InfoDoc on Rochester's failed Body Worn Camera draft policy

Failure #2: Officers have discretion to turn the cameras on and off. (Including your private residence!) We must demand that the cameras be always on or that individual officers cannot have control!

According to the BWC draft policy[1], "members assigned a BWC will activate it and record all activities..." which means that the individual officers will have the power to turn the cameras on and off at their discretion. This leaves a wide margin of potential abuse for officers who may be operating in an illegal or abusive manner. Again and again, Rochester Indymedia has heard from people that the cameras must remain on all the time, or at the very least, individual officers must not have the ability to turn the cameras on and off.

There's also the issue of police discretion when BWCs are on in private residences. There is no mention of what is and is not permitted to be filmed inside a private residence, where individual privacy rights are very different from street or public interactions. Assuming that the cameras have to remain on, if the officer did not get consent to record, on film, within a private residence, then the footage would be deleted or, at least, it would be inadmissible in court.

We must demand that the cameras remain on all the time or that the individual officers have no ability to turn the camera on and off.

Failure #3: Police conducting investigations into police misconduct are prohibited from using their body cameras. We must demand that police turn the cameras on for both civilian and police investigations!

The BWC draft policy[2] notes that officers are required to have their cameras on during calls for service or self-initiated interactions with civilians, enforcement activity, Quality of Service Inquiries, pursuit driving, foot pursuits, prisoner transports, when in proximity to a prisoner, certain identification procedures, searches and seizures, traffic stops, vehicle checkpoints, and civilian transports. These are all civilian interactions with officers.

However, when it comes to investigatory action into police misconduct conducted by the internal affairs section of the department, Professional Standards Section, the BWC draft policy[3], states, "Members will not record with BWCs interviews relating to departmental investigations being conducted by PSS or by any other section performing similar functions."

In the case of civilian criminal matters, police have full discretion to use BWCs. In fact, in many interactions with the public they are required, according to the draft BWC policy[4], to turn their cameras on. That requirement ends as soon as an investigation is focused on police misconduct. If we value integrity and fairness, two terms PSS loves to talk about, then it is imperative that BWCs be turned on during police investigations into police misconduct. We must demand that the cameras stay on when criminal investigations are occurring–regardless of whether they civilian or police in nature. No exceptions.

Failure #4: BWCs are in the off position unless otherwise ordered when the SWAT Team, Bomb Squad, and Crisis Negotiation Team are deployed. We must demand that the cameras be on when these "Special Teams" are deployed!

If the above listed units are called to specific situations, according to the BWC draft policy[5], these teams "will not record with a BWC" unless "authorized by the Chief of Police, a Deputy Chief, Division Commander, or the Team Commander."

Let's start with the SWAT team, part of the "Special Teams" mentioned above. The Special Weapons and Tactics (SWAT) team[6] is charged with responding to "hostage incidents, barricaded armed subjects, high-risk warrant service, high risk suspect apprehension, protection of dignitaries, and any other situations as determined by the Chief of Police" and other high ranking officers in the department.

Their duties also include evicting grandmothers and families–such as Catherine Lennon–from their homes under fraudulent orders from bailed out banks and conducting botched drug raids based on bad intelligence that lead to the killing of innocent people. Lives–along with homes and personal property–are destroyed with no reparations to the victims of this militarized, police violence.

Concerning drug raids, it's worth quoting Michelle Alexander in full, from her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, regarding the rise of SWAT teams and their primary use since the 1980s (pages 74 and 75):

SWAT teams originated in the 1960s and gradually became more common in the 1970s, but until the drug war, they were used rarely, primarily for extraordinary emergency situations such as hostage takings, hijackings, or prison escapes. That changes in the 1980s, when local law enforcement agencies suddenly had access to cash and military equipment specifically for the purpose of conducting drug raids.

