Questions remain about legal procedures for using video as evidence
By Patrick Johnson
Republican of Springfield
SPRINGFIELD, Mass. (AP) - In light of recent events nationwide involving police and the use of force, everyone seems to have fallen in love with the idea of fitting police with body-worn cameras to record activity.
But in all likelihood, it will be some time - years maybe - before the devices are deployed on police officers in Springfield or anywhere else in Massachusetts.
What's the problem? Survey after survey shows broad public support for body-worn cameras, or body cams, on police. That support has only grown in light of rioting in places like Ferguson, Missouri or more recently Baltimore and now the campus of the University of Cincinnati, where police have been accused of misconduct in the deaths of unarmed black suspects.
For the public, they are seen as a vital check-and-balance against those officers who would abuse their authority. For the police, they are seen as protection against members of the public who would falsely accuse officers of police brutality.
The Department of Justice in May authorized $20 million in federal funds to aid police departments to obtain them. The money is part of a three-year program budgeted at $75 million. President Obama in December proposed spending $263 million to purchase 50,000 cameras for police.
The Massachusetts Chiefs of Police Association is strongly in favor of body cameras, and Attorney General Maura Healey is open to departments using them.
In Springfield, Mayor Domenic Sarno supports them, the City Council supports them and Police Commissioner John Barbieri supports them and wants to push for them in the next union contract.
Even the American Civil Liberties Union, an organization whose raison d'être is to defend privacy rights of the public and to resist the expansion of police surveillance powers, supports them.
"Although we at the ACLU generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers," writes Jay Stanley, a senior policy analyst for the ACLU. "Cameras have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse."
The devices have broad support in theory but, at least in Massachusetts, they are hardly used. Wayne Sampson, executive director of the Massachusetts Chiefs of Police Association, knows of just a handful of police departments using them - and all are doing so on a trial basis.
"There's no one in Massachusetts that has fully deployed them in their department and using them in essential duties," he said.
Again, what is the problem?
Actually there are a number of problems, or at least concerns, when it comes to body cameras. These include existing state law, legal procedures for using video as evidence and privacy issues. There are even logistical considerations about how police departments would process and store the hours and hours of video being recorded recorded by their officers.
"Those are very big questions," Sampson said.
If police are to use body camera footage as evidence in criminal cases, then like all evidence, it has to be stored somewhere secure with restricted access to prevent tampering, altering or even deletion.
"Just the cost of the storage of all the data may be prohibitive for some departments," Sampson said.
Cleveland police recently entered a contract to purchase 1,500 body cameras. City officials were surprised to learn the estimated cost for data storage could rise to $3.5 million over five years.
Sampson said another very big question is a legal one. According to Massachusetts state law, there's a very specific word for what happens when a police officer records audio of someone without a court order or getting the person's permission.
It's called wiretapping, and it is very much illegal.
He cited in particular Massachusetts General Law chapter 99, section 272, which reads in part:
"The use of (electronic recording) devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime."
With that in mind, Sampson uses this example:
Suppose a cop chases a suspect down the street and arrests him, and the video and audio of the entire incident is recorded on the officer's body cam. Because the pursuing officer had no court order and did not yell an advisory to the fleeing suspect that the chase was on camera, could a defense lawyer argue the footage is inadmissible in court?
He said it sounds ridiculous, but it's a question the police association and its legal team is taking very seriously.
The courts have ruled in recent years that it is permissible for the public to record police officers while they perform their jobs in public places without running afoul of the wiretapping law. The rulings did not extend the same courtesy to the police, Sampson said.
The Chiefs of Police Association has lent its support to a piece of legislation filed in January, House bill 1637, which would amend the wiretapping law to include a passage reading, "a camera with audio recording capability mounted in a police vehicle or on the person of a uniformed police officer will not constitute an intercepting device."
It has been forwarded to the House Judiciary Committee for review.
Gill Police Chief David Hastings, president of the Western Massachusetts Chiefs of Police, said for him "the biggest issue is the privacy issue."
For the last several months, a member of his department, Sgt. Christopher Redmond, has been wearing a body camera as part of an extend trial run. The experiment has led to more questions than answers, he said.
