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Portland PD union, city submit different BWC proposals on when cops can review footage

Portland remains the only city of the 75 largest municipal police agencies in the nation without body cameras

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The union’s proposal adds a clause that officers shall not view recordings that aren’t related to an incident in which they participated or were assigned, unless authorized by the chief or a designee.

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By Maxine Bernstein
oregonlive.com

PORTLAND, Ore. — The Portland police union wants officers to be able to review recordings from their own body cameras before writing a report of any kind, before an investigation of any kind or before providing testimony in any use-of-force review, criminal investigation or civil or administrative case.

The city of Portland says officers could review the recordings before writing a police report when they don’t use force or, if they use non-deadly force, only after they describe what occurred to a supervisor and that statement itself is captured on a body-worn camera.

But if deadly force is used or a person dies in police custody, under the city’s proposal, officers should not have access to any body camera footage until authorized by the chief or designee.

The two drastically different proposals have been submitted to the state Employment Relations Board for an arbitrator to break a stalemate that’s lasted for months and continues to delay the state’s largest police department from equipping its officers with the technology.

Portland remains the only city of the 75 largest municipal police agencies in the nation without body cameras, according to the U.S. Department of Justice.

And that’s despite the Justice Department’s order last year that the Police Bureau equip its officers with the cameras as a remedy to meet the requirements of a 2014 settlement agreement that mandated reforms to police policy, training and oversight.

The judge overseeing the settlement had voiced support for the technology at a hearing nine years ago and last April approved an amendment to the settlement requiring the city to outfit officers with cameras and adopt an appropriate policy governing their use.

The order approved by U.S. District Judge Michael H. Simon came after police failed to meet key requirements of the settlement, including inappropriate use and management of force during 2020′s racial justice protests, inadequate training and subpar supervision of officers

Sgt. Aaron Schmautz, president of the Portland Police Association, said Friday that “utilizing available evidence, including video, to complete comprehensive reports is consistent with every major agency in the State of Oregon with body cameras, as well as the vast majority of national agencies.”

Schmautz has 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.

Twenty 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, according to Schmautz.

[RELATED: DOJ lawyers, Portland police union president discuss best practices for body cameras]

The union’s proposal adds a clause that officers shall not view recordings that aren’t related to an incident in which they participated or were assigned, unless authorized by the chief or a designee.

The city has followed guidance from Justice Department lawyers, who have urged that officers not be allowed to view the footage before writing a report in deadly force cases. The officers could write a supplemental report after viewing the footage, the Justice Department has recommended.

Allowing officers to see video of an encounter would taint their subjective reasoning for why they acted as they did at the time, the government lawyers contend.

Whether an officer acted reasonably “all depends on what’s in the officer’s head at the time” they used force, Jared Hager, an assistant U.S. attorney representing the Justice Department, argued in a city forum last year.

Just because it may be “common practice” to view the video before police write reports doesn’t mean it’s the best practice, Hager said, 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 has said.

The Justice Department’s proposal draws from policies used by Baltimore and Atlanta police, Hager said.

The disputed policies now go to a state arbitrator, which could add another six to nine months to the process. Once an arbitrator rules, the Justice Department also has reserved the right to approve or reject any policy, creating the possibility of even more delay if federal lawyers take issue with it and seek a court order.

[RELATED: How to best (and defensibly) use body-worn camera video during report writing]

The city and union, though, have agreed on several points: Who would wear the cameras, when they would be activated and when shutting off a camera recording would be prohibited.

All on-duty, uniformed sworn officers working patrol and traffic, members of specialty units when working in uniform for enforcement or attending community events and members of the Special Emergency Response Team would wear the cameras, as well as sworn bureau members not in uniform when “engaging in police action.” Detectives conducting interviews, for example, wouldn’t have body cameras on, under the tentative policy agreement.

Those exempt from wearing the cameras would be forensic criminalists who photograph and collect evidence at a scene, officers in the bureau’s air support unit, bomb disposal unit, any officers working in plainclothes or in undercover assignments and all supervisors from the captain’s rank and higher, unless they’re involved in a police action.

The body cameras would automatically activate via a Bluetooth signal when a police car’s emergency vehicle lights go on or if an officer draws a Taser or gun from their holster, according to the tentative agreement.

Officers would be required to manually put on their body cameras when dispatched or responding to a call for service or attempting to do a traffic or pedestrian stop or search. The cameras also must be on when an officer is interviewing a juvenile outside of a police facility in connection with an investigation of a misdemeanor or felony crime, or when an officer makes contact with a person suspected of committing an offense. All members of the tactical Special Emergency Response Team also must activate their cameras when arriving at a scene.

[RELATED: Majority of community members surveyed don’t want Portland police watching body camera videos before writing reports]

They must not have their cameras on when interviewing victims of sexual assault, trafficking or child abuse or when inside a medical or mental health facility unless there for a legitimate law enforcement purpose or responding to a call in progress at the location.

If officers shut off their camera before the end of a call, they will be required to document their reason for doing so.

During the first 60 days of wearing the cameras, officers won’t be subject to discipline if they don’t intentionally violate the terms of the policy.

Only the Police Bureau’s Records Division would be authorized to copy, share or publicly release the body camera recordings. Former Commissioner Jo Ann Hardesty and some community activists had called for a third party to maintain the footage.

The city and union also reached an initial, tentative agreement on what a pilot program would look like once a policy is adopted. Under a pilot, officers from Central Precinct and the Focused Intervention Team, a team that started in January 2022 to address gun violence, would be outfitted with the cameras for two months. Changes to policy could be made once the pilot program is completed.

NEXT: How to buy body-worn cameras (eBook)

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