Sunday, February 1, 2015

MO HB 75 -- Should All Cops Wear Video Cameras?

In response to Mike Brown/Ferguson, Garner/New York, our local issue with the arrest and beating of Bob Estep, and so forth, people across the country have proposed requiring all cops on duty to wear video cameras. In Missouri, this issue has come to a head with the filing of HB 75. People I respect are supporting this measure and I agree with some of its aims, but I also have problems with it, some of which can perhaps be resolved by better wording and some of which perhaps can not. In this article, I am going to explain the proposal as I understand it, explore the underlying issues, and lay out my objections. Hopefully this will lead in the direction of a solution which works.

What Is the Goal?

Let me start by making it clear that I do not believe that all of the examples of police abuse currently in the news are examples of abuse. I am not convinced that Mike Brown is such an example, for instance, but do believe that the throttling of Garner in New York probably is. Sometimes the evidence for or against abuse is simply not there, and this is what advocates of HB 75 hope to change by recording objective evidence from every encounter to help make that decision. In theory, that evidence cuts both ways by:

  1. Providing evidence that a victim was abused when law enforcement goes too far
  2. Providing evidence to clear the officer when the suspect escalated the encounter.

Michael Steinberg, Legal Director of the ACLU of Michigan, states this "win-win" outcome as the position of the ACLU["Violence In Ferguson Spurs Interest In Police Body Cams", CBSDetroit, 5 Oct 2014].

The Missouri law justifying a peace officer's use of force is found in chapter 563:

1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.[emphasis mine]

The rest of the section goes on to discuss use of deadly force in making an arrest. I discuss this in detail elsewhere in the context of the Supreme Court Garner decision and the fact that Missouri law may be unconstitutional as written[Eric Vought, "Tennessee v. Garner and Missouri's Use of Force Statute" guest blog on].

Note the use of the term "reasonably believes" three times in this section. In criminal law, "reasonably believes" sets up both a subjective and an objective standard. The peace officer must believe that the suspect is guilty of an offense and that the arrest is justified. Belief is subjective. The peace officer may truly believe something and be completely mistaken: it still counts as "belief".

The law goes further and requires that the belief be "reasonable", which means that there must be rational cause for the belief. The mythical "reasonable person", confronted with similar circumstances, must be capable of holding such a belief. This is an objective standard which is influenced by previous case law defining what is considered "reasonable" and what is not[Joel Samaha, "Criminal Law, 5th Edition", West Publishing Company, Minneapolis, MN 1996. pp 220-221]. The textbook case dealing with "reasonable belief" is People v. Goetz [68 N.Y. 2d 96, 506 N.Y.S.2d 18, 497 N.E. 2d 41 (1986)]. The opinion in that case goes into detail on the difference between "belief" and "reasonable belief" in finding that a man in the NY subway did not have a "reasonable belief" that the teens he shot were armed and a threat to his life.

So, in the end, then, the question of "reasonable belief" is what we hope to use video evidence to answer, and, specifically, the objective "reasonable" component. There is also an inevitable trap, however: video evidence shows us what actually happened and may go to proving whether an attempt to arrest (and therefore to use force to effect it) was actually correct. The actual question in justifying use of force is not whether the arrest was justified, however, but whether the peace officer "reasonably believed" the arrest was justified. The temptation of video evidence is to get distracted by hindsight rationalization and lose sight of the what the peace officer knew or should have known at the time he (or she) was forced to make the decision. Those two issues are not always the same.

The Limits of Video Exemplified In Rodney King Trial

The Rodney King incident is a good example of misuse of video when context is lost. The short clip the media played over and over showed a number of police beating an apparently helpless man. The media did not show the crucial 13 seconds of video or the non-taped events leading to that moment where the suspect beat and hospitalized several officers and brushed off the effects of the taser, because, the officers believed, King was under the influence of PCP.

