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Milwaukee police worn body cams: tools for accountability can be used as tools of injustice

On Behalf of | Aug 5, 2016 | Firm News

A screwdriver is a lousy tool for pounding in nails.  That is the trick when you have a tool: you must use it for the right purpose in the right way for it to be effective.  The same can be said of a another tool: the police body cam.
The swift first-degree murder charge filed against a former University of Cincinnati police officer after his body camera captured him shooting an unarmed black man to death reflects how crucial video is in proving police misconduct.
Perhaps the most commonly cited indicator of body cameras’ potential to reduce instances of officer-civilian conflict is the “Rialto study.” In this study, which ran from February 2012 through July 2013, half of Rialto, California’s fifty-four patrol officers were “randomly assigned to wear the TASER AXON body-camera system.” The results of the study appeared conclusive: “[s]hifts without cameras experienced twice as many incidents of use of force as shifts with cameras,” and “the rate of use of force incidents per 1,000 contacts was reduced by 2.5 times” overall as compared to the previous twelve-month period.  Body-worn cameras reduced the use of force by roughly 50 percent, says Dr. Barak Ariel, the lead author. Complaints against police also fell 90 percent during the study period compared with the previous year.
In the wake of other high-profile incidents in Ferguson, Staten Island, North Charleston, Baltimore, and elsewhere, law enforcement agencies across the country are rapidly adopting body-worn cameras for their officers. One of the main selling points for these cameras is their potential to provide transparency into some police interactions, and to help protect civil rights, especially in heavily policed communities of color.  Likewise, some California cities, like Oakland and San Diego, have reported a decline in complaints against officers after members of their departments began wearing body cameras.  A big problem is that cameras can be edited or tampered with; some cops have been fired since they refused to turn their cameras on.
But accountability is not automatic. Whether these cameras make police more accountable — or simply intensify police surveillance of communities — depends on how the cameras and footage are used. That’s why The Leadership Conference, together with a broad coalition of civil rights, privacy, and media rights groups, developed shared Civil Rights Principles on Body Worn Cameras. The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership of more than 200 national organizations to promote and protect the civil and human rights of all persons in the United States. Through advocacy and outreach to targeted constituencies, The Leadership Conference works toward the goal of a more open and just society – an America as good as its ideals.

Unfortunately the Milwaukee Police Department body cam policy has failed in 5 out of 8 categories specified by The Leadership Conference.
Makes the Department Policy Publicly and Readily Available
Milwaukee PD publishes its most recent publicly available BWC policy on its website as part of its Standard Operating Procedures. The policy is SOP 747, effective July 15, 2016.
Limits Officer Discretion on When to Record
Milwaukee PD requires officers to record “all investigative or enforcement contacts” through the completion of the event. (§§747.25.C.2.d, g)

d. Members with a BWC shall make every effort to activate their BWC for all investigative or enforcement contacts including, but not limited to:
1. Vehicle stops
2. Impaired driver investigations
3. Field interviews and pedestrian stops
4. Transporting citizens or prisoners
5. Searches of persons or property
6. Dispatched calls for service
7. Crime scenes
8. Crash scenes (may be turned off if member is waiting on a tow truck and no additional enforcement activity is likely)
9. Advising a subject of Miranda warnings (in the field or without MediaSolv)
10. Suspect/witness statements and interviews
11. Vehicle and foot pursuits
12. Emergency response to critical incidents
. . .
g. Once a BWC is recording, members must continue to record until either the completion of the event or until they leave the scene and their involvement in the event ceases.
Before prematurely stopping a recording, officers must record a justification on camera before turning it off. (§§747.25.D.3)

3. Members shall make a verbal notation on the recording any time he or she plans to intentionally stop a recording prior to the completion of an event or incident. The verbal notation must include the reason why the member is stopping the recording.
However, when officers fail to record a required incident, there is no requirement to provide a concrete justification.
Addresses Personal Privacy Concerns
Milwaukee PD prohibits officers from recording “in a places where a reasonable expectation of privacy exists.” But in other sensitive situations, including those that involve nude individuals or victims of sexual assault, Milwaukee PD gives officers full discretion over whether to record. (§747.25.D.1; §§747.25.E1-2)

