Moving on from the discussion surrounding criminal prosecution and the legal use of cameras, now we will examine some civil liability considerations in the use of cameras.
Cameras as a Witness and Evidence
The very reason cameras exist is out of disbelief. When Detective Surgeoner started recording his shifts, it was because he found the activity he was responding was more unbelievable by the day. Many municipal attorneys applaud the programs for their use in court, but don’t always lead with the ease with which they can manage civil liability considerations when the encounter has been filmed.
The biggest tool in exonerating officers is when the interaction is filmed, showing that officers are following the law and policy in their interactions. Even when an officer’s action may look questionable, if the process was rooted in policy, the camera exonerates the officer, and dissolves the complaint. At least it should.
Fort Pierce, Florida
As far as dash camera footage is concerned, none are more famous to date, than that of a DUI investigation and subsequent arrest of one Mrs. Kristen Forester. On October 21, 2013, Forester was driving recklessly during early morning hours. When Officer Azevedo contacted her, he discovered that she was driving in only her bra and underwear.
When asked, she couldn’t explain specifically why she was underdressed, but did state she was headed home from work. Azevedo had her put on the only article of clothing that could be found, a basketball jersey, and requested Forester conduct field sobriety tests.
Upon conclusion of the tests, Forester was arrested for DUI. And a very bizarre episode concluded without further incident. Shortly after this incident, two other women were arrested for DUI, in somewhat related circumstances. The one thing all three had in common, they were all in their underwear when contacted. It’s never been questioned if there was any improper behavior of the officers, but as you’ll see in the next story there is good reason to always have the cameras rolling.
Albuquerque, New Mexico
It was a short news brief that revealed one of the biggest problems that officers face while on duty. Sexual assault claims.
What the news coverage didn’t detail is the long history of female arrestees making accusations against male officers that has been an investigative nightmare for years. Add to it, real life examples like that of former Deputy Dallas Hogan of the Thurston County Sheriff’s Office (Washington State), and how it is mimicked throughout film and television, it’s no wonder that some members of the public actually believe these types of scenarios are frequently occurring, rather than the distantly rare that they actually are.
A woman, Deanna Griego was arrested for DUI in Albuquerque in 2015, and throughout the footage captured on Officer Jared Frazier’s body camera, it shows that Griego attempted flirting, “mirroring” – a tactic typically employed by fraudsters, and when those didn’t work, she got desperate. Back the station, while she was being processed for the arrest, she asked to use the restroom, which Frazier allowed. What he forgot in that moment was that Griego had placed her cell phone inside of her bra during the FST portion of the investigation, and she made a phone call inside the restroom asking an unknown person, “How do I get this officer in trouble?” Frazier was smart, in that he already made his shift partners aware of the issue, and he kept recording, even while in the station. Once Frazier knew she wasn’t using the restroom for the intended purpose, he made contact at the door, telling Griego she needed to exit, and when she didn’t respond, he opened the door partially. Considering the circumstances, this was best practice, this made it so that Griego could not continue her communication, and ensure Frazier had not invaded any privacy due to Griego in that moment.
She began making accusations that Frazier had touched her inappropriately while placing her in the back of his patrol vehicle, and then she blurted out for him not to touch her anymore, on camera. Frazier honored her request for medical attention, notified his supervision, and completed arrest paperwork. The news story reported the incident in almost a comical tone. But had there not been any camera footage of the silly ploy of Griego, how comical would that news tone have been? And what would be the community reaction to that tone?
Albuquerque Police ordered an investigation, and a Sex Crimes Sergeant and Detective looked at the camera, and knew right away that Frazier did nothing wrong.
In the aftermath, the union brought up a valid point that didn’t seem to hit with any administration in the country. By way of their president, Stephanie Lopez, she stated the following:
“The desire to frame officers for wrongdoing is a growing issue facing officers every day. We believe that the public should be held accountable for filing false reports against police officers. These incidents can be very damaging to an officer’s career, so we hope that this individual and others face appropriate consequences for their malicious actions.”
