IACP Special: Is OIS Video the Next Hot-Button Issue?
After a rapid-transit officer kicked up a public dirt storm by shooting an unarmed passenger during a platform melee in the San Francisco Bay Area last New Year’s, the California law firm of Meyers Nave was hired to conduct a wholesale “best practices” review of his agency’s operational policies and general orders.
The firm included this recommendation in the “Deadly Force Investigations” section of its recently released report:
“Officers should not view video of an incident prior to being interviewed [because doing so] allows them to either subconsciously fill in the blanks where there are no memories of the incident or preplan for alibis for substandard conduct. [Seeing video before talking for the record] erodes the public’s faith in the process and unnecessarily impacts the investigation.”
“This report,” one law enforcement attorney told PoliceOne, “can now be cited as ‘conclusive authority’ that officers should not see relevant video before giving their formal statements” about a shooting or other use of force — a development hailed by some, deplored by others.
Indeed, conflicting views on this matter may be shaping up as a hot-potato police union issue, according to knowledgeable observers we interviewed. The topic also drew hallway discussion among attendees at the recent IACP conference as a burgeoning administrative and policy concern.
With the booming proliferation of dash-cams, TASER cameras, security surveillance cameras, as well as civilian picture phones and camcorders, more and more force incidents are certain to be caught on tape. And disparities between what involved officers subjectively remember and what a video recording “objectively” shows can be pivotal in use-of-force investigations, with profound career consequences.
Yet it is believed that most departments do not yet have written policies on whether and when involved officers may see and discuss video evidence. “There’s no common way of dealing with this issue, no consensus on it,” says police attorney Michael P. Stone. “But the transit shooting report is going to stir things up.”
We’re interested in your comments and concerns on this subject, so please submit your candid observations below. Meanwhile, to stimulate discussion, we offer the thoughts of a variety of force experts, including law enforcement attorneys, an IA commander, and a behavioral scientist. (Additional lawyer comments can be read on the website of American for Effective Law Enforcement, the legal research and training organization, at: www.aele.org/video.html.)
Pro – Restriction
Those who influenced the Meyers Nave recommendation have no problem with an officer seeing video of his incident after he has given a formal statement. But they argue that pre-statement viewing could, in fact, put officers at a grave disadvantage by confusing or corrupting their “pure” memories, by violating the spirit of the law, and by raising public suspicion of agency collusion and cover-up.
Cmdr. Richard Webb, head of the Internal Affairs Group for LAPD, conferred with Meyers Nave as a private consultant. Speaking for himself and not as a representative for his department, which he says “is still wrestling with the video issue,” he explains that most agencies properly rely on the Supreme Court decision of Graham v. Connor in “reviewing and adjudicating use-of-force issues.”
That landmark case, he points out, specifically cautions against “20/20 hindsight” in evaluating a force encounter. “The perspective of a reasonable officer on the scene — what was going through his mind at the time force was applied — is what’s important,” Webb says.
If an involved officer sees video before investigators can mine his memory for what influenced his state of mind, “it infuses other perspectives that he might not have been aware of, artificially broadening” what he knows about the incident, Webb explains. “He may be confused, he may be shocked, he may try to adjust his recollections to conform to what he sees on film. And then what do you have? You’ve got yourself a mess, in which the truth is obfuscated unintentionally.”
It is better, in his opinion, for an officer to view any available video after giving a statement and address discrepancies and omissions then. He’s confident that “sophisticated investigators and adjudicators” can understand “human behavior under dire circumstances,” realizing that “cops get tunnel vision and will not know all the facts of an incident as it unfolds.” Thus they will not equate “human frailties of memory” with an attempt to deceive.
Atty. Kim Colwell, who led the Meyers Nave policy review and drafted the recommendations, agrees. “Once officers see a video, they tend to change their story,” she says. “Not necessarily to lie but because they are open to suggestion from what they see on tape as opposed to what their memory is.
“If the case evolves to civil litigation and you have a statement based on their pure, true memory it doesn’t look like you tried to assist them or influence them by showing them the video first. Ultimately, it takes ammunition away from a plaintiff.”
Also, she and Webb note, there’s a legitimate concern about public perception. In Webb’s words: “The public will wonder, ‘If you don’t allow witnesses or criminals to look at video before you interview them, why do you let officers?’ The public wants to have a sense of comfort that there’s no collusion on behalf of officers. An OIS investigation is, after all, a criminal investigation in part.”
“Openness, accountability, and credibility are best for police departments these days,” says Colwell.
Michael Stone, who gained national renown as one of the police defense lawyers in the Rodney King cases, is emphatic in his counter-view. Preventing an officer from viewing video until after he has given a formal statement, Stone declares, “is bad policy.”
His preference as an officer’s attorney is to “sit down one-on-one with the officer in a private setting and take a very detailed statement of what he remembers” about the encounter before any substantive questioning by investigators. If possible, he wants to accompany the officer on a walk-through at the scene as well. “I want to understand everything I can about the situation.”