Although the later evidence questioned the idea that he was drugged at the time it is clear that the taser was completely ineffective for some reason, the officers did not know at the time whether or not he was drugged, and lawyers for both sides stipulated that King was intoxicated. The extent to which the police used force almost certainly went too far, but the question of whether the police "reasonably believed" that escalation of force was justified was lost (for many people) in the hindsight, knee-jerk reaction to the video clip, which lead to the outraged public reaction at their unexpected acquittal.["The Limits of Videotape: An Echo of Rodney King"]

This is not to say that video is not useful, but rather that it comes with its own dangers which we must be mindful of. In some cases, video from dash-cams or bystanders makes the critical difference in obtaining a prosecution or disciplinary action for use of force, such as the beating of 76-year-old Pete Vasquez where dash-cam footage lead to the firing of the officer. We have to recognize that video footage is not magic, it can be misused, and must be balanced with other evidence.

Some People Are More Equal Than Others

The problem is that other evidence often comes down to two factors:

  1. The word of the the suspect
  2. The word of the arresting officer

Both of these parties have strong motives to lie or color the truth. Both of the parties may have their perceptions colored by stress. Both of them may make mistakes. All things being equal, the testimony of both should be weighed the same.

All things are not equal, however. The incidents are generally investigated by the police themselves and the local prosecutor has a close relationship with law enforcement. The courts and jurors also tend to believe law enforcement over the word of the suspect, especially if the suspect is actually a criminal or can be painted by law enforcement as anything other than a perfect citizen. The problem here is that criminals and riff-raff are no less entitled to the protection of the law regarding use of force than anyone else, and even the most honorable citizen has done something which can call their word into question. Past behavior of police officers in the arrest, however, is often barred by the judge as prejudicial unless the officers themselves call witnesses or submit evidence to their character.

In an ideal world or even one which is moderately fair, a peace officer should be given some benefit of the doubt in whether their actions are justified. Law enforcement does deal with criminals on a regular basis, they are required to put themselves at legal and physical risk to carry out their public duty, they are (theoretically) given adequate training in the limits of the law, and they are often the only ones in the place to judge whether they believed an adequate threat existed. This is the exact same sense in which Castle Doctrine creates a presumption that a home owner is justified in using force to defend themselves and places obstacles in the way of armchair quarterbacks second-guessing their fear of an intruder who awakens them in the dead-of-night.

But again, the world is not ideal and often is not even "moderately fair". Especially when police encounter citizens going about their lawful business and instigate an encounter the citizen has no ability to avoid, we rightly question the deference accorded the law. Pete Vasquez had done nothing wrong. He had dealer plates on his vehicle which temporarily exempted him from having a valid inspection sticker. He did no more than explain this (relatively courteously) to the officer who was in fact mistaken about the law. Vasquez had no ability to avoid the encounter initiated by a police officer. Other similar encounters suggest that, in the absence of video evidence (and the word of a bystander, incidentally), Vasquez not only would not have received justice but he might have found himself charged with being the aggressor and prosecuted. An intruder can choose not to break into a home, but a citizen cannot necessarily avoid an encounter with law enforcement.

Even with body cams, the suspect does not always win a claim of abuse, such as the controversial case in Florida where Victoria King was dragged out of her car at a traffic stop and convicted of resisting arrest despite allegations of excessive force and brutality. The officer was wearing a body cam but the video does not clearly resolve the different claims of how the window came to be broken or whether King attempted to roll up the window on the officer's arm. A video does give the citizen an opportunity to present evidence which might not otherwise exist.

What Does HB75 Try To Accomplish

Let's take the bill summary [PDF] a piece at a time (the bill text is also online [PDF]). We are referring to the Introduced version here, which will likely change as the bill makes its way through committee.

This bill imposes an additional tax of one cent on every retail sale of any handgun or ammunition in Missouri. All revenues derived from this tax must be used solely to provide funds for video and audio equipment for law enforcement officers.

This is the mechanism proposed for funding the body cameras. It should be noted that the bill text is specific, limiting the use of the funds to the implementation of body cameras not video and audio equipment generally. However, the precedent this would make is alarming: gun-control advocates have often proposed taxes on ammunition and firearm sales to fund violence prevention. Those taxes are often shot down (by the electorate or the courts) as impermissible restrictions on the Right To Keep and Bear Arms.

