We introduced the topic of body and dash cameras from a historical perspective, and gave some general, but very relevant examples of how the cameras are being used in law enforcement. We also talked at length about the public perceptions, and expectations of cameras, both in realistic and unrealistic views.
In this article we're going to focus on primary use of cameras in law enforcement, which is criminal prosecutions. It goes without saying, that if an agency is not worried about cameras as a digital evidence tool to be used in prosecuting an arrestee, that agency has bigger problems to work on than how to use cameras.
As we stated last time, dash cameras came into popularity by the self-initiation of a few officers in various jurisdictions. Eventually, the trend caught on with support of both police administration and nonprofits that had an interest in criminal justice affairs. Eventually funding was moved forward for the implementation of wide spread use of dash cameras, and thus began the reliance on digital evidence to support reasonable suspicion and probable cause claims made by officers.
Dash Cameras & DUI Arrests
When dash-mounted camera increasingly became a standard, their use in recording DUI investigations became critical to prosecutions. At the time, the early 1990’s, DUI activity was at a fever pitch, and many defense attorneys were finding ways to defeat officer credibility relating to their observations. At that time, officers had more credibility in the courtroom, by nature of their occupation. It was never assumed that an officer would falsely arrest a person for DUI. Some have said that the reasoning behind this at the time was that DUI arrests take up a lot of time, in terms of the process starting from reasonable suspicion, which initiates the traffic stop, to establishing probable cause through field sobriety tests, and processing, by way of the Breathalyzer, and of course jail booking. Criminal justice professionals didn’t see where an officer could go through all of these steps with a person under false pretenses. But then defense attorneys began finding ways to question little things in reports, particularly words used by the officer to describe behavior, mannerisms, and so on.
Pretty soon it was becoming increasingly difficult to prosecute a DUI arrest without a second officer witnessing the process. But when the dash camera came into play, all of that changed. Officers were conducting their DUI investigations by way of a dash camera, recording their investigations as evidence, and attaching video to their case reports. The video was extremely effective in court, as it documented the start of the investigation, to the conclusion, noting all tests, behaviors, answers, and observations that the officer made. And as the old saying goes, a picture is worth 1,000 words. In this case, video was worth a uncontested conviction, or plea deal if the criminal was smart.
Over time dash cameras began showing usefulness for more than DUI investigations. Traffic stops involving minor infractions where the subject, or even a passenger decided to attack an officer, became a ‘smoking gun’ in stipulating why and how force is applied by officers, while subjecting the public in some cases to the real live dangers of police work.
Dash Camera footage is not something that is argued in court on its own merits. The two main arguments ever brought up concern whether the footage has been edited, and whether or not the footage contains the entirety of the event. As it stands, those are really the only options that defense counsel have when subjectively trying to throw out video evidence from a particular incident. As with anything involving court, there are exceptions to this, and one in particular that has affected law enforcement in Washington State is State v. Flora.
State v. Flora
In 1988 in Sedro-Wooley, Skagit County, Washington, James Flora, an African-American male, purported to be experiencing racial hostility from his neighbors, and specifically racial epithets targeting his two teenage daughters. In one incident, two other young ladies from across the street called Flora’s daughters “N**** B******!” while riding past on bicycles. Flora’s daughters responded by throwing mud on a vehicle belonging to the other girls’ parents. Those parents called the Skagit County Sheriff’s Office. The responding deputies determined that Flora’s daughters had committed Malicious Mischief, and then attempted to effect an arrest. Mr. Flora directed his youngest daughter into the house, preventing arrest, to which the deputies then arrested Flora on an Obstruction charge. Mr. Flora contends that during this arrest, the deputies used the “N word,” directing towards him during handcuffing, and that deputies were “rough” in the arrest process. Flora’s oldest daughter was subsequently arrested, but during court proceedings the charges against both were dropped.
Fast forward to 1989. While the charges were dropped, the family across the street did obtain and serve a protection order upon Mr. Flora. On September 20 of that year, Mr. Flora is seen by one of the petitioners taking pictures in the street, assuming he was taking pictures of her house. It was later established that Mr. Flora was taking pictures of his friend, Norma Sherrin, driving Flora’s vehicle down the street, and that Flora was doing this as a way to establish by photograph the protection order parameters as they related to operating his vehicle on the public road in front of his house.
