The ACLU of Massachusetts and the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley’s School of Law recently released a report entitled “No Tape, No Testimony: How Courts Can Ensure the Responsible Use of Body Cameras.”
An article about the report — also authored by the ACLU — said that “the new report proposes a model instruction that would discourage body camera mishaps by empowering juries to devalue or even disregard a police officer’s testimony if, in the jury’s view, the officer unjustifiably failed to record an interaction with a civilian.”
Interestingly, the word “unjustifiably” does not appear in the actual report — just in the article about it.
The ACLU concluded that “by issuing this instruction, state courts could improve the odds that violent police-civilian encounters will be recorded, and that courts will just resolve disputes arising from those incidents.”
Recognizing technology’s limitations
The notion of “no tape, no testimony” is in contravention of the existing case law from the United States Supreme Court which governs how juries are to be instructed before deliberations.
Late last year I wrote a piece for PoliceOne’s 2016 Guide to Body-Worn Cameras entitled “8 Body Camera Concerns Police and the Public Need to Know” in which I outline some (uh… eight) shortcomings of this technology. The conclusion section reads:
The public — juries in particular — will need to be regularly reminded that officers’ actions are judged based on the objectively reasonable standard as set forth in Graham v. Connor. In that decision, the Court cautioned that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
As body-worn camera footage is made available and viewed in court, consideration for what the officer was seeing, hearing, and experiencing at the time of the event is what’s important, not what the camera recorded. The camera simply cannot record the totality of the circumstances.
Body-worn cameras are indisputably the future of law enforcement — there will soon come a day when nearly every cop in America is wearing one. They will be a great addition to officers’ duty gear, and will help departments build stronger and more positive relationships with their citizens. However, while agencies deploy body-worn cameras, they must understand — and educate the public — about what this new technology can, and more importantly, cannot do.
The ACLU report states that “if it finds that the police unreasonably failed to create or preserve a video of a police-civilian encounter, it can devalue an officer’s testimony…”
What, precisely, would be unreasonable? Few departments have an absolute requirement that all encounters be recorded, allowing officers to use discretion in determining when it is either unnecessary or counterproductive to record.
To their credit, the ACLU does recognize what would constitute a reasonable failure to produce a recording, stating that an officer who keeps the camera off due to respect for civilian privacy, “the officer should suffer no evidentiary consequence in court.”
In terms of what would be considered unreasonable, the ACLU report states that “if the jury finds that the case involves bad faith, such as the outright sabotage of body cameras, then it should be instructed to disregard officer testimony altogether.”
But even in this worst possible case scenario — in which an officer willfully turns off a camera or intentionally does not turn it on — juries should take that fact into consideration, but not discount the officer’s testimony altogether.
Creating the perception that video evidence trumps the testimony of a sworn law enforcement officer is problematic. Juries need to hear all evidence and decide on the credibility of all the witnesses, including officers who do not — for whatever reason — have associated BWC video.
It is important to note the fact that cameras break and they get dislodged from the body during physical altercations. They also sometimes don’t switch on when you try to switch them on (I’ve personally seen this happen during product testing on three different models).
Most importantly, in dynamic, rapidly unfolding, high-stress events, officers simply may not have time to flip a switch on a camera when the only switch that matters is the one inside the trigger guard.
Using the Keith Scott example
The ACLU placed Keith Lamont Scott at the top of its list of “civilians reportedly killed by officers wearing body cameras that were not turned on” and its “no tape, no testimony” proposal (and the associated article) came out shortly after Mecklenburg County (N.C.) District Attorney Andrew Murray said the shooting of Scott was legally justified and the officer who fired the fatal shot will not face criminal charges.
This timing may be purely coincidental, but let’s use the Scott example to discuss some of the ways in which reliance on an officer’s BWC — as opposed to his testimony and other available evidence — is flawed.
According to reports, the BWC mounted to Officer Brentley Vinson was not activated, but the BWC of at least one of the other responding officers was working and recorded the final moments of Scott’s life. There was also a dash cam recording of the incident, as well as the cell phone footage taken by Scott’s wife.
None of the videos are clear enough to make a judgement about whether or not Scott could have been perceived by any of the officers present to be a threat. That determination has to be made on the basis of the officers’ tesimony about their perception of the event as it unfolded.
In a letter to the State Bureau of Investigation and the Charlotte police, District Attorney Murray said, “Someone with a gun in his hand who does not comply with police commands to drop the gun can be reasonably considered to be an imminent deadly threat to officers… reaction-time studies show that a person can raise his gun and harm or kill officers before an officer could react to the threat.”
What those video recordings do reveal, however, is that Scott repeatedly failed to comply with commands to drop the gun, and that he was moving away from his SUV at the time that he was shot. The video also shows officers cuffing Scott and immediately rendering aid, checking him for exit wounds and placing pressure on all three entry wounds.
Video surveillance footage from a convenience store just before the fatal OIS showed Scott with a bulge in his pants at the ankle, consistent with accounts that Scott was wearing an ankle holster.
This leads us to perhaps the most important piece of evidence in the Scott case. It is not video, but good old fashioned physical evidence. Scott’s gun — a Colt .380 autoloader — was cocked, with the safety off and a round in the chamber. Analysis revealed Scott’s DNA on the weapon, and an investigation concluded that Scott had illegally purchased the weapon 18 days before his death.
It merits mention that because he had a history of being unstable, his wife Rakeyia had forbade Scott from owning a gun. According to District Attorney Murray, the couple had an argument via text message about Scott’s new gun.
Considering the totality of the circumstances
Let’s conclude with an unequivocal statement of fact: the testimony of a police officer in any court proceeding should be regarded as unimpeachable unless there is clear and verifiable evidence to the contrary. Whether or not a camera captures precisely the same thing as the officer’s memory of the event is legally irrelevant — Graham is clear in stating that an officer must be judged on what his or her perception of the event was at the time of the incident. Period. End of story.
Remember, there are a dozen (or more) high-definition cameras — operated by professional videographers and television producers sitting “in the truck” — at any given sporting even such as an NFL football game. When a play is disputed, the officials have access to powerful technology that enables them to zoom in on slow-motion video to determine the outcome. And even they get the call wrong at times.
Simply said, the fact that cameras are present and videos are later made available is just one consideration for a jury — and it’s almost always not even the most important consideration.
Body-worn cameras have their place. They do provide additional evidence for consideration by a jury. But they are not the be-all, end-all solution that some purport them to be. Juries must still determine guilt or innocence based on the totality of the circumstances and all available evidence at hand, including officer testimony.
If the ACLU wants to change the way in which juries are instructed to judge an officer’s actions — particularly in a deadly force encounter — they will need the Court to issue a decision that amends or replaces Graham v. Connor.
