Special Report: Hurdles Remain As Body Camera Advocates Renew Efforts
Between a contentious election for district attorney and a move to establish an external review board in Pittsfield, criminal justice reform and police oversight have been hot topics in Berkshire County. Less discussed: the use of body cameras for police officers.
In the first part of a two-part story, we’ll learn about why some police chiefs are skeptical about the use of body cameras—and why the ACLU disagrees.
On January 22nd, the Pittsfield City Council voted to create a Police Advisory and Review board. Replacing the city’s moribund Public Safety Advisory Committee, the new board is the city’s third external police review body since 2015. While it disappointed some activists pushing for a more stringent oversight board, it constitutes the most substantive structure in Berkshire County for communicating community concerns to a police department.
But this story is about a different method of promoting trust and accountability between a community and the police: body cameras.
At a December 2018 meeting of the City Council's Ordinance and Rules subcommittee where the specifics of the board were being debated, a perennial city hall agitator brought up the police shooting of Daniel Gillis.
In September 2017, Gillis was killed by Officer Christopher Colello when, according to the Pittsfield Police Department, he charged officers with a knife during a domestic disturbance. Colello was cleared of any wrongdoing by both the department and then-DA David Capeless in January 2018. But the incident left Gillis’ loved ones and community activists shaken. A protest was held over the shooting a month later.
“We will never know if the city’s resident who was gunned down by a police officer who pumped seven bullets in him would be alive today if the officer was fitted with a body camera," said Craig Gaetani, a fixture of city council meetings and a constant critic of Pittsfield’s leadership. “But the mere fact that a police officer fitted with a body camera might have acted differently than this police officer did begs for the fitting of body cameras on all of our police officers.”
At the time, body cameras weren’t on the table for the council to discuss. So: why not?
“I think body cameras have a role in any contemporary law enforcement agency. But it’s not as simple as just purchasing or acquiring cameras," said Pittsfield Police Chief Michael Wynn. He says cameras can increase a department’s transparency and also provide valuable training to officers. Despite that, Wynn says the state hasn’t created a legal foundation for their use.
“There’s a lot of complex underlying issues that the commonwealth has failed to address, and there’s a significant amount of liability associated with implementing a body camera program without having good legislation in place, and we’re not there yet," he told WAMC. "We’re not there as a commonwealth, and as the chief of this organization, based on the advice that we’ve received from the Massachusetts Chiefs General Counsel, until we get some legislation and regulation, we’re not prepared to go down that path yet.”
One major sticking point Wynn identifies is the state’s wiretapping laws.
“And the fact that there’s no caveat or carve-out for law enforcement," said the chief. "So, as you’re aware, this is a two-party consent state and theoretically we could be in contact with somebody who declines to consent to be recorded but we have them legally detained and we can’t get an answer. What do we do at that point? We’re obligated by our duty to detain them, and they’re telling us they don’t want to be recorded, and the policy says the recorder wants to be on. Most of the technology, most of the hardware that exists doesn’t have video only option, so we can’t put it on to stop the audio recording.”
Wynn says he’s concerned about forcing his officers to commit a felony in such a situation.
“In addition to the wiretapping statue, the other big question is ‘where does it fit into the public records law’ and ‘who has access to the recordings,’” posed the chief.
He says any body camera recordings would currently fall into public records law, with no advice to law enforcement as to how it would be negotiated to protect individuals’ privacy.
As far as the Gillis shooting, Wynn says body cameras wouldn’t have revealed any hidden truths.
“We were as transparent in that particular case as we legally could be, and I don’t think any more would have come out as a result of body camera footage than came out through our investigation and the district attorney’s investigation,” he told WAMC.
While he says he’d discuss a body camera program in Pittsfield, Wynn has doubts about what it would really bring to the city.
“There has been ample study in areas of the country that have body cameras that despite claims from the proponents that the use of body cameras does not decrease use of force," he said. "In some cases, it’s been shown to the do the opposite.”
Statewide, Wynn’s skepticism isn’t necessarily the norm.
“I would say it absolutely runs the spectrum from ‘it’s very important in my community’ to ‘my community isn’t concerned,’” said Mark Leahy, the Executive Director of the Massachusetts Chiefs Of Police Association.
He says conversation around body cameras was hotter several years ago than it is now.