Today, the most common use of SWAT teams is to serve narcotics warrants, usually with forced, unannounced entry into the home. In fact, in some jurisdictions drug warrants are served only [sic] by SWAT teams–regardless of the nature of the alleged drug crime. As the Miami Herald reported in 2002, "Police say they want [SWAT teams] in case of a hostage situation or a Columbine-type incident, but in practice the teams are used mainly to serve search warrants on suspected drug dealers. Some of these searches yield as little as a few grams of cocaine or marijuana."

The rate of increase in the use of SWAT teams has been astonishing. In 1972, there were just a few hundred paramilitary drug raids per year in the United States. By the end of the 1980s, there were three thousand annual SWAT deployments, by 1996 there were thirty thousand, and by 2001 there were forty thousand. The escalation of military force was quite dramatic in cities throughout the United States. In the city of Minneapolis, Minnesota, for example, its SWAT team was deployed on no-knock warrants thirty-five times in 1986, but in 1996 that same team was deployed for drug raids more than seven hundred times.

These encounters, Alexander notes, "are not polite encounters." Police conduct raids in the middle of the night or in the early morning hours by blasting into homes, "throwing grenades, shouting and pointing guns and rifles at anyone inside, often including young children." She continued that in recent years, "dozens of people have been killed by police in the course of these raids, including elderly grandparents and those who are completely innocent of any crime."

Lydia Boston and her young children were traumatized in a drug raid based on bad intelligence in 2011

When the SWAT team is deployed, we must demand that BWCs be on. The targets of these raids must have access to BWC footage to be used as evidence in civil and criminal suits brought against the department, especially when things go wrong.

With regard to the Bomb Squad and the Crisis Negotiation Team, these "Special Teams" often work in tandem with the SWAT team and should not be exempted from having their cameras on as the default setting. In fact, under General Order 630[7], the SWAT team must "maintain close working relationships with specialized teams (e.g., the Crisis Negotiation Team (CNT), the K-9 Unit and the Bomb Squad)" as well as conduct joint training exercises at least once a year. Regardless of whether those other "Special Teams" are working with the SWAT team, the cameras must be on.

Let's assume that the cameras are in the default on position; if a supervisor orders the cameras off, then the burden of proof would be on the police to show why turning the cameras off was imperative–and if it can't be shown why the cameras had to be turned off, then the presumption of guilt rests with the individual officers and their supervisors, not the victims of police action.

For the reasons stated above, we must demand that the cameras are in the default on position when any of the "Special Teams" are deployed.

Failure #5: BWCs are in the off position unless otherwise ordered when the Mobile Field Force (MFF), another assault unit of the RPD, is deployed to protests, demonstrations, and areas of civil disorder. We must demand that the cameras be on when the MFF is deployed!

The Mobile Field Force (MFF) is a beast unto itself. If the MFF and / or the Grenadier team is deployed, according to the BWC draft policy[8], these teams "will record with assigned BWCs" as "directed by a supervisor and/or in accordance with an operational directive." Again, the camera is in the default off position unless the officers are directed otherwise.

Rochester Police Department General Order 605[9] defines the MFF force as, "a specially trained group personnel assigned to provide rapid, organized, and disciplined response to civil disorder, crowd control, or other tactical situations."

Aside from the problem of police determining the definitions of "civil disorder," "crowd control," and "other tactical situations," protected First Amendment activities such as protests and demonstrations–where the likelihood of police violence is high–the cameras must be in the default on mode. Otherwise, you get situations like the police riot against anti-war protesters on the Main Street bridge in 2009 where police claimed they had to intervene violently because protesters blocked a fire truck. Video evidence was offered contrary to the police lie, but the mainstream news agencies refused to report on the truth of the matter.

The policing of First Amendment activities–by such heavily armed police–where body cameras are in the default off position, is an invitation for abuse of power and brutality. In all of the above situations, we demand that the cameras must be in the default on position.

Failure #6: Officers are allowed to review their own footage when writing their reports–a potentially abusive situation. We must demand that officers not be allowed to review their own footage when preparing reports!

