by Gary E. Lippman
Part one of this article, in the December 2016 issue of the Journal, explored whether the growing use of police body cameras, a practice with a variety of impacts on officers’ employment, would be the subject of mandatory collective bargaining in Florida. I now address the broader question of whether such devices would improve the delivery and cost of policing services in Florida from a legal perspective.
As to the central question raised in the title, while many would respond with a “yes,” as an attorney with experience representing a large police union, I believe the answer is a sound “maybe.” What follows is my assessment of the legal impacts of the use of police body cameras on officer discipline, agency risk management considerations, and law enforcement-community relations, among other factors.
Indisputably, these are very turbulent times for law enforcement. Citizens’ cell phone cameras are regularly capturing policing activities in real time, with many fatal confrontations between officers and citizens featuring race as a common denominator of officers who shoot and those who are shot. Fatal confrontations recorded by bystanders are now commonly used in traditional and social media outlets as evidence that police cannot be trusted to police themselves and to support that certain “yes” answer in response to the question posed here. It seems logical that if citizens with cameras are recording police intentionally misusing force because officers believe no one is watching, attaching cameras to officers will make them aware the world is always watching, and, thus, policing will improve.
This analysis, however, assumes elected sheriffs and appointed police chiefs down the chains of command to the officers on the streets think and act in uniformity. It assumes all officers are aligned along a “thin blue line,” ready to cover up for each other until they cannot because videos show what really happened. Yet, law enforcement agencies are places of employment, having the same organizational strata, and experiencing the same organizational dynamics, contests, and discord between management and labor that exists in other workplace settings. In this author’s experience, I never witnessed any line of protection when truth failed to support it.
One fact supporting my “maybe” assessment is that law enforcement officers are subject to more complaints by citizens than other public safety first responders; thus, they are subject to more scrutiny by their employers; and as a consequence, the security of their continued employment is subject to more peril. A comparison of the Florida statutes governing employment investigations of firefighters and law enforcement officers, respectively, is illuminating on the matter of which public officers are subject to more scrutiny and discipline.1 Written into our laws in 1986, “Rights of Firefighters,” never has been amended. F.S. §112.82, gets virtually no wear and tear, and for that reason, never has needed mending. What is known as the “Police Officers’ Bill of Rights” has been amended a half-dozen times since 1998 alone, and all of those amendments expanded officers’ due process rights to review the evidence against them in advance of their employment-related “interrogation[s]” and discipline.2
Trained to be watchful of citizens, police officers have learned to be wary of their supervisors and agencies, also. If it is an organizational truism that “[stuff] rolls downhill,” it can seem to roll down more quickly within law enforcement agencies. Such agencies and their sworn employees, therefore, are not monolithic in assessing body cameras. Yet, whatever the conflicting interests of officers and their agencies, both are often linked in collective liability for the consequences of individual officers’ actions; and policy-level defendants are named more frequently now in the captions of federal civil rights actions premised upon policing policies alleged to encourage officers’ unconstitutional uses of force. Even when actions against individual officers are successful, their agencies often elect to hold them harmless, citing F.S. §§111.065, 111.07, and 111.071.3
Based upon these realities, it would seem reasonable to conclude that agencies might better defend their body camera policies, and the actions of their officers captured by the cameras, by inviting their officers’ representatives (a union in most cases) to participate as full partners in the formulation and implementation of body camera programs. Unfortunately, it seems most agencies and their counsel treat the topic with a reflexive resistance to union involvement. Union demands for negotiations over the camera programs are portrayed as efforts to encroach on employers’ management rights to exercise control and discretion over operations, methods of work, equipment, and the like.4
Ultimately, if police body cameras are going to improve policing, police officers have to trust the law enforcement agency employers attaching the cameras to them, and it is this author’s opinion that law enforcement agency employers can gain that trust, and benefit from it considerably, by shared responsibility for their programs. The primary stakeholders in this matter, therefore, are law enforcement employers and their employees’ unions.