Why should gun owners bear the burden of this enactment? Why not a tax on basketballs or cars or donuts? To put a specific perspective on this, why should unpaid law enforcement volunteers— who already pay for their own equipment (including firearms and ammunition) in order to serve the public— pay for the body cameras as well? If it is important enough to require peace officers to wear video cameras why is it not important enough to fund from general revenue and share the cost equally among all citizens? If this is passed, what precedent does it set for other taxes on firearms and ammunition for other public uses with arguably just as much merit? I would oppose HB 75 on these grounds alone.

The bill requires all uniformed law enforcement officers in Missouri to wear a video camera affixed to his or her uniform while on duty. The video camera must record the interaction between a law enforcement officer and a member of the public. The recording must include both audio and video.

Uniformed law enforcement officers arguably would exclude uniformed volunteers without arrest powers, but, e.g., the Lawrence County Sheriff's Auxiliary includes uniformed volunteers, some of whom are commissioned, who do not possess law enforcement powers and the language is potentially ambiguous. It would be preferable to specify "licensed peace officers" or require arrest powers explicitly. Volunteers may be deputized during an emergency, thus temporarily gaining arrest powers under RsMO 57.119, and the wording may require further tweaking to exclude this case. It is not practical to equip temporary deputies called up in the middle of a dire crisis with cameras. These are wording problems, however, and not fatal to the bill if corrected.

All law enforcement agencies must preserve any recordings made by a video camera for a minimum of 30 days and must develop any policies and procedures necessary to execute these provisions.

Clearly if we are to bother making the recordings, we need to ensure that they are preserved, so this portion is common sense. It is worth mentioning, however, that the videos should not be publicly accessible nor necessarily amenable to Sunshine request (Missouri's equivalent of FOIA) because they likely contain confidential data. This is not to protect the LEO but the rights of victims and suspects. Some of this has been discussed in Columbia, MO where officers now wear body cams (which can be switched on and off at need).

I reject out of hand the idea that law enforcement officers have any privacy right in their public actions. The public they interact with, however, clearly does have a privacy right. It is also important to note that some actions of law enforcement, while being technically public, may endanger law enforcement efforts or the public if revealed. This encompasses the entire sphere of data typically classified as For Official Use Only or Law Enforcement Sensitive and exempted from Sunshine Act requests. Often this protection should only be temporary, such as data revealing details of an ongoing investigation or security measures for a public event.

At a minimum, body cam videos should be accorded the same protection as 911 recordings under RsMO 610.150 ("... shall be inaccessible to the general public... Any closed records pursuant to this section shall be available upon request by law enforcement agencies or the division of workers' compensation or pursuant to a valid court order authorizing disclosure upon motion and good cause shown.") It can be argued that this is made possible by "...shall develop any policies and procedures necessary..." in the bill text, but I, for one, would be more comfortable were it spelled out. Again, this is not a fatal problem with the bill.

These provisions cannot apply to detectives or other law enforcement officers while they are working in an undercover capacity or to any law enforcement officer in any situation where the wearing of the video camera would endanger the safety of the officer or the public.

This provision is also common sense. Detectives interviewing witnesses or dealing with confidential informants obviously should not be [required to be] recorded and nor should undercover activities. In many agencies, detectives are not "uniformed" and undercover officers forgo uniforms for obvious reasons. There is a minor but significant ambiguity here where the lack of punctuation can imply that detectives are only exempted while undercover, which is clearly not the intention but potential confusion can probably be eliminated with slight rewording.

The Devil In the Details

So far we have a major issue with the funding source of the proposal and some wording problems, all potentially fixable. As we dig a little deeper, however, there is a nest of difficulty which is much tougher to resolve.

A large agency often has a clear distinction between patrol officers and detectives. As noted above, detectives are often not uniformed in such agencies, so they might be exempted under the wording of this proposal in any case. It seems likely that large agencies can shuffle responsibilities to make it easier to separate those who must wear cameras and those who should not.

It makes sense to use officers without arrest powers in some situations and I advocate the selective use of non-peace officers in law enforcement to separate certain responsibilities and thereby reduce instances of abuse. Lawrence County's intelligence section is entirely non-peace officer volunteers. This has created important opportunities because some witnesses and informants have come forward who would not be comfortable first approaching an officer with arrest powers. The non-peace officer has no authority to escalate the situation under 563.046. The non-peace officer volunteer becomes a viable bridge between "us" and "them". Such opportunities might also come into play with this proposal.

