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by Peter Moskos

October 5, 2016

"Why'd you have to shoot that criminal with a gun?"

So much of the body-cam debate, releasing or not releasing videos, comes down not to police behavior but to this:
I know, as a lifelong police officer, that I see people on the worst day of their lives. People shouldn’t feel like when the police come to your house that what’s happened to you is going to be splashed all over the Internet.
But it will.

I've long advocated punting the releasing of video and privacy issue to the ACLU. If police take the lead on this, no matter what they choose, they will be faulted. There needs to be a policy based on something other than public outrage. And generally I'm all for erroring on the side of transparency. And that's probably the way it has to be as long as people are willing to say people are holding books when they're holding guns.

As my colleague says:
“What you’re seeing is basically a policy of appeasement,” said Jon Shane, a professor at the John Jay School of Criminal Justice in New York City and a former police captain in Newark, N.J.

Shane said state legislatures should decide the rules for making recordings public. In California, lawmakers have repeatedly failed to draw up statewide policies on the issue.
There's also this factor:
Beck acknowledged the anger surrounding the weekend’s shootings and said he believed some of the reaction has been compounded by other police killings around the country.

“We have all seen police-involved shootings that defy justification in other municipalities. I have seen them where I am at a loss to understand why,” he said. “I think that affects what happens on the streets of Los Angeles.”
This concerns the shooting of Carnell Snell Jr. in Los Angeles.

23 comments:

Jack Catchem said...

Oh, especially in this day and age. It may not even be the cops body camera. I've only been an officer for a decade and already I can confidently state the average person is vastly more interested and more likely to record my police activity than ten years ago.

Sure they will only post it if "something cool" happens, but I'm fascinated by how the act of being recorded changes individual's behavior during a contact, and not always for the best.

Liberaltarian . . . said...

It doesn't need to be and shouldn't be all or nothing when it comes to the release of body cam video. But, it also shouldn't be ad hoc, discretionary decisions by the law enforcement agency whose conduct may be at issue. There's plenty of sensible policies that attempt to balance the need for public accountability and legitimate privacy concerns of individuals, such as the ACLU model body cam policy.

Andy D said...

LIberaltarian....just curious because I only vaguely remember...is that the policy where the ACLU says that cops can't see their own videos before writing their reports?

Liberaltarian . . . said...

Yes. https://www.aclu.org/files/field_document/aclu_police_body_cameras_model_legislation_may_2015.pdf Section 1(n).

Andy D said...

Yeah that's what i thought:
"(n) No law enforcement officer shall review or receive an accounting of any body camera video footage that is subject to a minimum three (3) year retention period pursuant to subsection (j)(1) prior to completing any required initial reports, statements and interviews regarding the recorded event."

So when I use force or make a felony arrest, I can NOT review my own footage before writing my report or making any statements? Because....we don't want the report to be accurate?

I understand the reason they want this: to avoid cops getting together to explain their actions and tailoring them to the video. But it makes this model a complete non-starter to me. The only effect will be to make people able to call me a liar because my inaccurate recollections don't exactly match the video.

I have had in-car video for 14 years and ALWAYS review the video prior to writing the report. This is because a) I want to be 100% accurate and 2) I see things on the vieo that I don't recall or can't remember.

Peter Moskos said...

The idea of "let's use the video to bang the cop" rather than let's use the video to improve policing and law enforcement is indeed crazy. The goal is to get accurate police reports. And to get accurate reports you use all the available evidence. Police reports are important legal documents, not some damn memory test.

There might even be 5th Amendment issues, since these reports would then be used to prosecute cops for perjury. At the very least, if this became policy, all reports should begin with two boilerplate statements: 1) "I am being forced to write this report" and 2) "To the best of my memory...." That might protect cops from honest mistakes and criminal prosecution. The latter would also pretty much destroy any successful prosecution of criminals. C'est la vie.

Otis Blue said...

My agency's dash cam policy is to allow officers to review video prior to report writing/statements in all situations EXCEPT officer involved shootings. The logical ridiculousness alone should cause ones brain to hurt, but at least it clearly defines the relationship between working cops and those above us.

Andy D said...

Yeah Otis I'd say that policy sets you straight as to what they think of you. Best response I ever heard about the ACLU reviewing-the-video thing was voiced by someone who was being interviewed about it and they asked "Am I the only person you have interviewed about this?" and the reporter said "no, of course not." and they then asked the reporter "did you record those interviews?" and the reporter said "of course." They then asked "will you listen to those recordings before you write your article?" and the reporter said "yes of course." They then asked, "why will you listen to them? Weren't you here? Didn't you do the interview?" and the reporter said "well, yes, but I want to report accurately." Then... [crickets]

I hate to say it because the ACLU does SOME things that are noble and important, but when it comes to video and the ACLU, the ONLY purpose of a body cam or dash cam is to screw the cop, malign the cop, or claim the cop is a liar. Some even object if the department releases video showing that a complaint was false, or that an officer did some noble deed.