Law-enforcement employers and their employees share a community of interest, and enormous pressure from the consumers of their services, to improve policing. For deployment of police body cameras to improve policing, the primary stakeholders have to trust each other. For there to be trust between the primary stakeholders, policies pertaining to the uses of police body cameras must be the product of collaboration.5 Police body camera policies established by collective bargaining will better enable law enforcement agencies to defend such policies in court as well as in the court of public opinion. Such collaborative efforts may even reduce the chances the federal Department of Justice will seek injunctive relief under 42 U.S.C. §14141(b) regarding officers’ conduct recorded pursuant to body camera programs.6
The realities, at least from the perspective gained during this author’s career, are that no police union is against holding its members accountable for their conduct; and, more often than not, video recordings will exonerate their members. The source of conflict is less the use of cameras, but agencies’ withholding the recordings from officers before questioning them in detail about the incidents captured on the recordings. Agencies and activist groups may argue that withholding from police officers the recordings of their actions before questioning them is the same technique police themselves use when questioning suspects before they can get their story straight. Why, then, is it not an appropriate investigative technique to use when officers themselves are questioned about their uses of force or other interactions? The problem with the premise is that it engages officers as unworthy of trust. It should come as no surprise, therefore, and especially now, that when being investigated by their agencies, officers may react like the suspects with whom they spend much of their time. This is not good for policing.
Before the July 1, 2009, amendments to F.S. Ch. 112, Part IV, law enforcement officers did not have a right in administrative investigations to review video evidence of incidents in advance of their compelled statements about those incidents. In my experience, agencies regularly invoked their strict compliance with the law to justify withholding such evidence from their officers.7 Yet, complainants’ and their witnesses’ statements against officers long have been audio recorded by agency investigators; albeit under a strict application of the law, only the statements of officers being investigated are required to be recorded.8 Law enforcement agencies, thus, have done more than what the law requires when it comes to complaints against their employee officers. Officers have experienced these extra measures as their employers’ efforts to ensure they can meet an evidentiary burden not in future lawsuits, but in potential disciplinary actions against them. This adversarial climate is heightened by coextensive agency policies, often of the unwritten sort, that complainants who are found to have made demonstrably false complaints against officers will not be charged.9
After the 2009 amendments to F.S. §112.532(1)(d), and in response to officers’ new statutory due process rights in employment investigations to review video recordings of incidents in advance of being questioned about them, some law enforcement agencies actually promulgated internal investigation procedures, which eliminated entirely the investigated officer’s own statement as to what occurred. These procedures ignoring an officer’s account of the conduct subjecting him or her to discipline seemed calculated to avoid providing audio and video recordings, and “all other existing evidence” of incidents to their officers before questioning them, as required by the 2009 amendments.10 The agency reasoning around the law was, and still is, that if the officer is not subject to interrogation about the alleged misconduct, none of the statutory due process requirements to provide evidence to the officer apply.11
By deliberately denying their officer employees an opportunity to explain their conduct as it appears on video recordings before an initial decision is made to discipline them for that conduct, law enforcement agencies promulgating such procedures severely undermined the trust their officers had in them. Thus, an agency’s decision to withhold body camera video from its officers before questioning them is only likely to promote a climate of distrust between officers and their employing agencies in the internal investigation setting.
Law enforcement agency employers utilizing such investigative procedures may be failing to appreciate that such procedures are of greater detriment of themselves than to their employees. The public records resulting from disciplinary investigations, which offer findings and conclusions as to officers’ conduct without hearing their sides of the story, and have the law enforcement agency’s imprimatur on them, may be misused by plaintiff lawyers, the media, or citizen groups against not only the officer but the agency itself. A burgeoning culture of distrust within those law enforcement agencies in consequence of such investigations can be compounded by a corresponding culture of distrust within the communities served by those agencies and nourished by those same records; especially when a final decision is made not to discipline the officer after he or she has been afforded a due process opportunity to be heard.12 Understandably, communities served by such agencies and confused by the conflicting official records relating to an incident may be unwilling to partner with them in the fight against crime. This is not good for policing.
