Draft policy: New Bedford may let police watch body camera footage before writing reports
CategoriesFeatures

Draft policy: New Bedford may let police watch body camera footage before writing reports

Come this summer, some New Bedford police officers are set to begin patrolling the city with the latest generation of body cameras strapped to their chests. With high-resolution video and audio, the devices will memorialize interactions between the public and officers.

Though body-worn cameras are framed as a police reform tool for transparency and accountability, the policy governing their use determines their effectiveness. 

According to a draft policy still under development as of early this month, the New Bedford Police Department may allow officers to review footage before they file their initial reports on incidents, the police union’s president recently told the Light. That position aligns with other area policies. But it undermines accountability, experts say, and goes against best practices and state recommendations. 

“Allowing law enforcement to review body-worn camera video prior to writing an initial report destroys the goal of the program to increase trust in law enforcement,” said defense attorney Alyssa Hackett, on behalf of the Massachusetts Association of Criminal Defense Lawyers. 

Critics are concerned that officers will consciously or subconsciously tailor their reports to what the camera shows in order to support their narrative, possibly undermining the credibility and integrity of their statements. 

When officers should review their body camera footage remains a debated subject among advocates, legal experts and law enforcement officials. Just last year, a national policing organization updated its recommendations on the issue, stating officers involved in a “critical incident” — such as a shooting or another use of force — should not watch any related body camera footage before making their initial statement.

“The reasons for this recommendation change … are grounded in fairness, science, and the law,” wrote the Police Executive Research Forum.

New Bedford is among many police departments bucking best practices. Many departments, including Fall River, Westport, and Boston, have either encouraged or permitted review of footage before officers file their reports — even for critical incidents like shootings — with some policies citing “accuracy” as the reason. However, lawyers, academics and even law enforcement bodies are challenging that claim. 

State task force says officers shouldn’t see footage first

Following incidents, responding officers must file reports that include a narrative of what the officer observed and did. These reports incorporate perception and rely on the officer’s memory (an imperfect, but still valuable, source).

In 2022, a state task force (under order by the new police reform bill) recommended that officers be prevented from accessing or viewing any recording of an incident before filing an initial report. The Police Executive Research Forum has not gone as far, insisting on limiting footage review for “critical incidents” like shootings or other uses of force.

“During the ‘perceptual interview,’ they should describe their perceptions (what they saw, heard, felt, believed, experienced before arriving, etc.) before, during, and after an incident,” PERF states. “After the perceptual interview, officers should be given the opportunity to provide a video-informed statement by reviewing [body-worn camera] footage and offering clarifications that they feel are appropriate.”

It is “fair to all involved parties and comports with the relevant law,” PERF continued. “Both sides have an interest in recording the participating officer’s perception of a critical incident, untainted by what the video shows, as well as the officer’s thoughts after seeing the video.”

“This approach should also improve the community’s confidence in the police by subjecting police officers to the same interview and interrogation practices that investigators apply to civilian suspects,” PERF stated. 

Some New Bedford officers are set to be equipped with Axon body cameras as soon as this summer. Credit: Axon

Many experts who argue against “pre-review” support a policy that allows officers to subsequently view the footage and file any clarifications or additional details in a supplemental report, which remains distinct from the initial one.

According to New Bedford Police Union President Lt. Evan Bielski, the department’s draft policy would allow officers to choose whether or not to review the footage before writing a report, including for critical incidents.

“What I’ve seen from most policies, and I believe ours is going to have this, is the option,” Bielski said. “It will be what [the officer’s] attorney recommends. I know some attorneys want to view; others want to write a statement out first.”

Police Chief Paul Oliveira did not respond to an interview request or a list of emailed questions about the program and policy, including when the draft policy will be finalized, when the program will launch, and when officers will be permitted to review footage relative to filing statements. 

Mayor Jon Mitchell also did not respond to a request for comment. 

Can police officers review body camera footage before writing reports?

!function(){“use strict”;window.addEventListener(“message”,(function(a){if(void 0!==a.data[“datawrapper-height”]){var e=document.querySelectorAll(“iframe”);for(var t in a.data[“datawrapper-height”])for(var r=0;r<e.length;r++)if(e[r].contentWindow===a.source){var i=a.data["datawrapper-height"][t]+"px";e[r].style.height=i}}}))}();

Read the full breakdown of body-worn camera policies

“It’s a tough one. You could probably talk both ways on that all day long,” Bielski continued. “You’re gonna get people on both sides of it.”

Bielski noted a concern held by district attorneys and police, which is that defense attorneys could use discrepancies between the reports and video footage to weaken prosecutors’ cases.

Bristol County District Attorney Thomas Quinn III agrees with the view held by some police agencies.

