1. Body Worn Cameras 21st Century Technology & some 20th Century Issues
4/6/2016
Ed Trapp
Commander, Pittsburgh Police Department

2. Things to Consider Does my municipality want Body Worn Cameras
Can we afford to have a BWC System
Initial Purchase Costs
Maintenance Costs
Storage Costs
Union Issues
Can we afford NOT to have a BWC System

3. Existing Research: Rialto, CA

4. Rialto, CA: Results “The Civilizing Effect”
With cameras:
Complaints against officers down
88 percent.
With cameras:
Use of force by officers down
60 percent

5. The Upshot
“The findings suggest more than a 50% reduction in the total number of incidents of use-of-force compared to control- conditions, and nearly ten times more citizens’ complaints in the 12-months prior to the experiment.”

6. 2013: Pittsburgh Police Conducts a BWC Case Study
Motorcycle units – Comparison from 9/17/12 – 2/28/13*
15 Officers and Supervisors who used BWC most
Complaint Comparison
This preliminary experience shows:
Sample to small for any definite conclusions
One officer who was Number 2 in Bureau in complaints only had 1 complaint during extended trial (February 2012)

7. Protecting the Municipality and it’s Cops
If it shuts down even one lawsuit
If it clears one good officer
If it helps rid a department of one bad one
If is stops one Ferguson

8. Some preliminary thoughts and observations
The BWC issue is also a political issue
Concerns with privacy
Conflicts with existing law (Wiretap Act and Open Records Act)
Unknown interplay with existing law (CHRIA)
BWCs are seen by some as a law enforcement panacea, especially for police/public relations.

9. The Reality
BWCs are yet another in a long and endless line of tools in the police officer's tool box.
Implementation of BWC's will require:
A sound policy
Adequate training
Constant supervision

10. Federal Law There is none as of now.
The only mention in any federal court of BWCs is in the context of settlement agreements where the municipality agreed to purchase BWCs for police officers.

11. Potential Federal Issues
The right of the people to be secure in their persons, houses, papers, effect, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(Fourth Amendment to the US Constitution)

12. The Reality of the Situation
A police officer IS the government against which the Fourth Amendment offers protection.
Once a police officer is physically in a house, or any private place, privacy is already lost.
However the right to privacy has not vanished with it.

13. The BWC is a Tool
Police officers prepare all manner of written reports.
The purpose of a report is to document what an officer did and why he/she did it.
The need for accuracy increases with the seriousness of the situation.

14. The Benefit of the BWC
Once a police officer is in a private place, where better for the BWC to be operating so that we can know everything that the officer is seeing and hearing while in that private place?

15. State Law Criminal History Records Information Act
18 Pa.C.S.A. § 9101 et seq
CHRIA established categories of information and who that information may be disseminated to

16. CHRIA Levels of Information
CHRIA identifies three (3) broad levels of information and provides rules for the dissemination of each of those levels. Defined at 18 Pa. C.S.A. § 9102, they include (1) “Police Blotters” or “chronological listings of arrests,” discussed at 18 Pa. C.S.A. § 9104; (2) “Criminal History Record Information,” discussed at 18 Pa. C.S.A. § 9121; and finally, (3) intelligence, investigatory and treatment information, discussed generally at 18 Pa. C.S.A. § A criminal justice agency’s ability to release information is controlled by the “level” CHRIA assigns to the information as well as the identity of the individual or agency requesting the information. The level of protection afforded specific documents is in turn dictated by the content of the requested information and the context under or purpose for which it is collected and maintained.

17. If a BWC Video is Investigative Material
CHRIA provides absolute protection from dissemination to noncriminal justice agencies all other information related to intelligence, investigatory and treatment matters. This information, if certain circumstances dictate that it may be released at all, may only be released to other criminal justice agencies. 18 Pa.C.S.A. §

18. Some Thoughts
A policy adopting BWCs could provide that video and audio recordings are generally considered investigatory materials.
As such, a municipality could argue in the face of a Right to Know request that it is unlawful for the municipality to release investigative material as per CHRIA.
Support by the District Attorney would be crucial to this argument.

