DOJ lawyers, Portland police union president discuss best practices for body cameras
As Portland works towards implementing a body-worn camera program, important policy questions remain
By Maxine Bernstein
PORTLAND, Ore. — A public forum Sunday night provided a rare public exchange between the president of the Portland police union and lawyers from the U.S. Department of Justice about whether officers should be allowed to view footage from body cameras before they give a statement to investigators on their use of force.
The Portland Committee on Community-Engaged Policing held the forum just days before the City Council considers whether to give staff the green light to seek competitive bids from vendors on a contract of up to $2.6 million to start a body camera program at the Police Bureau.
A tentative timetable would have a pilot program beginning in August and running for two months if the city negotiates a policy on the camera use with the union that the Justice Department accepts, according to Tammy Mayer, a senior program manager for the Police Bureau.
About 90 people tuned into the forum on Zoom, mostly to ask questions about the camera plans — put off for years by city officials but now required by the Justice Department for the city to return to compliance with its 2014 settlement with the federal government on police use of excessive force. Portland remains the only city of the 75 largest municipal police agencies in the nation without body cameras, according to the Justice Department.
The city remains in negotiations with the police union over the parameters of equipping officers with body cameras. One of the points of greatest contention is if officers should be allowed to preview camera footage before giving a statement or interview to an investigator or writing a report.
Sgt. Aaron Schmautz, president of the Portland Police Association, argued that allowing officers to view the camera footage beforehand would allow them to consider all the evidence and write the most accurate and thorough report of what occurred.
Schmautz said most agencies of “any substantial size” in Oregon, including Oregon State Police, the Clackamas and Washington county sheriff’s offices, Eugene, Beaverton, Gresham, Hillsboro, Medford and Bend police departments, allow officers to review their camera video before writing reports.
Schmautz also said 20 of the 22 largest police agencies in the nation allow the same, such as those in New York, Boston, Los Angeles, Seattle, Denver and Detroit.
Jared Hager, an assistant U.S. attorney representing the Justice Department, shot back that just because it may be “common practice” doesn’t mean it’s the best practice, particularly when the equipment is now required as a remedy to the Police Bureau’s failure to properly document, review and analyze officer use of force.
It simply reflects the strength of their police unions in bargaining, Hager said.
The Justice Department has recommended to the city that when a Portland police officer uses force, the officer shouldn’t review any of the recordings before first reporting and then completing all reports or interviews associated with the incident.
Officers who use deadly force or are involved in a death in custody case also shouldn’t view any of the footage until they give an interview to an investigator and only after they get permission from the local prosecutor, the federal lawyers suggested. Local prosecutors may not, for example, want an officer to view the footage before testifying before a grand jury.
The Justice Department’s proposal draws from policies used by Baltimore and Atlanta police, they said.
In some cases, they said, officers could review a recording after completing their required reports and interviews and prepare separate reports with additional information.
Schmautz responded that Seattle police, who are under a federal consent decree, are among the agencies allowing review of footage before writing a report or an interview.
A member of the public pressed Schmautz to explain how the review of video before an officer makes a report would help reduce civil rights violations by police.
Schmautz said it would allow the officer to give the “most comprehensive and best reflection of what occurred.”
An officer in a life-threatening, violent encounter may experience “tunnel vision” and forget a part of what happened and shouldn’t face discipline for potentially omitting something in a report or interview that shows up in the video, he said. He argued that multiple reports would be confusing and create doubt.
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If our officers are engaged in misconduct, the video will capture that, Schmautz said.
But Hager and fellow Justice Department lawyer Jonas Geissler said viewing video of an encounter would taint the subjective reasoning by officers for why they acted as they did at the time.
Whether an officer acted reasonably “all depends on what’s in the officer’s head at the time” force was used, Hager said.
Geissler gave an example of a 2017 police shooting of an armed bank robbery suspect in North Portland as he raised his hand from his pocket. The officer testified to a grand jury about what he perceived as the threat at the time. The officer told grand jurors he believed the black object in the suspect’s hand was a gun. He fired and wounded the robbery suspect, striking him in his upper right bicep, left abdomen and right big toe, according to the testimony.
If he had seen the video ahead of his testimony showing that the suspect didn’t pull a gun but his wallet from his pocket, it “would have tainted” his subjective impression of his perceived threat that ultimately justified” the use of force, Geissler said.
Officers should view the video afterwards and then write a supplemental report explaining what they saw differently when they reviewed the video, he said.
“It’s a fair process to both sides but also affords the most accurate record,” Geissler said.
Heidi Brown, a chief deputy city attorney, said other policy areas that will be negotiated in current city-union talks include whether the footage and recordings should be maintained by a third-party vendor under contract to the city, how long the footage should be retained and when an officer must activate the cameras.
The police union contract talks are in mediation. After holding 11 bargaining sessions last year, the union sought moving the talks to mediation in June. Mediation can continue or one party can initiate the next step by declaring an impasse and demand to go to interest arbitration. If an impasse is declared, each side submits a written final offer and the contract talks head to an arbitrator.
The City Council is set to take testimony Wednesday on whether to authorize city staff to seek vendor proposals to outfit 636 officers with body cameras. The Justice Department has recommended the city outfit all uniformed patrol officers, sergeants and any officers regardless of rank who are part of tactical, traffic or crowd-control operations.
The council may continue to seek additional input and delay voting to authorize vendor requests until its Feb. 2 meeting.
Mayer, the bureau’s project manager, said her goal was to make public the request for proposals by the end of January or early February. It will be open for six weeks.
A tentative schedule would allow for the city to narrow the field to two to three vendors to demonstrate their products in mid-April. Two community members would be selected to be part of a team to help screen potential vendors.
The city then would select a top vendor to pilot the equipment in August and September only if the city has successfully negotiated a policy on the camera use by then that is approved by the Justice Department.
“The policy piece has to be in place before we put a pilot on the street,” Mayer said.
If so, full deployment of the cameras could start by March 2023, she said.
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