Pleasanton police weigh confidentiality, transparency with body-worn camera policy

Officers now required to turn on cameras whenever they interact with public, with few exceptions

Body-worn cameras for law enforcement officers have swept the country over the past few years, both as a method for police to authenticate their statements and to keep officers accountable.

While Pleasanton Police Department officers have used body cameras since 2012, they are now required to turn on their body cameras whenever they interact with a member of the public.

This includes responding to police calls, talking with witnesses or suspects and otherwise engaging with the public for a safety issue unless "it is not safe or practical to do so," according to the updated policy.

The revised policy went into place on Sept. 14, roughly two months after San Jose resident John Deming Jr. was shot and killed by Pleasanton police officer Daniel Kunkel during an altercation. Deming, 19, reportedly confronted police after they responded to an early-morning burglary alarm and found him inside a specialty car shop in downtown Pleasanton one year ago last week.

Alameda County District Attorney Nancy O'Malley later cleared Kunkel of criminal charges, but controversy arose after the investigation revealed Kunkel didn't have his department-issued body camera turned on when he fatally shot Deming. As a result, no known video exists of the shooting.

"The law enforcement landscape has unquestionably changed these past years, and our ability to capture police encounters and events through digital imaging will serve us by enhancing officer safety, improving agency accountability, reducing agency liability, simplifying incident review and enhancing new recruit and in-service training through post-incident use of videos," Pleasanton Police Chief Dave Spiller said last week.

A year after the department's first fatal police shooting in about a decade, Pleasanton police have settled into a "new normal" with body-worn cameras.

Previously, it was up to the officers' discretion to use the body cameras whenever footage could be helpful to an investigation. Now they are required to turn on the camera during all interactions or must have a good reason for not doing so.

"Officers are expected to record per policy any type of contact," Pleasanton police Sgt. Eric Gora said. "Anything outside of grabbing a cup of coffee or lunch."

However, officers and privacy advocates alike agree that police body-camera policies and procedure are still fluid because of issues such as personal privacy.

"Our officers are still becoming accustomed to them and realizing the positive effects that can come from them," said Officer Ken McNeill, president of the Pleasanton Police Officers Association. "There's still a little bit of a learning curve."

Many questions remain. Where does recording interactions end and public surveillance begin? Could video be used in matters unrelated to the case for which the recording occurred? What about sensitive cases where victims don't want to be taped? And who has access to view the videos?

Pleasanton's new policy accounts for most of these questions, but police departments nationwide have varying policies -- some are specific and clear about privacy issues, some are vague and some departments don't use body cameras at all.

"The transition in body-worn camera policy better serves the profession and this police department given the current reality law enforcement is facing today," Spiller said. "The more structured, less permissive policy addresses officer accountability."

Handling sensitive situations

Gora heard dispatch alert him to a possibly stolen truck nearby, and minutes later he had the truck in his sight.

He clicked his body camera to start the recording, which allows the 30 seconds before the button press to also be logged into the camera's memory. A few minutes later, after the driver led officers on a chase down Valley Avenue, about 10 officers involved were able to log body camera footage showing each step of the pursuit and arrest.

Manufactured by TASER International, Pleasanton police body cameras are worn on the shoulder, not the chest or lapel, so the camera can see over the dashboard while the officer is driving. The video will record everything the officer sees, Gora said.

But while body cameras are helpful for many situations, he said, officers have to be cognizant that victims, potential witnesses or other residents might not want their conversations recorded.

Some people don't like to have the inside of their homes recorded. Victims in certain situations -- such as domestic abuse cases, cases with child victims or sexual assault investigations -- prefer to avoid having their faces on camera.

"Sometimes, we see people at their worst," Gora said. "We see them in the hospital; we see them after a traumatic moment."

Pleasanton's policy allows officers to turn off their cameras if they are talking with a victim, a witness or a confidential informant in these situations.

In addition, officers who are not actively patrolling or responding to cases do not have to wear body-worn cameras. For example, detectives who are pursuing cold cases and who often wear suits and record conversations with audio devices don't have to wear their cameras, nor do undercover officers whose cover would be blown by an obvious recording device.

Shahid Buttar, director of grassroots advocacy for the San Francisco-based digital rights group Electronic Frontier Foundation, said while his organization advocates for public viewing of body camera footage, the issue becomes tricky when it comes to these sensitive police interactions.

"This is one of the problems with police body cameras," he said. "These are private conversations."

Pleasanton officers are also allowed to stop a recording if they need to consult with a superior about sensitive information, such as informing them that a witness wants to be a confidential informant. However, Gora said, the officer must state they are stopping the video and must say that the video has restarted once they turn the recording back on to avoid allegations of improper video editing.

"It's more important for us to get the statements," he said.

Not 'Big Brother'

Privacy advocates such as Electronic Frontier Foundation staff attorney Sophia Cope appreciate the idea of body cameras, but only when they're backed by firm policy.

"Any community should be able to trust that the camera is there so they're being treated fairly," she said, "as opposed to just another tool for surveillance."

Advocates' fears are that police officers will have their cameras running 24/7 and will evaluate that footage later for future use against private citizens, Buttar said.

"Without proper safeguards, it can be another method of unconstitutional mass surveillance," he said.

In Pleasanton, Gora said the fundamental purpose of body-worn cameras is accountability -- not surveillance.

While officers' cameras aren't on all day, they are "buffering" whenever they're on an officers' shoulder. That means when an officer hits the record button, the previous 30 seconds of footage gets recorded. Once the button is pressed to stop the video, the audio and video automatically shut off and resume buffering. The rest of the day's footage that wasn't actively recorded is lost.

