The fatal shooting by three Menlo Park police officers of a burglary suspect who reportedly drew a gun during a foot pursuit on Nov. 11 has shed light on how the realities of implementing new technology such as body-worn cameras can backfire.
The Menlo Park Police Department bought 40 VIEVU cameras, at about $1,000 each, in late 2013. The department's protocol, which was developed with input from its citizens advisory group, states that all on-duty contact with citizens shall be recorded.
Residents then expected that the officers' cameras would have video footage of the shooting. But that isn't the case: Only two of the three officers were wearing the devices. One camera was turned on immediately after the shooting, and one appears to have been left off, according to the District Attorney's Office and Police Chief Bob Jonsen.
One officer, Sgt. Jaime Romero, did activate his camera right after the incident, the police chief said, "probably as quickly as he physically could."
The third officer's camera had been turned in for repairs at the start of his shift. The cameras are mailed back to the manufacturer in Seattle for repairs, Chief Jonsen said. The department had not initially ordered backup units, but has now bought 10 additional cameras.
Menlo Park's policy does include an exemption for urgent, dangerous situations: "At no time is a member expected to jeopardize his/her safety in order to activate a recorder or change the recording media. However, the recorder should be activated in all situations as soon as practical."
Menlo Park Mayor Ray Mueller suggested that how the camera activation policy works under practical conditions may need a look.
"If you're going to have the cameras, there needs to be a consistent policy that they're just on, you leave them on. You never know when a life-threatening situation, or any situation, is going to happen. You don't want the first thing you have to think about to be oh, I have to turn my camera on," Mr. Mueller said. "If I were in that situation, turning it on would probably fall low on the list."
Stressing that as far as the cameras go, it's now an issue of policy refinement and training, he said, "I have every confidence that the chief will address it well."
Technological limitations also come into play: While the officers work 12-hour shifts, the current camera batteries last only about three hours. Chief Jonsen said that his department is looking into buying batteries with longer capacity. On the plus side, technology has made storing the videos on a server, which used to be a major cost for police departments, relatively inexpensive, according to Menlo Park.
Atherton started using VIEVU body-worn cameras about seven years ago. Its policy states that officers "should activate the recorder during all enforcement stops and field interrogation situations and any other time that the (officer) reasonably believes that a recording of an on-duty contact may be useful."
Lt. Joe Wade of the Atherton police department said the cameras are a way to get an accurate view of what's going on, and have their benefits. "We don't get a ton of complaints, but I can tell you that we are able to exonerate quite a few complaints that we do get by using the cameras, instead of it turning into a 'he said, she said' kind of thing."
The San Mateo County Sheriff's Office does not use the cameras, according to spokesperson Deputy Rebecca Rosenblatt.
The U.S. Department of Justice researched the implementation of body-worn cameras by 63 agencies across the United States, and published the findings in a report released this year. It emphasizes how important the decision is about what types of encounters to record:
"This decision will have important consequences in terms of privacy, transparency, and police-community relationships. Although recording policies should provide officers with guidance, it is critical that policies also give officers a certain amount of discretion concerning when to turn their cameras on or off. This discretion is important because it recognizes that officers are professionals and because it allows flexibility in situations in which drawing a legalistic 'bright line' rule is impossible."
Very few departments have chosen to require recording of all public encounters, according to the DOJ report.
Former judge comments
Independent San Jose police auditor and retired judge LaDoris Cordell has a different take.
"My view is that officers should have no discretion. A good protocol should define when the camera goes on and off. If it's a good protocol, you put the camera on any time you encounter anybody in the public -- anybody. When you're done, turn it off," she said. "There should be no discretion. That's my view."
And a use protocol, developed with full transparency and public input, should be created before any officer steps into the field wearing a camera, she said. Batteries with longer lifespans are available, as are units with more memory capacity, making the technological drawbacks not a sufficient reason to limit when the cameras should be activated, she noted.