Consequently, the neighbor called the Sheriff’s Office, believing that Flora was violating the protection order. The same deputies from the 1988 arrest responded to the call and contacted Flora in the roadway. Flora explained that the protection order offered buffer of 20 feet, not 25 feet, which was the usual distance offered in such protection orders, but because of the smaller roadway in this neighborhood, the judge shortened the distance.
It is unclear if the deputies did not believe Flora, or they just believed that Flora was trying to instigate more problems with his neighbor, but in reading the case summary, it appears the officers were not very interested in the explanation Flora provided. Sherrin and Flora asked the deputies to accompany them to the front door of his residence, where he would obtain a copy of the protection order to show them the distance requirement. While doing that, both parties retrieved a stack of paper in addition to the order that was concealing a tape recorder that was recording. Flora stated in court that his reason for doing this was to record his impending arrest, out of concern the deputies might use racial epithets and assault him, as he had claimed before, stating that he had fear of reprisal.
As Flora exited his home, the deputies affected an arrest for Violation of a Protection Order. Sherrin accompanied the deputies with Flora to their vehicles, where she placed the stack of paper onto the hood of one vehicle, while holding a copy of the order. Once the deputies seated Flora, Sherrin then picked up the additional stack of paper, at which point the tape recorder was exposed, and the deputies saw that it was recording. The deputies then arrested Sherrin for violating Revised Code of Washington 9.73.030, Intercepting, Recording, or Divulging Private Communication. The deputies also charged Flora with the same violation.
The District Court affirmed the charges, however it appears that charges against Sherrin by this point were dropped, as nothing against her is noted after the initial arrest. She was a witness to Flora’s trail, and she stated that she was lifted off the ground during her arrest.
Flora appealed to the Superior Court, which affirmed the charges. Flora then appealed at the State Appeals Court. The court essentially was asked to weigh the definition of “private communications” as it related to government actors. And the finding of the court was that public officers carrying out official duties could not assert a privacy right for themselves, or for people they were engaged with. While this particular case does not involve cameras, it does spell out a clear expectation of the courts. That being what police do while on shift is not private, and that anyone can record them, and they can record the parties involved.
What this case did not outline was the scope of recording by police. That being, if and when officers are on a call, what kind of privacy considerations are there for people not involved in the call? The problem with this valid question is that there is no specific case law answering it. Many agencies have a policy concerning redaction that addresses unrelated third parties when present within digital evidence, such as video and pictures. Much of the policy is crafted on the basis of current best practices. Following agency policy is always the way to go, and much of these questions may be outside of your scope, but law is an ever-evolving discipline, and looking back at the time of this ruling it can be imagined that in the not too distant future we would be seeing case law that starts answering specifically what privacy expectations related and unrelated third parties have when interacting with law enforcement. We would venture to guess that by standard of law it will be very little, as being unrelated to a given incident makes that person the perfect witness, which is typically part of the public record.
Another case that outlines privacy considerations in the course of criminal investigation, and also from Washington State, was argued at the federal level. And it has defined privacy in such situations across the country. And ultimately you’ll see how the Flora decision was relied upon in this particular set of circumstances.
Johnson v. City of Sequim
On January 28, 2000, Mr. Johnson was videotaping his friends at a skate park in the City of Sequim. During this time, then-Chief Byron Nelson of the Sequim Police Department pulled into the parking lot of the skate park, attempting to locate a missing juvenile from an earlier report. Chief Nelson had his driver side window rolled down, and could observe Johnson who was approaching the rear passenger side of Nelson’s patrol vehicle. The in-car radio was noticeably audible, and Nelson was operating his cell phone at the time, attempting to contact the regional dispatch center and obtain the description of the missing juvenile. Johnson was not recording as he approached the vehicle, but by the time he reached the rear passenger side of the vehicle, he began operating the camera again, but not recording, and as he walked along the passenger side of the vehicle, Nelson rolled the front passenger side window down and asked “What do you think you’re doing?” Johnson was continuing to point the camera in the direction of Nelson. Nelson called for a backup officer, while stating that it was illegal for Johnson to record conversations without consent, referencing the same State law as the Flora case, that requires two-party consent to recording private conversations.
