"Alaska's police get on board body camera trend," read the headline of an Alaska Dispatch News story on October 4th. The trend is national in scope with the Justice Department announcing last May a $20 million grant program for police body worn cameras -- and that's just part of an ambitious $263 million program to equip 50,000 officers. Departments around the country are scrambling for the federal money.
The Dispatch story also reported that police officials here say implementing body cameras isn't a big change given the long-standing use of vehicle dashboard cameras and audio recorders. That position is contradicted by national headlines heralding numerous thorny legal and legislative issues raised by police body cameras. Alaskans might want these issues addressed before the first lawsuit is filed (perhaps by officers against their department) or criminal case dismissed.
Police unions in several cities claim the cameras are a change in working conditions that must be negotiated. Officers worry supervisors could use video for fishing expeditions. Even the ACLU, a proponent of the cameras, acknowledges that continuous recording might infringe on officers' privacy or be contrary to good public policy. Consider: Officers in a patrol car or at the station getting to know each other, letting off steam about work or personal life, going to the bathroom. Officers' union activism or whistleblower communications.
Cameras can't currently respond to the above automatically. Officers will have to have some Off/On discretion to address these circumstances as well as citizens' privacy. That means specific written policies. Policies mean consequences for non-compliance which imply disciplinary actions and their attendant officer rights. Non-compliance isn't purely hypothetical. The Phoenix, Ariz., police department's grant-funded body camera project reported only a 50 percent compliance rate with camera policies.
Should officers be permitted to review camera video before answering Internal Affairs investigation questions? Should video be used to check on officers' work performance or workmen's compensation claims?
Police body camera video is a public record under Alaska statute and thus subject to inspection by any member of the public unless it meets a statutory exception. There is an exception for records or information compiled for law enforcement purposes -- if disclosure is shown to involve one of seven specified harms. Four of the listed harms require the agency show only that the harm could happen; three would require the agency show the harm would happen.
The question for policy makers is who pays for the storage, retention, review, redaction and production -- or litigation to fight production of body camera video? Showing one of the seven statutory harms might involve police, prosecutor or civil attorney preparation and court time. Any member of the public can request such footage. That includes the media or reality TV producers.
Take a department like Kodiak, with 8 patrol officers. Say the officers have the cameras on 32 out of every 40 hours, 46 weeks a year. That's nearly 12,000 hours of video for just one year that is potentially subject to public records disclosure requests. How many years does this information have to be retained? Grant money may pay for the cameras, but that's the least of the costs. Does grant money pay for the long-term costs?
Many states that decided to strap body cameras onto officers are scrambling after-the-fact to amend their public records laws to exempt the cameras' video. Not surprisingly, their efforts are getting mired down in push back from citizen activists, the media and groups like the ACLU.
Fourth Amendment privacy against government intrusion
Those most vocal for monitoring police misconduct are equally vehement that citizen privacy be protected. Much more than dash cams, body cameras will capture people at their worst -- impaired, abusive, profane, hysterical, devastated -- and most personal -- in domestic disturbances, as victims of sexual assault or child sexual abuse, in mental health crises and medical emergencies. Body cams will go into places where people have an expectation of privacy – like homes.
Under the "plain view doctrine," the U.S. Supreme Court has held that officers may generally record what they can see or hear from a place they have a lawful right to be without violating the Fourth Amendment. But what if:
The camera captures something the officer did not see or hear? Would this be more akin to thermal imaging from a public vantage point which the Supreme Court has ruled requires a warrant?
Something is seen or heard only by reviewing the tape, repeatedly, or in slow motion, or stop frame, or digitally enhancing it? Are these actions a separate search requiring a warrant?
The plain view exception to a warrant is usually challenged by criminal defendants. What about people who end up not being charged with any crime? What about victims of sensitive crimes like sexual assault or child sexual abuse? Will crime victims or witnesses have to worry about a court deciding whether their appearance on an officer's body camera video will end up on YouTube or the subject of a reality TV producer's FOIA request before deciding whether to call for help or cooperate?
Alaskas privacy law
Our state Supreme Court has repeatedly found that Alaskans have more privacy protection under our state constitution than that afforded by the U.S. Constitution.
Alaska has a one-party consent rule for secretly recording conversations. It's legal as long as one person consents. But our state Supreme Court ruled that state and local police must get a warrant to secretly record conversations -- even if an informant participating in the conversation consents to the recording.
The court has ruled the expectation of privacy does not apply when a subject knowingly talks to a police officer and the officer may, without the subject's knowledge or consent, record conversations. That may be true with traffic stops or other police-citizen contacts in public areas.
But what about when those body cameras start going into people's homes? Should Alaska officers have to advise their body camera is recording in a home? Before or after they turn it on? If they have to advise before they turn it on, be prepared for disputes about whether the advisement occurred and was heard and understood.
Video as evidence
Body camera video isn't just a report. It can become evidence in court. Proper chain of custody must be maintained. There must be technical controls to protect against tampering, destruction, unauthorized access. If a third-party cloud service is used for storage, encryption may need to be "end-to-end." (This means the only people who can view the information are the people communicating. No one else can access the cryptographic keys needed to decrypt the information—not even a company that runs the messaging service.)
To authenticate the video, the date, time and location of recording will have to be documented. A witness will have to verify the contents and relevant identities of those recorded and provide assurance the recording hasn't been edited or over-dubbed.
Prosecutors and attorneys representing officers and their departments in civil lawsuits may need expert witnesses who can explain the cameras' limitations, which include:
• Body cameras record only from a certain location and angle. They don't follow an officer's eyes. An officer may see things the camera doesn't or fail to see things the camera catches. The camera will show what happens in front of the officer, but not the officer.
• If the camera needs to be triggered before it records, it may miss a precipitating event that would provide greater context for the encounter.
• Weather or lighting conditions may obscure details from the camera in a manner different from eyesight.
• Tactile cues, like a person stiffening under an officer's hand on their arm, important to an officer's use of force decision may not be caught.
• A body camera doesn't take into account an officer's or witness' tunnel vision or auditory exclusion under stress.
If video footage becomes trial evidence, it will need to be retained as long as other evidence subject to an appeal and possible retrial.
The availability of body camera video may also entail legal duties. Proposals are already under way for:
• Rebuttable evidentiary presumptions in favor of criminal defendants who claim exculpatory evidence was not captured or was destroyed when an officer failed to record or interfered with the recording.
• Similar presumptions for civil plaintiffs suing the government, a police department or officers for damages based on police misconduct.
There is related precedent for excluding evidence that could have been captured by a body camera. In the case of custodial interviews, the Alaska state Supreme Court has ruled that such evidence is inadmissible if not recorded, absent a specified exception.
Finally, there are the police and prosecution's duty under the Supreme Court cases of Giglio and Brady to turn over evidence to a criminal defendant that might be used to impeach the credibility of a prosecution witness, including police officers. This would include body camera evidence.
The Brady and Giglio obligations are not limited to the officer's conduct in that particular case but could extend to any misconduct relevant to a defense or the officer's credibility. Civil litigants may be entitled to even more, under civil rules of procedure.
There is a human tendency to grab a quick fix for complex problems. Body cameras are seen by some as the panacea for police-community relations. They have the laudable goals of monitoring and deterring police misconduct and protecting police against false or frivolous allegations. But policy makers would be well-advised to think before yelling, "Camera, action!" Otherwise the panacea may become a Pandora's Box.
Val Van Brocklin was a state and federal prosecutor in Alaska. She now trains and writes nationally on criminal justice and law enforcement topics. She is an adjunct instructor at the Alaska Department of Public Safety Academy and lives in Anchorage.