19. Right to Know Law 65 P.S. §67 et.seq.
Provides for access to government records
Washington State has been at the forefront of BWCs and the developing notion that RTK laws can bankrupt a municipality with requests for the release of police videos.

20. Pa. RTKL Exception for Law Enforcement
65 P.S. §67.708(b)(16)
A record of an agency relating to or resulting in a criminal investigation, including:
6 subsections with an additional 5 sub-sub sections of records that are exempt from disclosure.

21. Undermining CHRIA
If a municipality chooses to release a video to the public, it WOULD undermine any argument that such videos are protected under CHRIA and §67.708(b)(16)(i-vi)
However, it could be argued that the District Attorney at his/her discretion, could make a decision that it was in the public interest to release a video.

22. Wiretap Act 18 Pa. C.S. §5702 addresses "oral communications"
Prior to the most recent revision, most police departments determined that the Act prohibited the use of BWCs.
The Act was amended to add §5704(16)

23. Wiretap Act
§5704(16): A law enforcement officer … acting in the performance of his official duties to intercept and record an oral communication between individuals in accordance with the following:
(i) at the time of the interception, the oral communication does not occur inside the residence of any of the individuals

24. WTA continued
(ii): at the time of the interception, the law enforcement officer (A) is in uniform or otherwise clearly identifiable as a law enforcement officer; (B) is in close proximity to the individuals' oral communication; (C) is using an electronic, mechanical or other device which has been approved … to intercept the oral communication; and (D) informs, as soon as reasonable practicable, the individuals identifiably present that he has intercepted and recorded the oral communication.

25. Problems with WTA
Does not permit oral communications inside a residence
Places significant restrictions (in uniform) and requirements (uniform, close, approved device and informs all individuals)

26. Changes Coming?
The Pa. legislature is currently considering amending the Act.
SB 976 Passed the Senate overwhelmingly but, got lost in flurry of end of year work.
Stay tuned…..

27. The Lot of a Police Officer
…police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving…
J. Rehnquist, Graham v. Connor 109 S. Ct 1865, 1871 (1989)

28. Factors Effecting the Quality of a Police Report
Written from:
Officer's perspective
Officer's prejudices
Officer's purpose
Other factors:
Fatigue
Injury
Emotion
Intelligence
Ability to articulate

29. Benefits of BWC
For the officer – if necessary, the ability to review to assist in writing a more complete and accurate report.
For the supervisor – a completely accurate, unbiased accounting of what was seen and heard by the officer.
For the investigator – visual evidence to review and evaluate.

30. More Benefits
For the prosecutor – more evidence to review in determining appropriate charges, if any, to pursue.
For the IA investigator – evidence to consider when judging an officer's conduct.
For the Chief – good PR for the officer and department?

31. Police Concerns Privacy – is this big brother?
No one will want to talk
Punitive Use by Supervisors
What if the device fails?
Remember that the overwhelming majority of cases, video exonerates the officer

32. Other Considerations When to record
Significant consideration when drafting the policy.
Ranges from all the time to limited circumstances
Caution against drafting a policy that:
No one understands
No one can implement
No one can articulate
Storage of Data
$$$ Expensive $$$
Determine time limits for expungement

33. Still More Considerations
Accessing stored video
Who can access and for what purpose:
Reporting officer
Other officers involved in incident
Supervisors
Internal affairs
DA personnel
Other Law Enforcement (FBI, Department of Justice)

34. Policy BWC Policy must be well thought out Privacy concerns addressed
Record/Don’t Record/Officer Discretion
Supervisory Review – Random
Supervisory Review of Video in Use of Force is mandatory
Video Retention/Deletion

35. Conclusion
BWCs provide great promise for assisting police officers provide more accurate reports, assisting in investigations and for police accountability.
They are NOT a panacea if for no other reason that video and even audio often raise more questions/issues than they answer.
If not properly handled, they will certainly cause more problems than they resolve.

36. Recommended Reading BJA National Body-Worn Camera Toolkit
Implementing a Body Worn Camera Program
Recommendations and Lessons Learned
COPS - Implementing a Body-Worn Camera
Program