With clinically established knowledge of the effects upon human memory of sudden traumatic events, and few things are more traumatic than a fight for your life, some law enforcement agencies have implemented procedures for officer-involved shooting (OIS) investigations that expressly deny officers the opportunity to review readily available video recordings of their violent encounters in advance of their voluntary sworn statements about them.13 Anybody who has taken a basic introductory psychology course either personally has participated in, or read about, practical demonstrations of the unreliability of eye-witness accounts of sudden traumatic events; e.g., the person who, by pre-arrangement with the instructor, suddenly bursts into the classroom and does something outrageous before just as suddenly leaving, rarely is described accurately by all classmates. Law enforcement agencies implementing such OIS procedures further cement the distrust between police officers and their employers.14
Whatever justifications sheriffs or police chiefs offer for policies that prevent officers from viewing video recordings prior to questioning, their employees experience them as personally distrusting, or as attempts to assuage the political and public relations demands of elected officials, citizen groups, or the media at the expense of fair and effective investigations.
In these times, distrust arrives at the scene of an OIS before the spent shells come to rest. Distrust is palpable as the yellow tape is being deployed. Distrust is corrosive. Distrust can cause police officers to be hesitant, if not reluctant, to take law enforcement action. Whether you agree with former FBI Director James Comey’s “Ferguson Effect” makes no difference. If reasonable people can disagree about whether such an effect exists, we are experiencing a state of affairs presenting a public safety threat and a present officer safety problem, as well.
Police body camera programs unilaterally imposed by law enforcement agencies seem to officers to be a further declaration of distrust by their employers. Unfortunately, the continuing clamor to affix cameras onto police officers’ bodies, a clamor renewed with each tragic and questionable use of deadly force, has resulted in very little collective bargaining activity on the subject to report in Florida. The main two developments have been the formation of committees to discuss body cameras when the agency has not already unilaterally implemented such programs; and, a novel, well-timed, and extraordinarily gymnastic application of Graham v. Connor, 490 U.S. 386 (1989), justifying the practice of keeping officers from reviewing available video recordings of their uses of force in advance of giving sworn statements about those uses of force.
One failing of the committees formed within agencies, of those formed among community interest groups, and even of those formed by legal professionals to consider police body camera programs is the failure to include police union representatives. The Palm Beach County Criminal Justice Commission, for example, established a committee to study body cameras composed of police chiefs, professionals, and other citizens, but not one representative from a law-enforcement labor organization was selected to participate. Similarly, the National Association of Criminal Defense Lawyers recently published a report with recommendations regarding police body cameras by a task force that did not include one police union representative or one active patrol-level officer.15
The committees within some agencies may be reasonable efforts to explore how body cameras will be used; though it also may be the case that agencies are using that process as a means of avoiding collective bargaining over the issue. The fact remains, however, that while committees are talking about the cameras, most agencies are still denying officers access to recorded evidence of their uses of deadly force in advance of their voluntary sworn statements; and the erroneous interpretation of Graham is gaining traction to support such policies. These circumstances can only lead to officers’ doubt, if not distrust, about the viability and benefit of body camera use, which of course ultimately undermines the agencies that seek to implement them.
The Graham argument for withholding readily available video recordings from police officers in advance of their statements goes like this: Because the Supreme Court held that an officer’s uses of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” allowing an officer to review a video recording of the use of force before giving a statement or writing a report about it will result in the officer modifying his or her description of the facts and circumstances to match the video. The subsequent account of the officer’s perspective, therefore, will not be what his or her perspective actually was on the scene at the moment deadly force was used.16 The gratuitous conclusion is that allowing a police officer to refresh his or her recollection of the incident in advance of giving a sworn statement about it, a fortiori, will result, at best, in an “unintentional untruthfulness.”17
Experienced law enforcement professionals know that truthfulness and accuracy are not mutually exclusive when it comes to officers’ accounts of their traumatic deadly force encounters. Those split-second judgments police officers make “in circumstances that are tense, uncertain, and rapidly evolving” as found in Graham are made under circumstances occasioning what psychologists have identified as “expectable cognitive distortions, including auditory perceptual exclusion (he didn’t hear the shots he fired), visual perceptual enhancement (he saw the slide of his handgun come back in slow motion), and memory impairment (he doesn’t recall how many rounds he fired).”18
Inaccuracies in officers’ human recollections captured in their virtually immediate sworn recorded statements at the scene, and in consequence of the expected effects upon their cognitive faculties and short-term memories of the violent confrontations, make law enforcement actions found reasonable by prosecutors under Graham more challenging to defend in civil actions brought long afterwards. Governed by the lowest standard of proof, civil actions arising from officers’ uses of force are more difficult for their employers to defend precisely because of the expected disjunction between their employees’ traumatically distorted cognitive accounts of the scene at the moment deadly force was used, captured in statements recorded under oath on-scene, as compared to objective video recordings of those deadly force encounters experts parse at their leisure.
