balance in protecting the rights of the accused from negligent or purposeful misuse of body cameras without necessarily creating any particular state sanction on officers who make a good faith mistake. While this seemed like a reasonable balance that was not aimed at indicting the character of police, some in the police lobby unfortunately felt this item was a deal breaker. In fact, some suggested that if the state were to impose such a rule that police departments currently using cameras may choose to end the use of their body cameras altogether rather than continue with an accountability mechanism like this. Much of this negative response may have been based on the perception that this provision was meant to harm or indict officers in some way, when in reality it was meant merely as a protection of the rights of a defendant with no direct implication for the involved officer.
Another critical issue to the use of body worn cameras is privacy. Body cameras represent a potentially advanced form of surveillance as a body camera can go into homes and other private areas an officer may go on foot that they would never go in a police car, where a dash camera is currently used. When camera footage is gathered at this level of granularity it is important that the reasonable expectations of privacy by the public are protected. This means that secure storage and limited retention of footage not pertinent to ongoing investigations is critical. All Utahns should have the same right to privacy in these recordings despite the jurisdiction they are stopped in. This is why statewide minimum standards are important for governing retention schedules and disclosure rules for camera footage.
We believe the body camera legislation now being discussed is a good one and does a good job of balancing most of these critical issues. The bill does not mandate law enforcement agencies to use body cameras. However, for those agencies that do utilize cameras, the bill sets minimum standards across the state to follow when equipping officers with these devices. Provisions include guidance for when cameras must be turned on, how footage is to be used, and how recordings are to be retained and disclosed. The bill seeks to strike a balance between the needs of law enforcement and the rights of the public.
Key provisions include:
- Law enforcement agencies must have written policies governing body camera usage and make those policies available to the public.
- Body cameras must be activated during any law enforcement encounter.
- Body cameras must be activated for any warranted entry into a home.
- To protect privacy, body camera recordings that do not have a significant police interest should not be retained for longer than 90 days.
- Body camera recordings that record people when they would otherwise have an expectation of privacy will be protected from disclosure to the general public under GRAMA.
- Violations of policy or unauthorized alterations of recordings will not be permitted to be used in a way that undermines the rights of accused criminal defendants in court.
- Law enforcement agencies must utilize software that protects the security and integrity of retained recordings.
We urge the legislature to think carefully about these issues and to ensure that the implementation of body camera programs in Utah comply with best practices in a way that protects the privacy and other rights of Utahns. Statewide minimum standards can provide that assurance in a way that individual policies may not.