1. Police members have discretion in whether or not to record potentially sensitive events or circumstances (e.g., victims of a sexual assault, child victim statements / interviews, nude persons who are not the target of enforcement action, or a citizen victim/witness who requests they not be recorded while giving a statement, or where otherwise authorized in this policy).
. . .
In keeping with the department’s core values of respect and integrity, members assigned a BWC will adhere to the following guidelines:
1. BWC’s will not be activated in a place where a reasonable expectation of privacy exists, such as dressing rooms, locker rooms and restrooms . . .
2. BWC’s shall not be used to record a body cavity search, which are only allowed to occur in a hospital or medical setting. BWC’s will be used to record searches done by officers in the field (e.g., pat-downs, vehicle searches).

Milwaukee PD suggests — but stops short of requiring — that officers inform subjects that they are being recorded. The policy does not expressly allow subjects to opt out of recording. (§747.25.C.2.h)
h. While not required by policy or state law, members assigned a BWC may find it valuable to inform other parties that they are being recorded. This has proven to be influential in garnering cooperation of subjects and has been shown to reduce incidents of use of force.

Prohibits Officer Pre-Report Viewing

Milwaukee PD allows officers to review footage when writing their reports. (§747.25.I.1.b)

1. . . . Recordings may be reviewed:
. . .
b. By a police member viewing their individually assigned recordings to assist with writing a report, supplement, citation, memorandum or court case preparation.
In “critical incidents” (action resulting in great bodily harm or death) officers are not allowed to view recordings until investigators arrive, but are not prohibited from viewing footage prior to making a statement or writing a report. (§747.25.F.2)
2. In the event of a critical incident, members assigned a body worn camera will refrain from viewing the recorded data until the investigative entity responsible for the investigation arrives on the scene.

Limits Retention of Footage
Milwaukee PD specifies various “recording management categories” and the minimum retention durations for each category. Unflagged footage is to be preserved for 130 days, but it is not clear whether this is a minimum or maximum period. (§747.25.G.2)

2. Recording Management Categories
a. The following recording categories are to be used.
. . .
2. Incident – No Official Police Action Taken / Call Advised
a. All video files that have contact with the public having no immediate evidentiary value at the time of recording will be saved in this category.
b. Any file not tagged into another category by a member will be placed into this category.
c. Files retained in this category will be preserved for 130 days from the date of recording.

Protects Footage Against Tampering and Misuse

Milwaukee PD prohibits unauthorized access to footage, but does not expressly prohibit officers from modifying, deleting, or otherwise tampering with footage. The policy also does not indicate that access to recorded footage will be logged or audited. (§747.25.J.2)
2. Unauthorized accessing, copying, or releasing captured video without the approval of the Chief of Police or his/her designee is strictly prohibited. Members are prohibited from making copies of a BWC audio/video recording by using another recording device such as a cell phone.

Makes Footage Available to Individuals Filing Complaints

Milwaukee PD relies on existing public records law to make footage available, and does not expressly allow individuals who are filing police misconduct complaints to view footage. (§§747.25.J.4-6)

4. Members will not allow citizens to review video captured by a BWC unless there is an investigative reason to do so and such viewing has been approved by a supervisor. Members shall advise citizens that they may request a copy of the recording through the public records process.
5. The release of video requested through a public records request will be handled in accordance with existing policy and public records laws. Reproduction fees for duplication of recordings will be established by the City of Milwaukee. . . .
6. Prior to the release of any BWC recording to the public, Open Records will ensure that proper redactions have been made in accordance with state law.

Limits Biometric Searching of Footage

Milwaukee PD does not place any limits on the use of biometric technologies (e.g., facial recognition) to search footage.