And it stands to reason. When officers have actually done wrong, we typically have charged them and sent them to prison. In the case of those that lodge false allegations, we don’t seem to be as quick to file charges. Some of those decisions may be out of concern to interacting with the community. But a strong argument exists for considering the morale of personnel, when constant accusations are thrown around, leading to legitimate investigations into them, even though on face value it can be seen they are without merit.
Nonetheless, proven in this incident, cameras work well in eliminating civil and criminal liability against officers and their respective agencies.
Los Angeles, California
Only Hollywood could give us our next story.
A citizen complained to LAPD Dispatch of a couple, a black female, and white male, having sex in a vehicle parked on the side of a public street.
Sgt. Jim Parker responded, and located the couple rather quickly, the female ended up being Daniele Watts, the lead actresses in the film “Django Unchained.” Parker made contact, requested identification from the couple, at which point Watts attempted to flee by walking away from the scene. Two backup officers stopped and detained Watts, at which point her boyfriend, Brian James Lucas produced both his identification for both himself and Watts.
Both were issued Disturbing the Peace citations, and released. But soon after, Watts and Lucas used the influence that Watts had with fans at the time to write a completely false narrative about how the contact occurred, and that Parker was racist, in that Parker insinuated the couple must have been involved in prostitution, because Watts is black, and Lucas is white.
Parker, doing something that seems rather common on the part of LAPD officers for the last thirty years, released audio recording of the entire contact, which strongly rebuked the accusations made by Watts and Lucas, and led to many people questioning their integrity.
On a side note, Parker ultimately had to retire because of this incident, because LAPD launched several investigations into his release of the audio to the media, stating that he only did it to “create a private advantage for himself.” Between LAPD’s Internal Affairs investigation, the City of Los Angeles Ethics Commission, and any other third party government agency that could be involved, Parker has had to fight a number of inquiries into the release of the audio, rather than the actual accusation. A lot of perspectives can be gleaned from this activity, none positive.
Focusing on the use of cameras, Parker would likely be better served had there been a body camera present at this incident. Aside from growing sexual assault accusations against officers, we also have accusations of overt racism to overcome, where no racism exists. Protecting officers needs to become a priority, and cameras help that.
One of the considerations from this incident is the validity of both the internal, and ethics investigations brought forth against Parker. As we found in Flora, a 4th Amendment process is not private at all. Parker had Watts detained to investigate a Disturbing the Peace complaint. While the detention is not an arrest, it was pursuant to a summons, answerable in a court of law. The entire incident is then, a 4th Amendment process. Watts and her boyfriend Lucas have no right to privacy in the matter, and while it’s a matter of opinion, Parker’s attorney should consult both the Flora decision, and the subsequent Johnson opinion, as it relies heavily on Flora. Just as important, agencies should give strong consideration to the neutrality that both these cases have created on the issue of not only recordings of police activity, and public nature of them, but also what access to those records should be. Clearly, while LAPD may have an internal policy that requires dissemination of records through proper channels, but the law specifically states that Parker has done nothing wrong. While adhering to policy is best practice, this may be a moment where LAPD may have to review that policy, to ensure it’s not over-reaching the merits of Johnson. Because policy cannot be designed to circumvent the intent of case law.
Both examples have given us a lot to consider on the civil side of the use of cameras as digital evidence devices. And the list of similar ‘landmarks’ of cameras in police work is long, and covers an array of interesting circumstances. The main point is, digital evidence collection by way of agency-approved cameras and devices likely best serves as a deterrent from false accusations regarding the behavior of officers, mostly concerning response to calls, traffic stops, and subsequent investigations.
But there are a host of other moments where nothing criminal is occurring, and something civil is still present. Consider the following set of circumstances:
- An officer provides back-up to a DUI arrest that is occurring in the parking lot of a business, operating 24 hours.