Then, Stone says, he and the officer should be allowed to view any known video. “The officer can articulate what he remembers versus what he is seeing on the tape, even in the presence of investigators. If discrepancies are acknowledged and addressed right there, there’s less tendency to be suspicious about what the officer says when his recollections, accounts, and sequencing are at odds with the film.”
If the officer commits to a formal statement first, then sees video, there’s a greater tendency to “believe he was telling a false or misleading story until he saw the tape and therefore must be lying. There are many examples of officers giving truthful interviews to investigators but because their recollections didn’t match video evidence — assumed by investigators to be ‘the reality’ — they were charged with giving false and misleading statements,” Stone says.
“Cops will never recall a use-of-force event the way the camera records it. The greater the number of cops involved, the greater the variations. Differences become more profound when the event is protracted, dynamic, and violent; and the greater the threat, the higher the odds that the officers’ recall will not coincide with the film.”
Dr. Bill Lewinski, executive director of the Force Science Research Center, which specializes in studies of use-of-force dynamics, agrees discrepancies are inevitable. Because of camera angles and other photographic limitations and because of the way the human brain perceives and stores information under stress, “a video is never an accurate reproduction of what an officer experiences in an event,” he says.
Indeed, even in research scenarios where officers have been outfitted with head cameras for maximum perception compatibility, there tend to be significant differences between what the camera shows and what officers remember in the midst of emotionally intense, rapidly unfolding encounters, Lewinski has found.
He favors pre-statement screenings because he feels videos can strongly stimulate and enhance memory through recognition, “even better than a walk-through. A ‘raw’ statement taken before an officer sees a video may not be a thorough, factual representation of what happened. It could be viewed more as a memory test with potential disciplinary and criminal consequences than a pursuit of the facts of the incident.
“Unfortunately, there are a lot of investigators and prosecutors who like to play the ‘gotcha’ game. They treat officers like criminal suspects by laying in wait for inconsistencies and exploiting them instead of pursuing a fair, impartial, open-minded, and comprehensive fact-finding mission.” For more Force Science commentary on video viewing, click here.
Atty. Martin Mayer, who provides counsel to police management and who lectured on recent legal developments at the IACP conference, says that speaking for himself and not necessarily for his clients, he can see value in most cases to permitting pre-statement viewing. But he objects to absolutes on either side of the question, which causes him to take issue with the Meyers Nave recommendation.
“It all depends on the circumstances,” he says. “Generally speaking, allowing officers to view video can be very beneficial if we are trying to find out what happened as opposed to catch them in a lie. But there may be times when you want to withhold a screening to help determine if they are being truthful and candid.”
For example, say an officer is accused of hitting or slamming a handcuffed suspect against a wall in a sally port, and there’s surveillance video of the incident. “In that case, we do want to know what the officer will say before he sees the tape, because, quite frankly, there isn’t a lot of confusion. Did the officer hit the handcuffed suspect or not? What he says before he knows about the tape is critical.
“We need to decide about viewing on a case-by-case basis. There shouldn’t be a rigid rule.”
Whether video is seen before or after a formal statement, Lewinski and Stone are adamant on one point: The officer should be carefully prepped for the viewing beforehand. Both expressed a similar concern. In Lewinski’s words:
“Like most other people, the officer may believe that the camera is a reliable recorder of the incident. But in reality, a video camera generally records only a portion of an incident and may not present the true context of the event. It’s only a two-dimensional representation from a particular perspective and tends to distort distance and other elements associated with depth of field. Generally it doesn’t faithfully record light levels. Some cameras record so few frames per second that they miss significant aspects of an incident that happen faster than the camera can capture, and so on.
“If the officer doesn’t understand these limitations or doesn’t understand the vagaries of human memory, including perceptual anomalies that commonly occur under stress, he may be disturbed by how differently the video portrays the incident and doubt his own recollections — including the perceptions he had during the action that prompted him to deliver whatever force he used.”
Investigators and evaluators of confrontations need to understand all this as well, in order to properly assess an officer’s actions and satisfactorily reconcile apparently incriminating discrepancies between a formal statement and the video evidence.
Moreover, although they take polar-opposite positions regarding timing, Mike Stone and Kim Colwell agree that an officer should have legal representation present whenever he views video of his incident and whenever he is interviewed.
The experts PoliceOne consulted also concur that whether and when video should be viewed is “a very hot issue” that is “going to be very big” with police unions.
“It’s undoubtedly going to be bandied about more than it has been in the past,” Cmdr. Webb predicts. “There will probably be some meet-and-confer type of discussions. Or departments may just decide, ‘This is what our policy is going to be, and that’s it.’ ”
But Stone suggests that unions won’t take what they perceive as adverse policy lying down. “If they don’t see policies they perceive as being fair to officers,” he says, “you’re going to see an uprising.”
Our thanks for Wayne Schmidt, executive director of Americans for Effective Law Enforcement, for prompting this discussion. For an incisive article by Schmidt on officer privacy and the legal rights of citizens to photograph police activity, click here.
To view this full article on PoliceOne.com please click here.
by Charles Remsberg
October 14, 2009