Legal Update Article
All across the country law enforcement agencies are implementing body worn cameras. The purported purpose and goal of this is to provide greater “transparency” and “accountability” for police actions. Locally, the use of these cameras has created confusion and controversy when applied to officers and their rights following their involvement in critical incidents.
Cameras recording these incidents are also becoming more common as cars are now equipped cameras, businesses are increasingly using cameras, and of course, most civilians are equipped with cameras through their cell phones.
The problem that we have seen is when it comes to the question of whether an officer involved in a critical incident (most commonly an officer involved shooting), is permitted to view the video prior to him being interviewed. The answer to this question varies with each agency, and sometimes changes monthly within these agencies.
One recent case provides a good example of these issues. Recently an officer responded to a fight call one late weekend night. This fight was occurring in a popular party area where college students hang out. The officer approached the scene and found a large young male assaulting a smaller male. The aggressor also had a gun in his hand. The officer ordered the male to drop the weapon which the bigger male did. The officer then went hands on with this large male and the fight was on. Due to a lot of details not included the officer was essentially on his own during the struggle and he was not able to control the larger male. At that point the officer pulled his expandable baton out and began striking the male in the head. Eventually he was able to place the male in handcuffs.
The issue became the officer striking the male combatant with blows to the head, which constitutes deadly force. The agency sent out their critical incident response team and treated it as a criminal and administrative investigation. The detectives asked me and the officer if we were willing to give a voluntary criminal interview. My first question was whether there was video of the incident and indeed there was. Predictably, there were several student bystanders who had whipped out their cell phones and taped the whole thing. There was also video from one of the police cars that was equipped with front facing cameras.
The agency told us that they would not let us see the video. We then told them that the officer would be invoking at this time and did not give a statement.
This case points out the importance of our being able to see the video that is in the possession of, and viewed by the agency’s investigators. During the interview the officer would have been asked many questions to determine whether he was justified in utilizing deadly force. The officer would have had to articulate what the circumstances were that led to his actions. These videos would either support the officer’s claims or refute them, or some mix of the two. In any case, there is a high degree of probability that whatever the officer said, the agency or some prosecuting agency could impeach the officer using the video, even if he was not lying and was doing his best to describe what was going on during this very stressful and evolving event.
Our policy has been, and will continue to be, that if one of our members is involved in a critical incident we first determine whether there is video of the event. If there is we ask to see the video before we appear for an interview. If our request is denied then we invoke immediately. If our request is granted then I (along with the officer if allowed) review the video, speak to the officer about what is shown, then decide whether to grant an interview. This policy has now been extended to all investigations that involve possible criminal charges, not just critical incidents.
Our suggestion to all of our leaders is to get in front of this issue and approach your commanders about these things prior to it arising on a weekend at 2 a.m. A simple discussion just asking them what would be their policy in these cases where there is video would then let us know how we are proceeding. Also, these discussions are valuable because it lets the command staff know the reasons for our position and to see if an agreement can be reached.
If you have any questions or comments about the above, or how it affects your members, give me a call. Thanks all.