If officers respond to a private residence for a medical call, should they use body cameras if they step inside the house? If so, what are police supposed to do with the footage? Do they keep it forever? Do they destroy it? Could someone petition the department for a copy of the footage under the Freedom of Information Act, and then post it on YouTube?
Hastings said all of this will have to be worked out before his department, Springfield, or any other department in the state can expect to see cops with cameras.
He estimated none of this will be cleared up any time soon.
Felix Browne, Communications Director for the state Executive Office of Public Safety, said there has been a lot discussion recently in the agency on the use of body cameras, but it has not yet resulted in any concrete proposals.
We cannot ... implement body-worn cameras without giving legitimacy to concerns ... about how they will be used.
"We are not poised to release any finished policy," Browne said. "The release of any finished policy is not imminent."
Attorney General Healey supports departments that wish to explore using body cameras, but has not issued any opinions on their use.
"(Healey) understands there are concerns when it comes to the impact on relationship-building in the community policing space, and privacy concerns that others have. As a first step, she supports resources for the departments who choose to use them," said spokeswoman Emalie Gainey.
Count Gov. Charlie Baker among those expressing skepticism over cameras, primarily over the privacy issue. In an interview with the MetroWest Daily News in Framingham, Baker said the state needs to proceed cautiously before deploying cameras for police.
"I worry a little bit about public privacy issues there. And I think the public, if they understood how it works, might worry a little bit about it, too," he said.
Sampson said the Chiefs Association "strongly supports" the idea of body cams on the whole, but there is just so much to be worked out.
He said all the evidence from other departments across the country using them show that the presence of cameras can reduce both police use of force and complaints of police misconduct.
The cameras benefit both the police and public alike, he said.
Research into the subject seems to indicate that he is right. Three recent studies of police body camera use show fewer complaints have been filed against officers equipped with them.
In Springfield, body cameras have the support of mayor, the police commissioner and the near unanimous support of the city council. And even if the ambiguity with the wiretapping law were cleared up tomorrow, it would likely still be time before they would be in use in Springfield.
An arbiter has ruled the cameras are a contract issue and the city cannot unilaterally deploy them without first negotiating with the police union.
Police union officials declined to discuss the issue when called for this story. But Kevin Coyle, a lawyer for the International Brotherhood of Police Officers, Local 364, in December said there are "a million issues" with body cameras that need to be resolved.
"It's a very complex issue that most people associated with this have not thought about," he said at the time.
In May, 34 civil rights groups including the ACLU, NAACP, and Leadership Conference on Civil and Human Rights, signed onto a series of broad principles that they insist should be the policy framework for any law enforcement agency considering using body cameras.
Among them are:
- Any camera usage policies need to have public input.
- Communities need to define a set of "narrow and well-defined purposes" for which cameras may be used. In particular, facial recognition and other biometric technologies should be "carefully limited."
- Departments need strict protocols for recording, retention and access to videos, and strict punishments for officers who do not follow them.
- Any footage that shows the police use of force should be made available to the press and public.
- Officers should not be allowed to view footage of any incident prior to their filing their official report. Otherwise, it could cause an officer to write his report based on what is on the video instead of personal recollection.
Vira Douangmany Cage, an organizer with the ACLU's Springfield office, said if Springfield implements the cameras, it would be wise to involve members of the community in developing policies governing their use.
She said there is a high degree of mistrust among some people in the community and police.
"In order to address the issue of community trust, the community has to be a part of that conversation and the discussion of what the good policies that have to be in place for the body worn cameras to work," she said. "Because technology doesn't address the issue of trust."
She said people have legitimate issues about the technology and how the police will use it. The city needs explicit policies about when officers can turn the cameras on, and when it is not appropriate for them to be on, how long the footage may be stored, and when can the public have access to it.
"We cannot move straight ahead with technology and implement body-worn cameras without giving legitimacy to real concerns of people about how they will be used by the police and how the evidence will be used against them," Cage said.
She said the cameras may be worn by police, but "they are pointed at the people when the police are wearing them. It's a police officer's perspective."
Published: Mon, Aug 17, 2015