Liberaltarian . . . said...

Do police commonly show video to witnesses before taking a witness statement from them? If not, then why not?

Peter Moskos said...

Commonly? No. Because only because it isn't practical or doesn't help the investigation. Investigations are not a game of gotcha, they're a quest to figure out what the hell happened and to whom. If video helps, you use it. Of course witnesses would be shown video if it helped matters. Also, if you have good video, you don't really need witness statements. The point is you use everything you can in an investigation, including video.

And this is important: witnesses aren't giving sworn statements under penalty of perjury. So if a witness gives a statement that is factually incorrect (even if they actually believe it to be true) it's no big deal. For cops it's a fireable offense.

With suspects, it *is* a game of gotcha. And suspects can lawyer up. But they would be shown video, too. Rarely would you withhold evidence of guilt. It's how you get a confession.

What's so crazy is that the goal here is to withhold evidence for the purpose of obtaining contradictory or incorrect statements. What's the benefit of that?

JDB said...

The benefit is the preservation of evidence streams. We've gotten to this point in history because there have been repeated occurrences of officers creating a narrative that does not match the evidence.

We now live in a world where officers are not believed, because they've proven to not be believable. At what point do we all admit that and start working to change it?

What I don't understand is how those working in law enforcement fail to see the benefit of writing an initial report based solely on what was actually witnessed, without 20/20 hindsight. If the officer was mistaken, then let the paper trail reflect that.

Peter Moskos said...

Because cops aren't writing a friggin fiction narrative. Because police reports aren't self-reflective essays about policing. And, as I wrote, if cops write a factually incorrect report it's a crime and fireable offense.

And we don't live in a world where cops aren't believed. *You* live in a world where cops aren't believed. There's a difference.

And vague calls for "change" (and "reform") always crack me up because they're meaningless without details. How's this for "change": bad cops continue to be bad and make shit up. Meanwhile twice as many people get murdered because good cops are afraid of getting fired because of people who never believe cops. Thanks to "reformers" advocating for "change," that's where we are right now. Congrats to all.

JDB said...

"And, as I wrote, if cops write a factually incorrect report it's a crime and fireable offense. "

I think you're making my point. Do I need to link to various videos of officers discussing how to craft a report with charges that justify their actions? So, it should be a fireable offense and we should preserve the evidence that it occurred rather than give an opportunity to write a more creative report. At this point I suggest that if an officer didn't do anything wrong, they have nothing to worry about. If they are not good witnesses, then perhaps they should look into another line of work?

Sadly, "We" do live in a world where cops aren't believed. Jason Van Dyke and Micheal Slager are just two recent examples of narratives that didn't wash with the evidence. So what I'm saying is that we accept that police are human and fallible and will screw up, and that we actually hold them accountable for those actions. One way to help with that is to insure that our "Professional" witnesses record the facts as they recall them rather than having an opportunity to tailor their account to match video that might dispute their version.

It almost doesn't matter if officers think they're doing the right thing when the public has seen so little transparency in policing and an overall failure to self police. Don't misunderstand me. I appreciate what you're doing and realize that this is your personal blog and not a forum for disgruntled letters to the editor in the local paper, or necessarily a dialog about police reform. I think the way we handle police video needs to be discussed and debated, so that we can make policies that work for everyone. In that respect, we should address the real concern that officers will potentially view video and use that as an opportunity to create a report that fits the video rather than record the facts as they thought they occurred.

john mosby said...

Prof, I would respectfully submit that there are some pro-cop reasons to write the report without recourse to video.

First is the situation where you are "reasonable but wrong." E.g. Subject whips out a shiny metallic object that turns out to be a toy gun, plastic picnic knife, etc. You know you were reasonable, and you know you were factually wrong. What possible benefit do you get from playing the tape and second-guessing yourself even more than you already are?

Second is the situation where the video has a different angle of view, such as when it's a dash cam, surveillance cam, or another cop's body cam. Now you will have info that you did not have at the time of the event, and by human nature it will get muddled up in your memory, perhaps leading you to embarrassment and loss of credibility on the stand.

The detective needs to see all possible sources of info, and so does the arresting PO making a routine report about the suspect. But the force-using PO, making a statement solely about her own use of force and state of mind? I am not seeing it. I personally would wait 24 hours to calm down, then write it from unaided memory, taking care to note exactly that as well as the mandatory nature of the statement. Then I would have my lawyer demand all other sources to prepare my defense.

Having said all that, I am not saying a bright-line rule one way or the other should be imposed as a panacea.