- The subject of the arrest works at the business, and was intending to report to work.
- The employee they were going to relieve is concerned by the flashing strobe lights of the police vehicles, enters the parking lot, and see’s their co-worker handcuffed, and placed into a patrol vehicle.
- The backing officer conducts business checks as part of their patrol activities, and the following day conducts a check at the same business, where the co-worker is present. Both parties have a conversation, where the co-worker asks about the arrest, stating that the subject stated it was for DUI. The officer, equipped with a body camera, but under policy is not permitted to record this particular conversation simply says “I’m not allowed by policy to discuss the incident you’re referring to, despite what your coworker told you, and I was not the arresting officer.”
- Two days later, the subject of the arrest files a complaint against the backing officer that the officer violated their due process, because they announced to the subject’s co-workers the arrest.
This is a situation where criminal liability is not in question, merely civil. Again, Flora and Johnson tells us that 4th Amendment action is not private at all. By law, the officer in question would not be wrong in affirming anything related to the specific arrest.
But considering the tools at the officer’s disposal for recording this scenario, and saving any doubt, is your agency policy too tightly worded when it comes to what officers can and cannot comment on? What about when they can use cameras?
As the Parker incident shows, especially when dealing with celebrated members of the public, there is a huge amount of fervor and emotion centered around certain people making certain types of complaints. The Griego incident above only helps solidify that concept. If agencies have a duty to remove problem officers from work, they have an even greater duty to ensure that officers are protected from questions that concern reputation, integrity, and ultimate values. Which most agencies highlight as part of their culture.
Officers should have widely-liberal policy allowing them to record at will, because even if nothing comes of a particular incident, they have to be protected, and agencies need to ensure they’re giving their officers every opportunity to be protected. Overwhelmingly, retired and former Internal Affairs investigators describe that the amount of false accusations they investigated, compared to actual crimes and ethics violations by officers was and is staggering.
So, considering these civil liability questions, along with our previous criminal prosecutions concerns, what might be some best practices? In addition to a policy that gives officers the ultimate control in recording interactions, while also making arrest, detentions, and summons issuance required for recording, here are some other tools that may assist in matters of efficiency, and policy that does not overstep what law and case law has required:
- Recognition that 4th Amendment process is public, not at all private, and that the dissemination of such cannot be held back at any point in time.
- The use of a digital evidence collection system that provides a flagging system, which gives officers a way to flag videos for certain types of review. (We will detail this concept in later editions.)
- Providing a process that errs in favor of officers, if the use of cameras is restricted, or non-existent. Simply put, we can’t discipline officers if as an agency, we’re not placing officers in the best set of circumstances that we can.
- Creating a universal process for the use and dissemination of videos, no matter what the reason (i.e. criminal, civil, audit, etc.) for recovering video is for.
- Providing a system that has no editing features for officers, and save functions that only allow for the video to be sent to a secure folder, related to the cases or call at hand, and then a personal folder of the officers, for their own review, another topic we will we cover in depth in later editions.
- Recognizing that we reduce, not eliminate, liability.
From the perspective of civil liability, it is clear that digital video evidence, by way of dash-mounted, body-worn, cellular devices, even audio recorders, are all perfectly designed for drastically reducing complaints and accusations against officers, and thereby reducing overall liability.
The bigger questions in civil liability are what rights to individual officers have to the digital data acquired. In hopes of presenting that question and showing some outcomes, we desire to show that best practice is that those officers have the same access, although through separate channels, to that information, since it does concern them.
Agencies are being challenged to be more transparent, that is why the issues of cameras have come up. In that pursuit, agencies will also have to increase their transparency with agency staff. Otherwise, they may face civil liability from a side of the issue they did not expect.
In our next edition we’ll review Freedom of Information Act requests, and how those issues have shaped an entirely different conversation, another one that was not expected, and how those requests affect our work, and how we should best address them.
Be safe out there!