After issuing two warnings, Nelson exited his vehicle and began ‘struggling’ with Johnson to take the camera away from him, and in the process the back-up officer arrived, and they both placed Johnson under arrest.
While Johnson was held at the county jail, the prosecutor’s office issued a criminal complaint that cited the Privacy Act law, as well as resisting arrest. The judge in that hearing found there to be probable cause for the arrest, but ultimately dropped the charges.
Two months later, the prosecutor filed another criminal complaint, this time for Attempted Recording Communication without Permission, and resisting again. The judge in that initial hearing dismissed the charges, as it was shown that Johnson never actually recorded any conversations, and that even if he had, the burden of that recording was on Chief Nelson, as he had voluntarily parked his patrol vehicle in a public area, with his windows rolled down.
This is where this incident becomes important, because essentially any and all criminal matters have been solved. It’s well established that Johnson has done nothing illegal, and while this case was decided in a municipal level court, with direct impact to all law enforcement operations within Washington State, it is also safe to bet that this particular finding would ultimately become precedent for future cases. And Johnson ensured that in the next action, a civil suit.
On June 16, 2000, the same year all of this took place, Johnson filed a 42 USC 1983 claim against Chief Nelson, several Sequim officers, their city council and Mayor, the Sheriff of Clallam County (where Sequim is located), and Clallam County, citing that he had been persecuted against his 1st and 4th Amendment rights. For those that may not be familiar, a “1983” is a federal lawsuit regarding the deprivation of civil rights. As law enforcement officers, if any federal civil action is pursued against you, this will be the federal title used.
All defendants to the suit filed countersuits, citing Washington State law covering malicious litigation, RCW 4.24.350(2). The reviewing judge dismissed the claims against the defendants, and when they voluntarily withdrew their claims against Johnson, he appealed.
The US Court of Appeals heard this suit, and found the following: First, Nelson was operating under the color of State Law, which is the first test to a 1983 claim. Second, the communications made by police were not, nor ever have been covered by the Privacy Act that Nelson was citing, per State v. Flora. Johnson also used the Katz v. United States decision, pointing out that within the opinion of the Supreme Court in that case, Katz was entitled to privacy because the phone booth he used included a door, which he had shut. Comparing it to the circumstances in Johnson, Chief Nelson chose to park in a public space, and have his windows down, which fails the Katz test.
Subsequently, the Appeals Court issued an opinion that pointed out Flora, Katz, how they work together with the case at hand, how qualifications for non-private communication are formed, and how police radio communication was specifically exempt from privacy considerations by a prior serving Washington State Attorney General, noting that radio frequencies are regularly monitored by citizens with scanners, and therefore, even if Nelson had rolled his windows up, instead of rolling them down when initiating contact with Johnson, he would have been wrong in his decision to arrest, and should have been aware of that fact.
Lastly, they provided a case from Oregon, State v. Bichsel, which was similar to Johnson, and the court there ruled in the same manner.
The court established the arrest was incorrectly affected, was indeed a violation of the 4th Amendment, and that Chief Nelson should have been clearly aware of Flora, which stipulated that government actors did not have privacy while performing official duties. The Appeals Court affirmed some of what Johnson argued, but not all. They reverse some of the decisions, but not all as well. They sent the case back to Washington State for consideration following what they outlined in their majority opinion. The decision by the court included Judge Gould’s dissenting opinion, where he stated that he felt his peers were ‘imagining’ what the definitions of privacy in Washington State should be, compared to what they were, specifically finding that the near total elimination of privacy afforded to police officers in this ruling was too much reaching on the part of the court. However, the decision was final and remanded for reconsideration by Washington State.
Considering how long ago these particular cases occurred, it’s not surprising that at the time officers were generally of the opinion that they had a reasonable expectation to privacy in performance of some of their duties. It wasn’t until this decision at the federal level that the perception changed.
Fields v. City of Philadelphia
From the past, we come to the present. And a decision that nobody expected, considering the past, appears to have brought an argument to this privacy concern during criminal investigations.
Currently police across the country not only believe they can be recorded at any time while on duty, but they expect it.
Not so, says the Judge Kearney, a judge in the Federal District of Eastern Pennsylvania.