“I think it was that initial post-Ferguson, Missouri concerns that we need to know what our officers are doing," Leahy told WAMC. "And honestly, from the police chiefs’ perspective, a lot of us looked at it and said ‘we want the public to know what we encounter, so let’s give that a whirl.’”
Leahy says concerns about legality and costs dampened the enthusiasm.
“There are lots of concerns about privacy," he said. "There are a lot of fundamental concerns about what it costs to store all of this recorded media, what it costs to prepare discovery requests for people who are preparing for court trials. There’s been a lot of concerns about that because the cameras themselves aren’t that expensive, it’s the back end costs that for a lot of small communities, they weren’t expecting that.”
He echoed Wynn’s concerns about state wiretapping laws.
“For all these years that we’ve had cruiser video cameras, you have to walk up and say, good evening, I’m officer so-and-so from the X Y Z police department and our conversation is being recorded," said Leahy. "And if people said, I don’t want to be recorded, we had to shut off the microphones.”
Leahy sees the law as a hindrance to adopting body cameras.
“We’re in a real minority of states that have that kind of two-party consent, and most states – as long as one person knows, that’s sufficient, or a police officers in general were free to do it with their cruiser cameras as a part of their duties – but, you know, we have a very, very liberal constitution in Massachusetts and we have very strict rules about that, so sometimes it made things difficult and almost counterproductive,” he said.
President Obama’s Task Force on 21st Century Policing issued its final report in May 2015. It advocated for the use of body cameras, citing studies that showed better police and citizen conduct when all parties were aware of their use, as well as research that strongly suggested that the cameras could reduce police use of force and complaints against the police. It also notes the potential privacy questions the cameras would raise.
The Massachusetts Chiefs Of Police Association’s September 2015 response to the report alludes to legislation the group filed that would make a change to state law. Specifically, the proposed law would have exempted body cameras from the state’s existent wiretapping laws, to protect officers from the liability Wynn fears. The response also suggested that the state re-examine its public records law to clarify who would be allowed to see collected footage as to not overburden police departments.
Leahy says reaction to the chiefs’ proposals was anemic.
“We wanted a lot of things clarified. There are a lot of questions about the Massachusetts wiretapping statute. There were a lot of concerns about what the future was going to look like in Massachusetts if we were going to start recording," he told WAMC. "And that just had no traction at the statehouse at all. None.”
THE ACLU RESPONDS
Other groups in Massachusetts are promoting body camera programs in departments statewide.
“The ACLU believes that body-worn cameras are one of many tools that can increase police accountability," said Rahsaan Hall. "They are by no stretch of the imagination a panacea to solve all of the issues around policing, but if used right, and with the proper privacy protections, can be used to reduce police misconduct and have greater levels of accountability among police and keep members of the community safe as well as keep police officers safe.”
Hall is Director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts. He says the wiretapping laws that Wynn and the Massachusetts Chiefs Of Police Association point to are not actually as fraught with liability.
“The concern that the police chiefs raise I believe is unfounded," he told WAMC. "The state wiretap statute prohibits the surreptitious recording of conversations, meaning, the secret recordings or intercepting of people’s conversation. There is by no stretch of the imagination a way that a police officer wearing a body-worn camera in the performance of their duty could be in violation of wiretap statute if they are using it correctly.”
Hall says the body cameras would only violate the law if used secretly, without notice, or by affixing them to undercover officers.
“I’d be hard-pressed to find a district attorney’s office that would prosecute a police officer for wearing a body-worn camera and recording information that was done in the performance of their duty while wearing the body-worn camera in accordance with proper policy,” he said.
Hall doesn’t think the carve-out solution for law enforcement the chiefs proposed is appropriate.
“I think it is an effort to go a step further than what is necessary. The law as it is now would allow for police officers to wear born-worn cameras," said Hall. "There are several municipalities where officers are wearing body-worn cameras and are not in violation of the state’s wiretap statues.”
He says it would be a mistake to create separate legal rules for law enforcement officers. Hall acknowledged that cost is an understandable roadblock for some communities, but pointed to ways around it.
“There’s federal funding available for that, and there are options for state bulk purchases of equipment to address that,” said Hall.
In November 2018, the Department of Justice’s Office of Justice Programs spent more than $12 million in grants to support jurisdictions around the country implementing body camera programs.
Tomorrow, WAMC will air the second half of this special report on body cameras. It will explore other models for body camera programs around Massachusetts, as well as what legislators are doing to answer some of the questions raised by both police chiefs and the ACLU.