According to the BWC draft policy[10], members can view their BWC recordings "if available" in order to "assist in accurate reporting." Police generally write their reports hours or days after the incident. Each time someone recalls a memory, it changes a little. Memory recall isn't perfect. 

In the BWC draft policy[11], under the section about officers having access to footage while writing their reports, the policy notes, "the purpose of using BWC recordings in writing reports is to maximize the accuracy of the report—not to replace the member’s independent recollection and perception of an event." Except that while the police want us to take their word on this, the reality doesn't bear fruit.

With the acknowledgement that recall isn't 100% dependable, reports are more accurate the closer in time they are written to the actual event. The problem with having officers review video as they write their reports–up to 24 hours or more after the incident–is that the review of the video corrupts their memory and their brains start to work out narratives of what happened in relation to what the video shows rather than what they recall (and did) without the aid of the video.

In abusive situations, officers might engage in misconduct and intentionally rewrite their reports to reflect that misconduct in a more favorable light–obfuscating the truth in the process.

In one national case, that of Laquan McDonald, police claimed in initial reports that Mr. McDonald was going down Pulaski Road stabbing car tires with a knife. According to the Chicago Tribune article linked above, Fraternal Order of Police spokesperson Pat Camden claimed that the teenager had a blank, "100-yard stare" and that he was non-responsive to police orders after allegedly damaging a police cruiser.

Mr. McDonald then "lunged at police, and one of the officers opened fire," according to police. The truth of these statements came out a year later after a line officer informed Jamie Kalven, an investigative journalist, of hidden and nondisclosed footage. Mr. Kalven pushed and pushed with other activists and family members until the police and the city were compelled by a judge to release the footage.

Contrary to police narratives and official reports, Mr. McDonald did not lunge at cops–he was walking calmly away from them with his hands at his sides. The 17-year-old Black teenager was then gunned down by Chicago Police Department officer Jason Van Dyke with 16 bullets–many of them entering his body after he was wounded and on the ground.

It's cases like Mr. McDonald's that make the public skeptical of police having access to their own footage. Granted, the cover-up began immediately after Mr. McDonald's murder (with police going to a nearby Burger King and deleting some 86 minutes of footage from the chain's security system) and not during the writing of reports, but in the end, the false narrative and police reports all conspired against what really happened that night.

Locally, people have been arrested and held in the backseats of patrol cars, while officers conspired to come up with a favorable police narrative of what happened as well as determining charges for the arrestees. Some examples of this include the arrest of  Willie Joe Lightfoot, the arrests of several anti-war demonstrators after a police riot in 2009, and the police union releasing false statements after the DA withdrew charges against Emily Good who was video taping a racially motivated traffic stop in front of her home on Aldine Street and was arrested for doing so by Mario "Cowboy" Masic.

Is there a compromise position on this? The Washington Post published an article describing a compromise position: officers write an initial report before viewing the video and then write a follow-up report after viewing the video where the officer would "acknowledge and attempt to explain any discrepancies between the video and the initial report." The second report would be used in court. This is an interesting compromise and certainly not what the BWC draft policy is advocating for here in Rochester. The cops want full access to BWC footage while they write their reports. We must demand that officers have no access to the videos on their BWCs. The temptation for abuse is too great.

Failure #7: The draft policy gives the District Attorney redacting power and direct access to BWC footage; all other lawyers must go through a longer, slower process! We must demand that the same process be used for all lawyers or remove the special access granted to the DA!

The BWC draft policy[12] contains a streamlined process for the District Attorney (DA) to have direct access to all BWC footage in addition to redacting power. Under Subsection A, number 1, the policy states that the City's Information Technology department and the Research and Evaluation Section (R&E) of the RPD will "provide direct access to MCDA [Monroe County District Attorney] to obtain BWC recordings stored in RPD's BWC System needed for criminal prosecution."

The draft policy goes on to state that the "MCDA will directly provide defendants with copies of BWC recordings," and here's the kicker, "as it [the DA] deems necessary." The term "necessary" is never defined. This creates a problem wherein the DA could know of certain footage but refuse to hand it over as the DA deems it not necessary–when in fact, it might be very necessary.