Asking a police officer to recount from unaided recollection, step-by-step, how the original call for service came out on the radio, how he or she came upon the scene, each and every observation upon arrival at the scene, each and every movement of his or her own and of the suspect, and every reflexive response to each perceived threat culminating in a use of deadly force, and to articulate those accounts only moments after surviving that deadly force encounter, often will produce demonstrably inaccurate recollections. The unrefreshed recollections are replete with those clinically established “expectable cognitive distortions” — the by-product of “auditory exclusion” and “memory impairment,” among other things. The unrefreshed recollections are sworn recorded statements, and for all intents and purposes, are irrevocable. In consequence, the video-recorded deadly force sworn statements given by officers shortly after the incident are prime sources for impeachment in subsequent civil actions against them and their agencies; frequently with regard to collateral, extraneous things captured on the incident videos that the officer could not recall at the time or did not see.
Video recordings of unrefreshed voluntary sworn accounts of incidents by officers can also expose officers to administrative charges alleging untruthfulness, for misleading or misrepresenting statements, and/or for other employment policy violations unrelated to the actual use of force. In any event, the sounds and images captured by the cameras that law enforcement agencies are affixing now to their officers’ bodies are going to provide ready evidence for media experts and citizen activists to judge officers’ uses of force with the very high definition “20/20 vision of hindsight” the Supreme Court specifically warned of.
Against this backdrop, why would officers with cameras attached to their bodies voluntarily cooperate in investigations of their uses of force, especially in these turbulent times, when they can assert the same constitutional privileges the suspects they question routinely assert? The critical challenge is to find out how to encourage police officers’ trust of and cooperation with their employers in the collective mission to improve policing at the same time those employers are putting cameras on them to record their policing precisely because they are not trusted.
Police officers involved in uses of deadly force are more likely to cooperate in their employers’ or outside agencies’ investigations of incidents if they perceive the investigatory process is fair; i.e., that the expectable cognitive distortions and memory impairment that will result in some expectable inaccuracies in their accounts are not being preserved to impeach the truthfulness of their perspective and to challenge the reasonableness at the moment of their use of deadly force.
Denying law enforcement officers the opportunity to review readily available video recordings of their uses of force before answering investigative questions about those actions under oath will ensure police officers behave like suspects and will continue cleaving the divide between officers and the communities they are required to protect. Procedures that deny a police officer the opportunity to see what investigators and everyone in the world can see in questioning and judging his or her use of force after the fact are not consistent with a cooperative relationship. Such procedures disadvantage law-enforcement agency employees; but they disadvantage their law-enforcement employers, also, precisely because of the relative haste with which officers are subjected to questioning and the leisure at which all others can review and compare video of the incident and the recorded sworn accounts or reenactments. Mitigating those disadvantages is not collusive; it is imperative if policing is to be improved.
The two-dimensional images captured narrowly by body cameras in fixed positions do not accurately capture depths or peripheral activity, do not necessarily record activity where the officers’ eyes are looking, may reveal in low light what the human eye could not see, may record sounds the officer did not hear and cannot, therefore, conclusively replicate the breadth of the officer’s perspective at the moment. Cameras record events. Allowing officers to review recordings of their uses of force before answering questions about them enables officers to be reacquainted with the events captured by the recordings. Allowing officers to review the recordings and to be reacquainted with the events before explaining their actions allows them to be reacquainted with their perspective at the moment the recordings were made and to better understand the questions from investigators who have reviewed the recordings. Such procedures allow all of us to better understand their answers; if they choose to answer.
Denying officers the opportunity to review the recordings of their actions before answering questions from investigators who have formulated their questions after reviewing the recordings many times over, on large screens and using slow-motion and stop-action in the comfort of a command bus, makes officers’ voluntary sworn statements and cooperation in such investigations ill-advised from a legal standpoint. Officers always will retain their constitutional rights to refuse to answer questions. But we all need good officers to cooperate in investigations of their conduct if policing is to be transparent and in order for it to be improved. While there can be no guarantees, there are ways of ensuring that officers’ cooperation in investigations of their uses of force is encouraged and supported — by being informed and knowing.