JSM

Peter Moskos said...

Those are good points. But I go back to my point that the purpose of a police report is to document an event or build a criminal case against a suspect. That's it. If police reports became a way to play gotcha with cops, based on withheld evidence, we're severely harming criminal investigations. And if watching videos makes bad cops better, all the better. That would improve policing.

There would be serious unintended but inevitable consequences. Police reports will be worse. Shorter. Less descriptive. Include CYA disclaimers. Rather than trying to present a crime scene in its totality -- which is often essential for criminal conviction -- cops will be writing as little as possible to avoid error. This is not a good trade off.

Also, there would be serious professional harms that come from treating everybody in a job like the worst-case scenario. If you want people to act professionally, you need to treat them like professionals. There are better and catch bad cops (like better background checks at hiring and actually paying attention to the multitude of red flags that already exist).

john mosby said...

Then take away the requirement for a separate statement from the force-using officer. The incident gets a standard report, preferably written by a PO or dick who showed up after the smoke cleared. The only reason we require a statement from the force-using PO is because years ago someone had the bright idea to do pre-emotive lawfare on the bad guy. Nowadays, the bad guy has preempted our preeemption, and by writing the statement we hand him the opening round for his lawfare salvo. So just don't do it.

JSM

Otis Blue said...

@ JDB, I'm not sure what is wrong with learning how to craft an argument that presents a ones actions in a favorable light taking full consideration of all factors physical and emotional at the time of the incident. What do you suggest people do instead? Police critics commonly complain that cops all use the same language in reports such as "furrowed brow", "bladed stance", etc and use the ubiquity of these terms to illustrate some grand conspiracy of cops cooking up false stories and not even being smart enough to craft original tales. The reality is that courts have found that a cop saying "the guy looked aggressive" or "like he wanted to fight" was lacking. So, cops broke down what specific physical actions are indicators of looking aggressive or wanting to fight, and that language got shared because it's true, makes sense, and works.

Regarding video, take Slager and VanDyke. How could viewing those videos before making a statement help those officers at all? No amount of crafting is going to make those clearly criminal acts legally or morally defensible. I would show all my suspects video of them committing the crime if I were able to.

It seems that police accountability folks want to use "inconsistencies" between statements and video as a back door to firing officers for using so-called "lawful but awful" force. Keep in mind, I'm not defending clearly fabricated statements. I'm am, however, defending discrepancies in perception and memory.

Peter Moskos said...

Well said. I think you hit the nail on the head.

I want cops to write more accurate reports. And if videos make cops write more accurate reports, I'm really baffled by opposition to it. And, like you say, truly egregious behavior can't be defended.

It would mean, however, that departments would lose a quick and easy way to fire cops. Right now, when cops get fired because they did something bad, it's often because they lied on their report, rather than the actual thing they did. (See, for instance, that cop who pushed over that bicyclist in Times Square many years ago: http://www.copinthehood.com/2009/02/bicylist-assualting-cop-fired.html). Lying on the report is usually how they get you just because it's simpler and less subjective than trying to demonstrate the action was bad.

JDB said...

No one seems to have really addressed the ACLU's interest in preserving a separate line of evidence. That is other than to suggest it doesn't jib with being able to CYA by viewing the video before making a statement. What seems to be lost in this is that the other party, the arrested party, isn't there voluntarily and has a lot riding on how this all plays out. Saying that the policy doesn't meet "our" needs or ignoring it altogether doesn't nullify the question.

At the same time, the reason issued by many departments for not releasing video, is that it would potentially taint witnesses. On one hand, it prevents those who didn't actually witness an incident from clouding the investigation. On the other hand, it sounds fishy when it doesn't apply to officers who might have been involved in a crime.

I raised Van Dyke not just because he fabricated a story that wasn't supported by the video. Other officers at the scene were at least complicit in the fabrication, if not outright supportive. It's also worth noting that all of the audio recorders from the dash cameras had been purposely disabled. He's yet to have his day in court, and I don't know all the facts. The problem is it looks bad, and feels like a cover up. It makes it seem like backing up your buddies is more important than doing the right thing, and that's a problem.



That leads me to believe that the ACLU's concern has some merit.

Otis Blue said...

I'm not really clear on the "separate line of evidence" angle. Another poster above provided an anecdote, but I'll just pose a question. If I take notes during an interview and then refer to those notes before writing the report, am I failing to maintain separate lines of evidence or am I ensuring I record the most accurate set of facts regarding the evidence? What would the purpose be for denying me the chance to review my notes knowing that it will lead to the misrecording of some statements into the case file -- other than to jam me up for lying? What do we really want as a society: honest cops or cops caught and disciplined for lying?

