The Trickiest Issue Your Local Police May Be Tackling

Bodycams, cellphones, other recording devices — law-enforcement has both a weapon and a challenge at hand

Cops can film citizens via body-worn cameras, and the public can film police from cellphone cameras. It has not always been a societal tradition, but cellphone prevalence, technology, and law supporting the right to record police activity are mainstream norms.

Nowadays, being a street cop is akin to being in every single scene of a Hollywood movie hit, minus the mega-millions payout and box-office royalties. In fact, much of the police activities filmed by the public dwarf any production Hollywood has to offer. Who can deny the spontaneity, the authenticity, the true grit? These attributes are all juicy morsels, and the theater is wherever cops are present. And, like misplaced opportunities rolled out at film awards extravaganzas, thorny and snarky political statements abound. Hey, welcome to the 21st century!

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In the frame. In August 2014, a New York City Police Department (NYPD) chief distributed an agency-wide memorandum entitled “Recording of Police Action by the Public,” reminding its contingent of cops that citizens have the right to record the police in public, providing no one is physically interfering with or obstructing law enforcement actions. It has become a part of doing police business, not only in the NYPD,but also among the 18,000-plus law enforcement agencies throughout the U.S.

The NYPD memo concluded, “mere recording of an incident does not constitute interference” and referred to the rights accorded by the First Amendment. Still, problems haunt some cop shops. The NYPD has dealt with lawsuits, some still pending, stemming from some of its cops’ allegedly arresting citizens for recording police actions in public places.

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In May 2012, the U.S. Department of Justice (DOJ) disseminated “DOJ Guidance” to the Baltimore PD and other law enforcement agencies to follow, summarily stating: “While courts have only recently begun to refine the contours of the right to record police officers, the justification for this right is firmly rooted in long-standing First Amendment principles.”

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Whether recording is via media crew or John Q. Citizen, American police forces are largely accustomed to just about everyone having a cellphone along with the regularity of videotaping law enforcement activities. Practices are threaded into the American tapestry, despite some contrary instances.

In an interview conducted by Isidoro Rodriguez of The Crime Report, NYPD police Officer Daniel Bavuso described the era of recording police officials:

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“I worked in Manhattan, and everywhere you go people are recording you. Even when we weren’t talking to someone, or making an arrest, even when we were just walking down the street, people would stop and take pictures and record us. Just walking down the street, not even interacting with anyone. But it’s the NYPD.  Sometimes they just like the department, sometimes they’re trying to get us doing something. It’s not a big deal. That’s your right, you’re allowed to record, you’re allowed to stand and watch. Go for it.”

Although that is one police officer’s view, others disagree with being recorded by citizens — as implicit in the NYPD lawsuits cited above. Arizona State Senator John Kavanagh, a former NYC cop who entered politics, introduced SB1054 (“Relating to Video Recording of Law Enforcement Activity”) in 2016, seeking to widen the divide of citizens recording cops. Senator Kavanagh authored his bill to impose a minimum of 20 feet between those recording and cops in action, creating distance between all elements. The American Civil Liberties Union (ACLU) did not care for Sen. Kavanagh’s bill.

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Mike Borland, president of the National Press Photographers Association (NPPA), said, “It’s mind-boggling that there are still law enforcement officers in major metropolitan departments who don’t know they can be photographed doing their job in public.” Referring to a case in Boston, Borland continued, “It’s downright maddening, the steps being taken in Boston as a result of this ignorance. This snowball of a public relations disaster would not be happening if officers were properly trained and then properly disciplined when they break the rules.”

In August 2014, NPPA attorney Mickey Osterreicher issued the following declaration: “There’s no law anywhere in the United States that prohibits people from recording the police on the street, in a park, or any other place where the public is generally allowed.”

Cops’ point of view. Understandably, no law enforcer wants an object pointed at him. Needlessly, it demands a cop taking the time to decipher the object (cellphone or not), and that required act robs cops of officer safety protocols and distracts from corralling menacing, violent individuals.

Although it may be perfectly legal, exciting, and acceptable in the minds of citizens armed with cellphones to record police, cops are not stroking their egos when it appears they harbor angst over such actions; they are concerned by the disruptions posed by the activity. Although rebuked by the ACLU, it is exactly that contention upon which Arizona Senator Kavanagh based his SB1054 legislation: unwarranted distractions for police.

The number of false allegations against police declined once the accusers became aware that body-worn police cameras captured footage to refute the claims.

Watch any YouTube video depicting police encounters recorded by Joe Camerasleuth or Mary Shutterbug, and you will invariably see a police officer’s eyes darting and assessing perceived threats. Can you blame them, really? Attention diversions can cost someone’s life, including that police officer’s.