Policies that allow officers to view body-camera video before writing reports and answering questions are neither novel nor antithetical to law enforcement’s ability to effectively police its profession. For instance, last year, a bill in California governing the uses of police body cameras stalled before advancing again in the State Assembly after a restriction on officers’ review of their uses of force recordings was removed.19 While comprehensive legislation regulating body cameras in that state failed to pass when the bill furthest along was withdrawn after a dispute over a collateral provision allowing surviving relatives to decide whether videos of officer deaths could be made public, the effort shows that officers’ rights and their employers’ interests can be effectively reconciled.
Elsewhere, in June 2016, an arbitrator ordered the Oklahoma City Police Department to suspend its entire body camera program until some procedures unilaterally implemented by the city and disputed by the Fraternal Order of Police were collectively bargained.20 One of the disputed issues in that case, which was found to be a mandatory subject of bargaining, was a provision authorizing immediate supervisors to review video recordings of their subordinates’ use of force recordings at any time.21
Yet even within that dispute, it is noteworthy that the parties in Oklahoma were not fighting over an officer’s right to view video of his or her work performance before giving an account of it. Indeed, this right was express in the Oklahoma City Police Department’s body camera Procedure 188.50, Review of Recordings, which had already been collectively bargained to agreement. This provision states, in relevant part:
“An officer will be allowed to review his or her body-worn camera recordings or the portion of another officer’s recording where that officer is captured:
“1. To assist with an investigation and completion of reports;
“2. Before making any statement or being interviewed, when the officer is the subject of an investigation. If the officer is the subject of an administrative investigation, he or she may have an employee representative/legal counsel present. If the officer is the subject of a criminal investigation, he or she may have legal counsel present[.]”22
If the primary purpose of implementing police body camera programs is to improve policing rather than to gather evidence to discipline or prosecute police officers, the officers need to buy into the methodology. In order for officers to buy into this most significant change in their terms and conditions of employment, they need to have a role in determining how body camera programs will be implemented.
Affixing cameras onto the bodies of every police officer to record every citizen contact will serve the purpose of improving police work only if law enforcement agency employers demonstrate trust in the employees to whose bodies they are attaching the cameras. Before police officers can earn the trust of the communities they serve, they must trust their employers. Allowing, if not requiring, officers to review readily available video recordings of their uses of force before being questioned about those uses of force is essential to building the trust between officers and their employing agencies that is necessary if police work is going to be improved. In turn, law-enforcement agencies and their employees’ unions meeting to exchange written proposals in good faith for the purpose of reaching agreements regarding the uses of police body cameras and the resulting video recordings is how they can begin to invest in trust.
So, will police body cameras improve policing in Florida? Maybe.
1 Compare Fla. Stat. §112.82 with Fla. Stat. §112.532.
2 The only amendment since 1998 not requiring broader disclosures to officers of material evidence by their law enforcement agency employers, was to Fla. Stat. §112.532(1)(c), which, effective July 1, 2003, restricted agency employers’ questioning of officers to only “one interrogator during any one investigative interrogation.” (Emphasis added.) Apparently, officers had been experiencing “suspect”-like questioning by their employers in policy investigations as coercive.
3 See also, e.g., Steven D. Clymer, Compelled Statements from Police Officers and Garrity Immunity, 76 N.Y.U. L. Rev. 5, 1309, 1312 (Nov. 2001) (citing Mary M. Cheh, Are Lawsuits an Answer to Police Brutality?, Police Violence 247, 268 (William A. Geller & Hans Toch, eds., 1996)) (“[I]t is a rare case where an officer personally feels the financial sting of a judgment….”) (emphasis added).
4 Despite Florida Public Employees Relations Commission (PERC) decisions consistently refusing to find waivers in even the most expansive management rights provisions, many management attorneys, nonetheless, insist on language filling multiple pages of collective bargaining agreements and redundantly listing 25 or more employment matters purporting all to be within employers’ exclusive prerogatives.
