Who Watches the Watchmen?

By: Hugo Sanchez *

Ferguson, Missouri, this city has been plastered across national headlines and has opened up new avenues of debate. Many argue that if Officer Wilson had been wearing a body camera, the incident and resulting backlash could have been avoided. Police body cameras are a potential solution that provides objective recording of police encounters in incidents like Ferguson.


(http://assets.vancitybuzz.com/wp-content/uploads/2014/10/police-body-worn-camera-867×600.png?7ecf8a )

The Obama administration recently pledged to improve objectivity by buying 50,000 new body cameras for law enforcement agencies nationwide. The cost of implementing this would be $75 million, as each body camera runs between $800 and $1,200. President Obama has pledged $ 273 million for this initiative. Police body cameras may soon become the norm for law enforcement agencies rather than the exception. Another obstacle that would have to be tackled is where the legal rights of the people would come into play. Where, when, and how will the officer notify the civilian that they are now being filmed? In the instance of dashboard cameras, the officer does not have to notify the civilian that they are being recorded as long as the police officer is a party of the conversation as per the Wiretap Act. Police body cameras would work much in the same way, unless the incident regards a sexual, religious, or political nature, as that is protected by a 1979 ordinance (at least in Seattle where there are officers testing a pilot body camera program). Police officers need not fear legal repercussions in 37 of the 50 states because they are one party consent to recording states. 12 of the remaining are all party consent states, with California being a one party if certain criminal activity is occurring or the suspect has been accused of such as kidnapping, extortion, bribery, or a violent felony. The Justice Department has worked with state legislatures to have the two party consent waived for police worn body cameras.

The ACLU (American Civil Liberties Union) published potential guidelines that police forces could use when they start using body cameras. The four main points in the article are:

  1. Notice – Whenever a police officer starts recording he should notify the civilian that he/she is doing so. Further precautions should be taken in the case of a home or apartment, when they ask to search the premises.
  2. When to Record – the ACLU recommends that officers should be required to activate the camera during every interaction with a civilian. They feel that if the camera was active at all times, it would be unfair to both the officers and the civilians because it could be seen as constant surveillance. It also removes the discretion of the officer in that EVERY civilian interaction must be recorded. Some situations require delicate handling and with the camera on, it would make it more difficult to do.
  3. Retention – the recommendation of the ACLU is that videos should be held for 90 days unless they are being used in an investigation, the officer who recorded it receives a complaint, force was used, or they are flagged for suspicious activity. Many police departments that use body cameras have developed standards of storing and retaining the recorded information.
  4. Disclosure – according to the ACLU, the person who got recorded should be able to access the record as well as their counsel. Once the investigations are over, the videos and recordings are subject to any open records request.

The Justice Department also recently published its own set of guidelines, and while they agree with the ACLU is some areas, some situations may require a different approach such as when entering someone’s home. They also feel that the public would be more reluctant to interact with officers if they knew every conversation would be recorded.

The new issue of body cameras is sure to be filled with more hurdles, and SLMS will strive to keep you updated on the decisions regarding them. If you have a legal matter that has left you with questions or may even be distracting you from your studies, SLMS is here to help you get back to the important work of your academic career. Call us at 936-294-1717 or email us at slms@shsu.edu  to set up and appointment with our attorney.

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