“The police officers should have the opportunity to review their own body camera footage in relation to police shootings and use of force investigations,” he said in a statement. “It is reasonable to afford them the opportunity to view the events … which have been recorded prior to writing a report.”

But defense attorneys challenge that notion. 

“Any worries that [body-worn cameras] will be used to catch officers in minor discrepancies is overstated,” Hackett said. “Small discrepancies and unimportant details are never the subject of cross examination. All reasonable people, including jurors, understand that minor factual mistakes are a normal function of memory.”

“That’s a terrible policy to have — that we’re afraid we might get caught in lies, so we’ll allow them to tailor their report,” said Ryan Sullivan, a Boston-based defense attorney. “It doesn’t mean that if their perception of something and what is caught on video don’t exactly line up that there’s a problem or that they’re lying.” 

Hillary Farber, a criminal law professor at UMass Law, recently published research in which she argues police should “write before you watch.” 

“It doesn’t make sense for the officer to look at the footage before memorializing his or her account of the events,” said Farber, who also served on the state’s body camera task force in 2022. 

Body camera footage and police reports serve as distinct forms of evidence, both of which can corroborate and inform a case: “We need to develop policies and procedures that will preserve those pieces of evidence separate and distinct, and allow those who rely on that information to not have them entangle,” she said.

Just as witnesses are sequestered or prohibited from talking to one another before being interviewed, because discussion can bias or alter their statements, experts argue that officers should be precluded from viewing footage for the same reasons.

“There’s always the recorded footage that is available as a standalone piece of evidence,” Farber said. “Why not also have the officer’s recollection of events untainted by that footage? There are limits to what a camera is going to be able to pick up or record … there may be more relevant information that’s not caught on camera.”

The ACLU of Massachusetts, like the task force, recommends officers be barred from viewing footage before filing initial statements and reports on an incident. 

“I think one of the problems with body-worn camera programs is that the police are unilaterally in control of the video footage,” said Kade Crockford, director of the technology for liberty program at ACLUM. “There have been cases in Massachusetts and other parts of the country where police want to tell a certain kind of story.” 

“Criminal defendants are not given access when they give statements to law enforcement,” Crockford said. “It’s a really unfair advantage that the police get if they’re able to carefully review the tapes and see what is captured and what is not … it can allow them to lie about what happened but do so in a careful way.”

PERF in its updated recommendations on footage review said department leadership should meet with stakeholders, including community groups, before implementing the policy in order to answer questions and address any concerns. 

“Neglecting to have these important conversations … could cause unnecessary pushback and impede timely implementation,” the national policing organization wrote.

240 body cameras, $1.8 million

The city is purchasing 240 Axon cameras with help from a state grant. (The city budget covers 258 police officers, but the department has only 211, the union recently said.) The five-year contract totals $1.8 million, and includes training and data storage, which is often the largest expense.

Some officers are set to be equipped as soon as this summer. 

In addition to dictating when officers review footage, the department’s final policy will also dictate what footage gets released and when — another aspect that can undermine the efficacy of a body camera program.

State law governs how long departments must retain footage, and under what circumstances they may release it in response to public records requests. For example, footage for a death investigation must be retained permanently, footage on use of force for 10 years, and traffic stops for 3 years. 

Departments may cite exemptions under public records law, such as an ongoing investigation, as a reason to delay or withhold the release of footage. Public access to body camera footage has been inconsistent across Massachusetts, with some departments stating they did not have the time or resources to review and redact footage for release. 

A recent ProPublica investigation also found that across the country, departments released footage of civilians killed by police officers in only a fraction of cases. This refusal to share footage hindered outside investigations into misconduct and weakened the programs as accountability measures. 

It is unclear if all New Bedford officers, including narcotics detectives, will be equipped with the cameras, or just patrol officers, as Oliveira did not respond to questions. Officers in the narcotics unit routinely interact with the public and conduct stops and searches. 

Bielski said officers are largely on board with the cameras, and that it will take time for them to get accustomed to the change. 

“It could give the public a better perspective of what actually goes on in situations … you’ll have a live view and be able to see the whole interaction in what went into that incident,” said Bielski. “It should be good for both the public and for us.”

An earlier application for state funding signed by Oliveira stated the department hoped to adopt a body-worn camera program “as an affirmation of our transparency to the community that we service.” Time (and the department’s final policy) will determine if the city’s new program achieves its stated goal.

“[Body-worn cameras] are not a panacea,” said ACLUM’s Crockford. “The policies and procedures that police departments use to govern [the cameras] really have a huge impact on determining to what extent the technology does serve as an accountability measure.”

Email Anastasia E. Lennon at [email protected].

The post Draft policy: New Bedford may let police watch body camera footage before writing reports appeared first on The New Bedford Light.