"We're not recording their entire 24-hour shift," Gora said.

McNeill agreed, saying higher-ranking officers will later review some footage at random, but not to evaluate residents who aren't involved with active cases. Typically, officers will review footage to make sure the cameras are being used as described in case reports.

"We don't use our cameras in that sort of way," McNeill said, referring to surveillance. "We're not doing wide-sweeping surveillance with our cameras. These are for very specific contacts or calls for service. It's not something where we're going to go out to an area and have the camera on and check later to see who walked into the frame."

On the other hand, the videos also aren't meant to be used to catch officers gossiping or breaking minor rules, such as chewing tobacco on the job, police spokesman Lt. Brian Laurence said.

"We're not trying to be 'Big Brother' and use these as a way to supervise our employees," he said.

He said officers are trained to understand they're always being recorded, either by their own camera, by security cameras or by citizens' phones.

"Knowing that we're always being recorded, you're always a little more cognizant," Laurence said.

McNeill said officers have no expectation of privacy while outside the station and on the job.

"Our officers would rather have their version of events in HD, rather than seeing someone else's grainy cellphone video from across the street," he said.

Storage and public access

Policy surrounding storage and release of the body camera footage can be just as important from a privacy perspective as the actual recording process.

Pleasanton police download their footage into TASER International's cloud-based storage system using a rack of download stations. The footage is stored off-site, and everything recorded is downloaded, Laurence said.

That process isn't cheap. It costs Pleasanton police $87,000 per year for the digital storage, equipment maintenance and for a two-year equipment replacement. The initial cost for the shoulder-mounted TASER body cameras was $25,000 since Pleasanton police were able to trade in their former Scorpion cameras for an equipment credit, Gora said.

If officers want to review footage, they have to go through a formal chain-of-evidence process, Laurence said.

"We hold all of our body-worn cameras to the same level as any other piece of evidence," he said.

McNeill said the police union provided its input when the department was revising its body camera policy, and giving the officers the ability to review footage before court was an important point for the union.

While footage can be used in court cases and by prosecutors in making legal decisions, it does not fall under California's public records protections and is treated like investigative reports, not as public records.

Police investigative reports are broadly protected from public release in California.

"Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of ... any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes," are included in a list of exemptions in the California Public Records Act.

Body camera footage can be requested by the district attorney's office or defense lawyers, just like a case report or photographs of a crime scene, Gora said.

Footage of any crime can be used in court, even if the footage was made during investigation or pursuit of another case. An example would be if police stopped someone for shoplifting and the body camera captured someone in the background in the process of stealing a car. The footage of the car theft could be used in court, even if police weren't investigating that crime at the time.

Cope said it's important that these policies get revised nationwide to make body camera footage available for public and media inspection to reveal cases of police abuse.

However, the privacy of victims must again be considered. Police agencies such as Pleasanton's maintain the position that because police interactions are often sensitive, it wouldn't be wise to allow the footage to be publicly disseminated.

Cope said it should be up to individual communities, not just the police department, to decide what should be public and what should be kept secure.

While policies vary, most law enforcement industry agencies recommend that data is kept confidential unless access is approved by a chief or authorized officer.

The International Association of Chiefs of Police recommends "only authorized users" be allowed to access body camera footage for "legitimate and authorized purposes." The Police Executive Research Forum notes departments must adhere to their state's public records laws when deciding whether to disclose footage to the media and public, but sensitive footage of victims could fall under certain exemptions, depending on the state.

However, the American Civil Liberties Union recommends body camera footage be made public with the permission of those recorded. The organization also recommends redactions be made to shield victims' identities, such as changing the victim's name or blurring their face.

While the national debate will continue to change how body cameras are used, Gora agreed that the cameras are the "new normal" for officers.

"We're never going to go back on this policy," he said.

Tri-Valley body camera policies

The following are excerpts from or descriptions of policies governing Tri-Valley law enforcement agencies' use of body-worn cameras:

* Pleasanton: "All Department members, including Police Managers who are assigned a BWCS (body worn camera system) shall wear the device when working any uniformed assignment and shall activate the device as provided in this Policy. Except as otherwise provided, any Department member ... shall wear and activate the device during pre-planned enforcement encounters such as probation searches, parole searches, arrests or search warrant entries, gang enforcement, or as directed by a Supervisor."

* Livermore: All officers are equipped with body-worn cameras, and officers are allowed to turn off the recording if the victim or witness requests to not be on camera.

* Dublin/Alameda County Sheriff's Office: Deputies are required to wear body cameras and start recording when they are interacting with the public in regards to a case. Dublin contracts with the sheriff's office for police services, so Dublin's department follows the sheriff's camera policy.

* San Ramon: "The San Ramon Police Department may provide members with access to portable recorders, either audio and video or both, for use during the performance of their duties. The use of recorders is intended to enhance the mission of the Department by accurately capturing contacts between members of the Department and the public."

"The portable recorder should be activated in any of the following situations: (a) All enforcement and investigative contacts including stops and field interview (FI) situations."

* Danville: "The purpose of this equipment is to accurately document the events, actions, conditions and statements made during vehicle stops, pedestrian stops, arrests, disruptive inmate confrontations, medical responses and other critical incidents in order to verify the accuracy of crime reports, jail incident reports, collection of evidence, and testimony in court. Recordings also enhance the ability to review procedures for the purpose of employee evaluation and training."

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