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Thursday, May 23, 2013

Police Body Cams

This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in  the trial  challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.

Posted by Howard Wasserman on May 23, 2013 at 03:50 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink

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A while back, I submitted an op-ed to the New York Times on officer-mounted cameras. It was rejected, but I got a nice email from them saying that they were close to accepting it, but it lacked a sufficient opinion. Here it is in its entirety, for what it's worth:

"Officer-Mounted Cameras: A Win-Win?"

By Steven R. Morrison

Assistant Professor of Law

University of North Dakota School of Law

Officer-mounted cameras ("OMC") have received a lot of press lately.

These small video recorders are about the size of a pager and fit on the
chest of police officers. They film interactions that the police have with
citizens. There is a lot to like about them, a lot to dislike, and a number
of questions.

The concept of OMCs comes directly from the context of custodial police
interrogations, or "Miranda interrogations," much like those seen on Law and
Order, The Wire, and so forth. Since the Supreme Court decided Miranda in
1966, it has become clear that police, if they wish, can easily get around
that decision’s requirements and obtain confessions that are not made
knowingly, voluntarily, or intelligently. Even when police do their best to
honor the rights of suspects, the system still produces such inadmissible
confessions.

It is widely believed among those who study this issue that requiring audio
and video recordings of interrogations is the only way to ensure that
individual suspects’ rights are honored. If this sounds like a bleeding
heart pro-defendant stance, it isn’t. Recording interrogations also helps
police because it shows that they are acting in ways that protect suspects’
rights. Given that over 80 percent of suspects waive their Miranda rights and
talk, recording interrogations simply shows a court that the police acted
appropriately. When a suspect tries to get his confession thrown out by
claiming that he was mistreated, didn’t understand the warnings, or didn’t
waive his rights, the police will simply show the recording to the judge,
undermining the suspect’s story. Recordings don’t lie.

Recordings in the interrogation setting help suspects prove police
misconduct, but they also help police prove that the suspect’s rights were
protected. Recording is a win-win because it allows valid confessions to be
used against a suspect, and it also strikes a blow at police misconduct.
Should this system be exported to typical police-citizen encounters via
OMCs?

Maybe. Use of OMCs would provide a record of traffic stops and citizen
encounters, which would help to substantiate or refute charges of police
misconduct. In a world in which racial profiling, subtle violations of
citizens’ rights, and outright police brutality are realities, we might want
a recording. In a world in which citizens falsely accuse police of these
things, or misunderstand normal police conduct as illegal misconduct,
recordings will help police clear their names and keep any evidence they
find for use at trial. Is this a win-win situation?

Maybe not. Whether recording in the interrogation room or recording on the
street via OMCs work to produce positive results for citizens and police
alike depends upon how the recording is done, and upon who has the power
over the recording.

How are recordings done? In the interrogation context, some police
departments record everything, from the beginning of the conversation to the
end. Other departments record only the confession, which often comes after
hours of interrogation. The confession may appear to be voluntary, but this
might be the final result of a very abusive, unconstitutional, and
unrecorded, interrogation. The suspect may not know she is being recorded,
or the equipment may be obvious to her.

This fact may make a difference. The camera may be trained on the suspect
alone, but more often than not it is trained on the suspect and the
interrogating officer. This matters, since police can send subtle, inaudible
signals to suspects, which could lead to involuntary statements.

OMCs can be turned on and off at the officer’s discretion. If the officer
chooses not to record a traffic stop, he simply doesn’t turn the OMC on.
Furthermore, because the OMC is on the officer’s chest, it records only the
citizen, not the police officer. Who knows what the officer is doing behind
the camera?

Who has the power over the recording also makes a difference. In the
interrogation context, the suspect can invoke his right to silence or to an
attorney, and the interrogation must stop. The recording of the
interrogation of necessity also stops. In short, the suspect can choose not
to be recorded, and so is on an equal footing with the police. This matters
greatly, since the point of Miranda is to eliminate the inherent coercive
atmosphere of the interrogation room.

OMCs are very different. If an officer legally stops you in your car, you
don’t have the option to terminate the encounter. You must sit in your car
while the officer lectures you, writes you a ticket, and, perhaps, attempts
to obtain your consent to search your car. You cannot end this encounter,
and at present, you have no right to tell the officer to stop recording.
Unlike in the interrogation setting, only the officer has power over the
OMC.

This fact raises a host of constitutional questions. Does recording such a
traffic stop violate the Fourth Amendment’s prohibition on unreasonable
searches? Does the recording infringe upon our First Amendment rights? If we
end up saying something incriminating, does the recording violate our Fifth
Amendment right against self-incrimination? Does the recording somehow shock
the conscience enough so that our due process rights are violated?

Given the current legal landscape, I believe the answer to each of these
questions is No. If we are looking for a legal response to this troubling
trend toward surveillance, we should look to legislatures to regulate or
prohibit such filming. We can also look to the courts to interpret these
constitutional provisions in novel ways that protect citizens.

OMCs are concerning, and are part and parcel to the surveillance world we
live in today. They take their place alongside ATM cameras, the Internet,
and radar speed guns. We are always already being watched.

We should not, however, let our concern blind us to the possibilities.

It is, in general, a good thing for police to be watched. It is also a good
thing to have reliable, non-coerced evidence brought to bear against
defendants who have clearly committed some crime. OMCs offer the possibility
of achieving both of these results. We should think carefully about whether
and how to use OMCs, but we should welcome the chance to make policing
better for the cops, the citizens, and the suspects.

Posted by: Steven R. Morrison | May 23, 2013 5:17:21 PM

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