Nevertheless, it is the public’s constitutional right to record cops without impeding police activities, increasing the inherent challenges of police duty.

Badge behind the lens. With screams for more police accountability in recent years, applications of technology in law enforcement saw the birth of body-worn cameras. A 2013 survey conducted by the Police Executive Research Forum (PERF) resulted in a rather weak showing: only 25 percent of the 500 police agencies solicited reported using body-worn cameras.

Costs were cited as prohibitive, storage of data remains an issue, and privacy rights are self-explanatory. However, the advent of body-worn police cameras is still perpetuating; more and more departments are outfitting their cops with the ability to record interactions with folks, capturing point-of-view police activity resulting in some phenomenal benefits.

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When we examine the human nature perspective, the number of false allegations against police declined once the accusers of police misconduct became aware that body-worn police cameras captured footage to refute their claims. One may wonder how much Deanna Griego enjoyed egg on her face after she falsely waged a sexual assault charge against a New Mexico policeman whose footage from the camera attached to his uniform debunked her allegation. That’s one for the records.

Despite the huge advantage in recording one’s own evidence, leading to exoneration, some cops are not yet comfortable with body-worn cameras, citing how they do not wish to be tethered to Big Brother. As was the case when dash-mounted video systems were installed in police cars, cops were initially opposed to the gadgetry.

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In time, those oppositionists came around and realized the technology was more a help than a hindrance. Current trends indicate that today’s forward-thinking cops want body-worn cameras, knowing the imperative nature of having evidence to defend against erroneous complaints and for evidentiary value to support criminal investigations.

The Journal for Quantitative Criminology empirically compiled the many benefits sought from using body-worn cameras:

“Proponents of the body-worn cameras assert that they will increase police accountability and transparency, improve police officer conduct and citizen behavior, reduce unwarranted complaints against police officers, increase officer and citizen safety, decrease police use-of-force incidents, assist in criminal prosecutions, facilitate officer training, and build trust between the police and their communities.”

The one significant derivative that dissuades police officers and their agencies from implementing body-worn cameras is the huge potential for citizens’ privacy rights being forfeited via police recordings. Whether it be a victim, witness, or passing bystander, neither the police nor their agency wish to be on the hook for violating someone’s privacy.

There is irony in allowing everyone else to film publicly, largely uninhibited, while police entities are essentially accountable to prevent such circumstances. The public thoroughfare becomes a two-way venue (general population) with a one-way responsibility (police censorship). With that, we realize the mixed feelings pertaining to police and body-worn cameras.

Achieving mutual understanding and respect is the objective.

It is just one more thing for police to consider, and it may explain the undercurrent swirling around the cops who derive angst over being recorded in public. A domestic violence victim approaching police for help and refuge (going into hiding) from her agitator beckons absolute discretion versus being exposed. How can cops adequately assure privacy rights and safety in that scenario? Any Johnny-on-the-spot can record and expose that already-frightened victim.

Behavioral Traits. Despite any perceived contentions over police being recorded by bystanders and police recording their own activities, it will always default back to equitable interactions between police officials and members of society. Achieving mutual understanding and respect is the objective. As elucidated by OpsLens Contributor David Thornton in a recent article, community policing creates “safer police and community contacts.” Nurturing respectful interactions, no matter the dynamics, will always galvanize human relations.

An article published in Science Of Us revealed a study authored by Cambridge University professor Barak Ariel in which an astonishing 93 percent drop in police complaints resulted after law enforcement agencies started using body-worn cameras. Summing up his findings, Ariel stated, “I cannot think of any [other] single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.” Partnering with the Department of Justice, PERF conducted its own survey regarding body-worn cameras and found similar results.

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Offering his behavioral two cents, NPPA’s attorney Mickey Osterreicher echoed, “The police aren’t going anywhere. The media [aren’t] going anywhere. We need to find a way to do our jobs without interference.” No argument here.

A certain group of civilians famously known as The Police sang, “I’ll be watching you…” and another group who are the police are watching out for you, and there’s ample footage on record. It’s all a matter of legal perspective and respectful coexistence. It appears cameras are behaviorally influential.

A favorite police chief for whom I worked reiterated often the axiom of John Wooden, as follows: “The true test of a man’s character is what he does when no one is watching.”

Stephen Owsinski is a retired law enforcement officer whose career included assignments in the Uniformed Patrol Division and field training officer (FTO) unit. He is currently a senior OpsLens contributor, a researcher, and a writer. This OpsLens article is used with permission.

Read more at OpsLens:
Respect the Rank
Dereliction of Duty

meet the author

Stephen Owsinski is a LifeZette contributing editor. Owsinski is a retired law enforcement officer whose career included assignments in the Uniformed Patrol Division and Field Training Officer (FTO) unit. He is also a columnist for the National Police Association.

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