A third point in the process is that the DA "will be responsible for any required redactions" that the DA "provides to defendants." The terms "required" and "redactions" are not defined nor is there any process or standard of what would be "required" to be blacked out or fuzzed out–redacted–in these videos. An amazing amount of disproportional power is vested with the DA and the policy doesn't even define the terms of the power it is granting to the DA.

Redacting raises all kinds of questions: How does redaction work? Will it include facial blurring, voice scrambling, omitting sections of video entirely? Does redacting change the original footage or will an unredacted copy also be kept? What will be redacted and under what circumstances? Who is R&E and / or the RPD will have the responsibility to redact? If the DA and the Public Defender are given authority to redact, what guidelines for redaction will they be using and who will be responsible for ensuring redaction happens accurately and fairly? Who will have access to unredacted footage? For how long? And where will it be stored? The draft policy offers no answers to the questions above. Redaction doesn't promote transparency or accountability, but rather state secrecy.

Finally, the last step of the process states that the R&E section of the police department will be at the disposal of the DA as needed to "ensure necessary BWC recordings are obtained" by the DA. Basically, the police section that works on the BWC system is at the disposal of the DA when it comes to tracking down BWC footage.

If we scroll down the BWC draft policy[13] to subsection C, Defense Subpoenas or Demands in Criminal Cases, we very clearly see a different and more scrutinized process.

Instead of the above process, all defense subpoenas or demands in criminal proceedings by lawyers outside of the DA's office for BWC footage would go to the R&E section. They, in turn, would consult with the city's law department and the "appropriate prosecuting office" regarding the request. From there, R&E would identify the BWC footage that related to the demand or subpoena. Once the footage is identified, R&E would send copies of the requested footage to the defense attorney or office as "advised by the City Law Department and / or the prosecuting office." However, before any such copies are turned over to the defense, R&E will consult with the city's law department as well as the prosecuting office to "determine if any redactions may be required." R&E would follow their "legal guidance" concerning redacting. Finally, any copied BWC footage that was sent to the defense would also be sent to the "appropriate prosecuting office."

Again, the terms "redacting" and "required" are never defined. And again, any demands or subpoenas for BWC footage would go through the DA's or prosecuting attorney's office. Any "required redactions" would be made before the defense would be sent a copy of the footage and it appears that the defense attorney or office has no recourse to challenge any of the, as of now, undefined "required redactions." The other piece that is missing from this process is a time table: how long does each step take and when can the defense expect to get copies of footage? Will the defense get an unredacted version of the video? Without the above failures resolved, the power is solely held in the hands of the state with no recourse should a subpoena or demand be denied.

That's why we must demand that the process for obtaining BWC footage be the same for both the DA and all lawyers, or that there be no special, streamlined process for the DA's office.

Failure #8: The draft policy continually uses broad and undefined terms like "safe" and "practical." We must demand that this language be struck from the policy or that such language is clearly defined and accompanied by examples and guidelines.

The first instance of the terms "safe" and "practical" can be found on page 5 of the draft policy[14]. "Safe" and "practical" are not legally defined terms and are not defined in the draft policy. What do these terms mean? What constitutes "safe and practical"? Officer safety is already prioritized in civilian-police interactions. "Practical" is a broad term that can be a synonym for "convenient." These terms should not be used as the standard for officers' discretion in operating the BWCs and following procedures. The language potentially allows officers to use unbridled discretion for a number of other factors that amounts to officer choice about when cameras are on or off.

Therefore, we must demand that this language be struck from the policy, or, that such language is clearly defined and accompanied by examples and guidelines.

Failure #9: There is no outlined process for auditing the BWC project to make sure that it is in compliance. We must demand that the BWC policy include a section regarding audits as well as discipline for deviations of policy and that a civilian third party–with no connections to law enforcement–be responsible for running audits of the entire project.