By Police1 Staff
Consent to record policies differ from one state to the next and depend on state laws and the preferences of each individual agency. A written policy is necessary to outline when officers should and shouldn’t be recording and when it should be known to the public that they are in fact being recorded.
Here are three considerations each agency should address when drafting their consent to record policies.
1. Know your state’s Consent Law
States have either a one- or two-party consent law, meaning officers don’t need to inform subjects of their body camera, or the officer is required by law to inform subjects that they are recording and obtain the person’s consent to record.
For obvious reasons, states with two-party consent laws have a more difficult time implementing body camera programs, but some have successfully worked with their state legislatures to have the consent requirement waived, according to a study done by PERF.
A one-party consent law doesn’t mean don’t let the public know you’re recording. In fact many departments do just the opposite.
Chief Ken Miller of Greensboro (N.C.) said he believes that the knowledge that cameras are running can help defuse potentially confrontational situations and improve behavior from all parties.
However, many police officials in one-party consent states don’t explicitly instruct officers to inform people that they are recording, leaving it up to the officers’ discretion.
2. Defining Privacy and When to Record
Should your officers have the right to record while inside a subject’s home? Many agencies have stated in their policies that officers have the right to record inside a private home as long as they have a legal right to be there. A valid search warrant or consent of the resident, in this case, means consent to record what is inside the home.
“If an officer enters someone’s home, they document the condition of the home, especially if it’s a case about a child or involves domestic violence or physical injury,” explained Salt Lake City (Utah) Chief Chris Burbank. “ So videos are just a technologically advanced type of police report that should be treated no differently from an initial contact form that we currently fill out every day.”
Another instance where keeping the camera rolling comes into question is during a rape or child abuse case, or when a victim on the scene is unclothed.
“In a sensitive investigation, such as a rape or child abuse case, if you have a victim who doesn’t want to be recorded, I think you have to take that into account,” said LAPD Police Chief Charlie Beck. “There are times when you’ve got to give your officers some discretion to turn the camera off. Of course, the officers should be required to articulate why they’re not recording or why they’re shutting it off.”
Some agencies limit body-worn camera recordings to calls for service and similar police contacts, rather than recording every encounter with the public, so that officers don’t feel compelled to record the kinds of casual conversations that are central to building informal relationships within the community.
“If officers encounter an informant or witness who isn’t comfortable being recorded, they have to decide whether obtaining the information outweighs recording the statement,” said Lieutenant Rankin of Mesa (Ariz.) “If so, our officers can either turn the camera off or position the camera so that they capture audio but not video. People usually feel more comfortable with just the audio.”
If you choose not to enforce recording at all times, state in the policy that recording will not be required if it would be unsafe, impossible, or impractical; this will both increase officer safety and acknowledge to all that recording may not be possible in every situation.
Your policy should clearly define what constitutes a law enforcement-related encounter or activity. A specific list of those activities should be available to officers in order to boost their confidence for when to record and when (if at all) to turn their cameras off.
Many agencies give a general recommendation to officers that when they are in doubt, they should record.
3. Covering bases when camera is shut off
One of the biggest concerns officers have expressed when body camera footage is asked for in legal proceedings is what happens when they’ve shut the camera off.
What many officials are doing when drafting their policies is requiring officers to document, on camera or in writing, the reasons why the officer deactivated the camera in situations that are otherwise required to be recorded.
Requiring officers to document why they deactivated a camera promotes officer accountability.