She has been fighting for three years to bring body-worn cameras to San Jose police officers, who have been embroiled in a bitter dispute with the city over working conditions. Earlier this year, that department agreed to a 90-day pilot program to test the cameras, but the victory was short-lived: The chief suspended the program about a month ago in order to confer with the police officers union, Ms. Cordell said.
"Every police department in this country should have them," she said. "Every single one. That's my firm belief."
Reluctance on the part of departments to adopt the cameras is nothing new, despite statistics showing that using them tends to result in a significant drop in the number of citizen complaints, including over excess force.
The DOJ report found that 75 percent of the 254 agencies it surveyed weren't using cameras as of July 2013. The opposition may arise from both the officers as well as city management: Seattle, for example, may see its plans to deploy the tools derailed by worries over how to handle public records requests for the videos, according to news reports.
Other law enforcement concerns include possible damage to information gathering by sources reluctant to be recorded, the amount of time needed at the end of shifts to download the videos and enter the identifying tags to enable a search of the database, and, as Menlo Park has seen in the wake of the shooting, managing community expectations of what will be recorded and when.
Chief Jonsen praised his department for voluntarily adopting the cameras and putting them to use while on duty. "They have been exceptional about activating them."
Habits, however, don't develop overnight. Officers need time to make reaching for the camera second nature, particularly if their dominant hands are moving to a weapon, he noted.
The Menlo Park Police Department is reviewing its camera policy, among others, in the wake of the shooting.
"We've been talking a lot about this internally," Chief Jonsen said. "We would love for the community to accept that we're trying our best to be transparent."
The DOJ report highlights what happens when camera implementation falls short: "If police departments deploy body-worn cameras without well-designed policies, practices, and training of officers to back up the initiative, departments will inevitably find themselves caught in difficult public battles that will undermine public trust in the police rather than increasing community support for the police."
Menlo Park's policy does contain some of the clauses recommended by the DOJ report, including those involving turning the cameras on for on-duty contact; recording retention time; and who can review the recordings within the department. Still, the DOJ study suggests there's room for improvement.
The report notes that "expectations can undermine an officer's credibility if questions arise about an incident that was not captured on video. This is one reason why many agencies require officers to articulate, either on camera or in writing, their reasons for turning a camera off in the middle of an incident or for not turning it on in the first place."
But Menlo Park's policy doesn't require that an officer document why the camera wasn't on. The department's protocol also has no description of the penalties for failing to comply with the recording policy.
"It is something we will bring into the discussion," Chief Jonsen said.
Another issue is how long the police department will retain the recordings. The DOJ report found an average 60- to 90-day retention time in a survey of 254 departments. Menlo Park's policy requires that even non-evidentiary videos be kept for two and a half years. Atherton stores recordings for two years.
Menlo Park Police Cmdr. Dave Bertini said the department keeps the recordings that long because of the statute of limitations for lawsuits.
"We wanted to make sure there's no way someone is going to come sue us and we had already destroyed the evidence," he said. It's the same length of time the department uses for digital audio recordings.
He noted that the cameras benefit the officers as much as everyone else. "It protects us -- 99.9 percent of the time, it shows that we're doing the right thing. That other 0.1 percent, when you screw up, you should be held accountable."
Mr. Mueller, who had led the effort to formulate a privacy ordinance for the city's use of automated license plate readers, questioned the retention policy.
"I'm going to want to review the data retention policy with the chief. It's going to have to be explained to me why the recordings need to be kept for that long," Mr. Mueller said, adding that he hadn't known that the videos were stored for so long.
In the case of license plate readers, the council on a 3-2 vote adopted a law that requires deletion of that data after six months, despite the police department's support for keeping the information for a year.
Cmdr. Bertini said the department is not open to discussing a shorter retention time for camera video. "I think the departments with 60 to 90 days (retention) are doing themselves a disservice."
Given the advent of even newer law enforcement technology, such as drones, Mr. Mueller wants to start looking at an omnibus policy or ordinance to govern privacy concerns. "Technology is coming, and I'm not saying that's a bad thing, but it's prudent to continue looking at these issues."