Two cases came into his courtroom, both in the form of civil litigation against the Philadelphia Police Department. One involved Amanda Geraci, a professional psychotherapist and trained legal observer of police, the other a college student named Richard Fields. In both cases Philadelphia police officers were on scene at two widely different incidents, one a house party, and another a fracking protest.
Fields and Geraci were both uninvolved third parties who were filming police for no other reason than to simply do it. The response by police in both instances was to prevent the parties from filming, and to take away their recording devices. Neither party faced criminal charges.
Each filed suit respectively, and then consequently both cases were heard at the same time, at which time Judge Kearney issued the opinion that no citizen has a 1st Amendment right to film, based upon the sole purpose of doing it as an ambivalent act. He did further state that had the two parties had an objectionable purpose towards police tactics, they could have continued, or if they were the subjects of a 4th Amendment process, they could film in that regard as well. In fact, Kearney complicates the matter by leaving an open end for both parties to seek remedy through a 4th Amendment challenge, but the problem for both Geraci and Fields, is that they were not arrested, so a 4th Amendment challenge can’t be brought forth.
Many people, including high ranking police administrators, have stated they don’t believe that this stance will last long as case law, and they suspect that an appeal will eliminate it entirely. And when Kearney cited that there was no Supreme Court, nor any other federal court that opined on 1st Amendment rights of citizens when filming police.
But let’s consider the two previous cases before this one.
First, in Flora, while the challenge remained at a State level, it had consequences for all police conduct, but it was squarely assigned to 4th Amendment process. There was never a 1st Amendment argument made in the case, and Mr. Flora did not see fit to address the matter through a 1983 action.
Second, in Johnson, his attorney did make an argument regarding his client’s 1st Amendment rights to film publicly, while also inducing his 4th Amendment rights being violated. However, in that court’s opinion they struck down the 1st Amendment considerations, and relied on only the 4th Amendment expectations.
So while it would be easy to see this as an issue of free speech, the courts have essentially ruled, for quite some time when adding in Katz, that the line between 1st and 4th Amendment expectations is not only different at face value, but entirely separate as a matter of context. Without saying it explicitly, the courts are saying no one has a 1st Amendment right to cause or add to crime, whether potential, or actual. And they’re also saying that 1st Amendment doesn’t extend to constant, unfettered monitoring of public officials, to include law enforcement officers, our most visible element of government.
You may be asking yourself, how we got here when analyzing how dash and body cameras work in criminal prosecutions. And the fact is, the courts have not answered that question for us completely, but they have giving us some parameters to adhere to, and that should limit our practice in criminal investigations.
- If you have body and/or dash cameras, ensure they are operating from the beginning of an interaction, all the way to the end. This will assist in eliminating any and all follow-up questions you or other personnel have later.
- In using these devices for criminal investigations, understand that so far case law is on your side. Using cameras for public assistance, all the way to a homicide investigation, and everything in between is not only good practice, but it’s our best tool in uncovering the finer details in any given situation.
- Once you begin interacting with a person, the automatic view is that their 4th Amendment processes are at stake, until it is undoubtedly determined in the course of the interaction that there is no 4th Amendment process involved – i.e., asking someone to step back is not necessarily a 4th Amendment action, but ordering them to is. Having policy that addresses the differences in interactions is necessary, especially considering the small amount of guidance these cases are giving us. Policy should be addressing that until a challenge is raised in court, the difference between the two is up for debate, because you’ll view each contact in complete contrast to what the person contacted will be viewing it as.
- Cameras can help establish facts and probable cause, and affirm an officer’s view of a particular incident. But what it also does is reduce liability in the form of silencing complaints, usually during discovery. Ensuring that your chain of custody procedures are firm regarding the handling of video, and that the rights to “edit,” or in legalese redact, are set to a limited group of personnel. We’ll address this point in more detail in a future edition.
While we didn’t address great examples of body or dash camera use in criminal investigations, the idea here is to touch on the outer edges of good and bad practices, and get an idea of what we can and cannot do when it comes to the use of these devices. Writing about good videos would probably end up looking more like a television show, and no one needs that.
Next week we will transition in civil liabilities, informal and formal complaints filed against personnel, and how video solves questions in those scenarios. Of course, we will be directly touching off of the information presented in this article, so feel free to reference it while reading the next.
Be safe out there!