Body Cams – Should they be standard issue or a privacy issue?

The number of fatal police encounters, which continue to garner national media attention, appear to only be increasing since the death of Michael Brown in Ferguson, Missouri. A state Grand jury, as well as a separate Department of Justice investigation, concluded Brown's killing was justified and that Ferguson Police Officer Darren Wilson did not use excessive force. A number of groups continue to challenge those findings; an argument that a "body cam" could have conclusively ended (as it apparently did in Boston in June with the shooting death of Usaamah Rahim). Unfortunately, Officer Wilson was not equipped with one. However, the number of fatal encounters with law enforcement which make national news are likely dwarfed by the number of such encounters which do not make national headlines. For example, a nonprofit organization, Fatal Encounters, has attempted to track the number of persons killed by law enforcement since 2000. The group estimates approximately 1,091 people have been killed by law enforcement since the day of Michael Brown's death. It's unclear whether Fatal Encounter's estimation is accurate (and it is unknown what percentage of those killings are unjustified), mostly because there are currently no "official" nationwide statistics about the number of unjustified killings of civilians by law enforcement, despite the fact that Congress, in 1994, enacted the "Violent Crime Control and Law Enforcement Act" which, in part, requires "[t]he Attorney General… [to] acquire data about the use of excessive force by law enforcement officers," and then to "publish an annual summary of the data acquired…" See 42 U.S.C. § 14142(a), (c).

There is a (somewhat) new initiative making its way through the Massachusetts state legislature which would hopefully provide the necessary data for the Attorney General to begin performing the statistical analysis it is required to do (at least for such killings in Massachusetts). On January 16, 2015, a bill was presented to the House of Representatives by Rep. Denise Provost of the 27th Middlesex District which would require, among many other things, "[e]ach police officer in this State [to] be equipped with a personal audio-video recording device." Four days after the bill was proposed, it was referred to the Joint Committee on Public Safety and Homeland Security. The bill appears to have received little attention in the media until recently, when Senate President Stanley Rosenberg called on the legislature to consider funding the initiative, providing local law enforcement with the means to try the devices. Even if the legislature chooses not to provide such funding, there is still federal funding to be had; in May the Department of Justice authorized $20 million in federal funding to aid local law enforcement agencies to obtain, and implement the use of, body cams.

Whether the money ultimately comes from the feds, the state legislature, or both, it seems likely that the implementation of body cams will occur in the very near future (some departments have already implemented them). For example, the Massachusetts Chiefs of Police Association has indicated its approval of the use of body cams, although it currently takes issue with the bill currently before the state legislature. Attorney General Maura Healey has indicated she would also be open to the initiative. Despite this support, Governor Charlie Baker has expressed skepticism to the idea because of "new privacy concerns" which would arise from their use. That said, any "privacy concerns" associated with the body cams are likely diminished by certain provisions in the bill, as it currently exists, requiring law enforcement to "inform the individual…that the audio and visual content of the interaction is being captured on film." Additionally, the bill states "[i]f an individual does not want his or her interaction" to be recorded, "the officer… interacting with the individual shall turn off their personal audio-video recording device."

We may forget at times, but police officers, like the rest of us, are human. Perception is oftentimes imperfect, especially in rapidly developing, high pressure situations. The ability to perfectly recall what occurred during an encounter, be it from the perspective of the civilian or the officer, is all but impossible. Whether a routine traffic stop, the execution of a search warrant, responding to a domestic dispute, or, perhaps most importantly, when the use of force is employed during any of the above, the use of body cams would have the effect of helping to ensure that the event or encounter is properly and accurately recorded.

As a criminal defense attorney, I see time and time again important discrepancies between the manner in which an encounter is described by a client compared with the way in which the same encounter is described by law enforcement in a post-hoc report (often authored days or weeks after the encounter occurred). Whether the discrepancies are attributable to intentional misinformation, imperfect memory, or a combination of both, systems must be put in place to help ameliorate the effect of such differences. A defendant's freedom should not turn merely on a single statement in a police report based upon imperfect recall of an event occurring sometime prior, especially where we have the means to ensure accurate and appropriate recording and documentation of those events. Moreover, law enforcement will also benefit from the implementation of these body cams because they will help to weed out frivolous claims of excessive force or unconstitutional actions by persons subject to police interactions. Lately, there have been groups, such as WeCopWatch or the Network for the Elimination of Police Violence (who may have their own agendas), who have promoted the use of cell phones cameras to capture law enforcement interactions. The body cams will law enforcement to counter those groups if they attempt to alter, doctor or edit such cell phone camera footage.

Either way, the bottom line is this: what can inculpate can just as easily exculpate. While body cams will allow a better record when law enforcement uses excessive force or inappropriate tactics, so too will they allow law enforcement to protect themselves from unfounded claims of police brutality or unconstitutional behavior in the same way.