St. Joseph Missouri's experience with body cameras came with mixed results and issues were raised about the cameras discouraging the interaction of potential witnesses with uniformed officers.

What about small agencies and, in particular, rural Sheriff's Offices?

In many such offices, all deputies wear uniforms. Some of them primarily patrol and some of them primarily work as detectives, but all or most deputies will do both at least some of the time. The county Sheriff himself is a "uniformed law enforcement officer" and may, by turns, respond to a violent incident (should be recorded) or speak with a confidential informant (must not be recorded). A sheriff's office with (e.g.) 20 or fewer full-time deputies likely cannot shuffle responsibilities to make this proposal work.

Unlike the other minor textual problems of HB75, I see no way to tweak the wording to rescue it. Dash-cams, now becoming ubiquitous, do not suffer the same issues. An officer can step away from his vehicle to take a conversation off-the-record. If we give officers the discretion to turn off the cameras according to the nature of their task-of-the-moment, then the entire point of the bill would be undermined: how would we judge the claim that an officer was right to turn off the recorder in a situation where we have no recording and differing accounts? What happens when the recorder is 'accidentally' switched off during an altercation? Alternately, sheriff's offices might be exempted, but will a small-town police department with 6 full-time officers be any better able to comply than a rural Sheriff? If sufficient exemptions are made to correct the problem, will the bill be able to accomplish its objective of deterring police misconduct?

Alternative Solutions?

I am open to the idea that there may be ways to rescue the bill which satisfy my concerns and perhaps some will be suggested by readers.

The State Highway Patrol is clearly an agency with the size and structure. The Highway Patrol already has dash cameras (inward and outward facing) and audio on the troopers themselves. It might be a worthwhile experiment to start with body cams on SHP patrol officers. As a statewide agency, it is clearly appropriate to subject them to statewide policy.

Columbia's experience (along with that of Lowell, Michigan) suggests that body-cams have value even when officers can switch them on and off at will. The Columbia cameras retain video for 30 seconds before they are switched on. If policy requires the use of cameras in police-public encounters, then an officer switching off a camera in a questionable situation will need to justify that decision. If an officer's actions are above-board, they have an incentive to record in order to justify their actions to later review.

If cameras are to be always on (and perhaps even if they are not), the decision of whether to use them should be left to the jurisdiction and its voters. With large structured agencies and access to funding, it is likely that they are appropriate, leaving small localities to balance their needs, funding, and priorities. Columbia enacted their policy without the need for a statewide requirement. I am generally opposed to a one-size-fits-all statewide policy on body cameras and am therefore opposed to the HB 75 proposal as it stands.

Disclaimer and Disclosure

This author is the Commander of the Lawrence County Sheriff's Auxiliary, a unit of non-peace officer volunteers in service to law enforcement. I therefore have a relationship with law enforcement but am neither compensated nor employed by them.

These opinions are my own. Nothing in this article represents any official policy or opinion of the Lawrence County Sheriff's Auxiliary, the Lawrence County Sheriff's Office, any other agency or public/private organization.

1 comment:

  1. The original post was not an official statement. However, in discussion with Sheriff Brad Delay, he has relayed the following public opinions:

    * He also opposes this measure.

    * He believes that the utility of body-cams is at best mixed.

    * He agrees that the structure required by HB75 is completely unworkable for small agencies.

    * He agrees with the confidentiality/access concerns, adding that no law currently exists for how someone would make a lawful request for such data, how long it would be retained, how they would be eligible for destruction, etc.

    * He does not believe that the costs of the cameras themselves would be the significant problem; rather the direct cost would likely be dwarfed by other concerns, such as IT/storage, upgrades, support, etc.

    * In any case, he does not accept that the state/feds have the authority to impose such a measure and would leave the decision to individual jurisdictions and their voters:

    "The Feds and state have no business telling individual agencies that they must wear them. If they want the officers who work for them to do it fine, then so be it. But I am not willing to let them control my office or any other office."