5 As of this writing, PERC has yet to decide whether and/or to what extent police body cameras are a subject of bargaining under Florida’s Public Employees Relations’ Act (PERA); albeit, the matter now is pending with regard to an unfair labor practice charge filed by the Fraternal Order of Police against the Jacksonville Sheriff’s Office.
6 The Violent Crime Control and Law Enforcement Act of 1994 allows DOJ to review, and to enjoin if necessary, the practices of law enforcement agencies that may be violating people’s federal rights.
7 Effective July 1, 2009, Fla. Stat. §112.532(1)(d) was amended to provide, in pertinent part, that whenever a police officer is under investigation and subject to interrogation for any reason that…might result in discipline, “all…existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation, must be provided to each officer…before the beginning of any investigative interview of that officer.” (Emphasis added.)
8 Fla. Stat. §112.532(1)(g).
9 Despite express warnings read to complainants about false statements being subject to charges of perjury, I know of only one agency in South Florida that actually charged and pressed for the prosecution and conviction of a complainant for filing a false complaint; the West Palm Beach Police Department (and their internal affairs unit did it twice). Despite evidence of demonstrably false complaints against police officers, sometimes video-recorded evidence, their law enforcement agency employers refuse to charge perjurious complainants. The purported reason for the refusal to charge complainants for false complaints is in the service of a broad social policy not to discourage citizen complaints against police officers. Understandably, my police officer clients never subscribed to any such social policy.
10 Fla. Stat. §112.532(1)(d).
11 Fla. Stat. §112.532(1).
12 Employers cannot remove from public records the references to initial disciplinary actions even in agreements reducing the discipline in advance of proceedings. See, e.g., AGO 77-48.
13 See, e.g., Palm Beach County Sheriff’s Office General Order 522.00.
14 Such criminal investigative procedures as a term and condition of a police officer’s employment likely are subject to some species of collective bargaining; albeit, this writer is unaware of any decision precisely on point by the Public Employees Relations Commission. Despite my counsel on the matter, I was never authorized to request bargaining over any agency’s critical incident or OIS procedures.
15 Joel Schumm, National Association of Criminal Defense Lawyers, Policing Body Cameras: Policies and Procedures to Safeguard Rights of the Accused (2017), available at www.nacdl.org/policingbodycameras.
16 Graham, 490 U.S. at 396.
17 See Daigle Law Group, LLC, What Happened to Perception of the Officer? Watching the Video Before Writing a Use of Force Report (Sept. 30, 2015) (emphasis added).
18 What appears within the quotation marks is reproduced verbatim from a police officer’s post-OIS fitness for duty psychological evaluation from this author’s files, with emphasis added. The evaluation recounts phenomena frequently reported by police psychologists in post-OIS fitness for duty psychological evaluations with which this author is familiar.
19 Assembly Bill 66 by California Assemblywoman Shirley Weber, D-San Diego.
20 In the Matter of Arbitration Between the City of Oklahoma City, Oklahoma and the Fraternal Order of Police, Lodge 123, FMCS Case No. 16-50120-6 (June 14, 2016).
21 Id. The FOP was concerned that the disputed provision would be used by officers’ immediate supervisors routinely to search recordings for minor policy violations in the absence of specific incidents or complaints, so as to unfairly “ride” targeted officers. The FOP had no issue with, and actually proposed, that supervisors other than officers’ immediate supervisors could access the recordings.
22 Emphasis added.
Gary E. Lippman is former general counsel for the Palm Beach County Police Benevolent Association, where he served for 15 years and responded as law enforcement officers’ counsel on-scene at more than 100 critical incidents. He has a Master’s degree in industrial and labor relations from Cornell University, and is admitted to practice in New York and Florida. Lippman has been concentrating on labor and employment law for 30 years, and is on the staff of the Police Policy Studies Council. After the officer-involved shooting of Michael Brown in Ferguson, Missouri, he was interviewed by the national Labor Relations Information System for a podcast on “Body Cameras and Collective Bargaining” (Oct. 28, 2014), and was published in The Florida Bar Journal, December 2016, “Will Police Body Cameras be a Mandatory Subject of Bargaining in Florida?”
This column is submitted on behalf of the Labor and Employment Law Section, Zascha Blanco Abbott, chair, and Robert Eschenfelder, editor.