As for releasing videos to the public tainting witnesses, videos viewed without context, especially when edited into short clips or even unethically edited and made into Facebook memes, could very well taint witnesses. There is a clear difference between an officer watching a video that he or she recorded in order to most accurately document the facts of what happened and millions of inter-webbers seeing clips of video taken completely out of context, supplied with misleading context, and sometimes misrepresented entirely.

Regarding Van Dyke and a cover-up. I posit that if it were policy that cops reviewed video before writing their reports (and knew that supervisors would be doing a thorough investigation) the reports written by the witness cops would have been much more accurate. I have no idea about your experiences regarding high stress incidents, but I can assure you that things get very muddled, especially when there are multiple moving parts and those parts have moved completely away from their starting positions. In such situations, I am hard pressed to see how one could not instinctively filter ones perceptions in support of the actions of someone upon whom you closely identify with and have entrusted your safety. Reviewing video will allow cops the chance to refilter their perceptions, record the most accurate set of facts regarding an incident, and ultimately allow us to more easily prosecute and/or fire cops who do shitty things.

JDB said...

I see the point you're trying to make on interview notes. Those notes would be a recording of your interpretation of the interview, which is what the written report is. Body/Dash cam video, is a separate and hopefully unbiased alternate interpretation. In the best of worlds, it completely supports what the officers report says. If the report is written, based only on the the officer's recollection or notes or personal voice recorder, then the official video either supports it or impeaches it. I want honest cops and I want lying cops caught and disciplined for their transgressions. Are you suggesting that all cops are honest, or that we shouldn't try to catch those that are dishonest? I understand that your job is on the line, I'm just saying that someone else's job, freedom, and maybe future is also riding on veracity of the report. Shouldn't we err on the side of caution?

I'm not going to disagree that video clips, taken out of context can be misrepresent a situation. What I'm saying is that departments are not doing a good job at being transparent. So when they simultaneously say that seeing video of an incident will taint witnesses, but it's ok for officers who are witnesses to view the same, it sounds like double speak. If it's important to interview witnesses before their memory is tainted by viewing a video, then that should apply to all witnesses. The fact that some departments require officers to write an initial report before viewing video seems to support that.

Again, I agree that high stress situations have a marked effect on recall. The problem, as I see it, is there has historically been lax oversight and accountability of officers in these situations. That's one of the public perceptions behind the current push toward reform. Allowing officers more access to the evidence that would impeach them, when it already seems like investigations are more about protecting your own than accountability, seems ill conceived on the surface. It might be the best thing for those at the scene and potentially produce more accurate reports, but at this point it requires a public leap of faith in a system that the public is already saying they lack faith in.

Bad officers and abuse of force are not new developments. What is new is the technology that puts it in the public eye. It's not going away. We can make policies that restore public trust in police or we can keep arguing about it and hope it fixes itself. I honestly don't know how to fix this problem. I just know it's a problem and that's why I follow this and other forums on the subject. Thanks for doing a difficult job and being open to having this discussion.

Otis Blue said...

We agree on quite a bit. Lax and/or inconsistent oversight has indeed been a very significant problem in policing. Agencies also often do a crap job of PR. There are and always have been cops who acted incompetently and immorally (often the first leads to the second). The question is how do we raise the level of competency and create a culture where poor behavior is caught swiftly and dealt with effectively?

Regarding honesty, I'm not saying that all cops are always honest, nor am I saying we should not continually attempt to root out ones that fail to meet an acceptable standard of competency and morality. I'm saying that what opportunistic critics proclaim to be dishonesty (specifically with regards to recall during stress incidents) is often not dishonesty but an artifact of human perception that can lead to a reporting of facts that differ from a video.

What I want is for cops to be better at the application of force, use it only when necessary, and be able to fire those that cannot maintain the standard. Watching a video before making a statement will not change the force or the facts that led up to the force. If my perception was different from what a video shows, I will have to address that in my report as will all officers on scene. If an officer repeatedly has perceptions that differ from reality (and other cops on scene agree that there was a difference) we are now getting tangible rationale for dismissal.

This is key, because as much as critics want it otherwise, the standard for what is an inappropriate application of force is (and always should be) determined by other cops (under the laws set before us by congress and courts). If you haven't been a cop, sat in roll-call or a training session, you have no idea how harsh cops can be on each other for poor performance. It's our lives on the line after all. Forcing cops to view videos before writing reports, comparing those statements to the video, and holding cops accountable for those statements will force us to uncircle the wagons and treat the incident in a manner less tribal and more professional.

EA5 said...

This thread actually gets at a fundamental disagreement about the point of body cameras. The officers here view them as a tool to aide their investigations. For the reformers, it's entirely about monitoring the police. These are two totally different goals and require totally different policies.