Will Body Cameras Improve Policing in Florida?

• Author: Lippman, Gary E.
• Position: Police Body Cameras, part 2

Part one of this article, in the December 2016 issue of the Journal, explored whether the growing use of police body cameras, a practice with a variety of impacts on officers' employment, would be the subject of mandatory collective bargaining in Florida. I now address the broader question of whether such devices would improve the delivery and cost of policing services in Florida from a legal perspective.

As to the central question raised in the title, while many would respond with a "yes," as an attorney with experience representing a large police union, I believe the answer is a sound "maybe." What follows is my assessment of the legal impacts of the use of police body cameras on officer discipline, agency risk management considerations, and law enforcement-community relations, among other factors.

Indisputably, these are very turbulent times for law enforcement. Citizens' cell phone cameras are regularly capturing policing activities in real time, with many fatal confrontations between officers and citizens featuring race as a common denominator of officers who shoot and those who are shot. Fatal confrontations recorded by bystanders are now commonly used in traditional and social media outlets as evidence that police cannot be trusted to police themselves and to support that certain "yes" answer in response to the question posed here. It seems logical that if citizens with cameras are recording police intentionally misusing force because officers believe no one is watching, attaching cameras to officers will make them aware the world is always watching, and, thus, policing will improve.

This analysis, however, assumes elected sheriffs and appointed police chiefs down the chains of command to the officers on the streets think and act in uniformity. It assumes all officers are aligned along a "thin blue line," ready to cover up for each other until they cannot because videos show what really happened. Yet, law enforcement agencies are places of employment, having the same organizational strata, and experiencing the same organizational dynamics, contests, and discord between management and labor that exists in other workplace settings. In this author's experience, I never witnessed any line of protection when truth failed to support it.

One fact supporting my "maybe" assessment is that law enforcement officers are subject to more complaints by citizens than other public safety first responders; thus, they are subject to more scrutiny by their employers; and as a consequence, the security of their continued employment is subject to more peril. A comparison of the Florida statutes governing employment investigations of firefighters and law enforcement officers, respectively, is illuminating on the matter of which public officers are subject to more scrutiny and discipline. (1) Written into our laws in 1986, "Rights of Firefighters," never has been amended. F.S. [section]112.82, gets virtually no wear and tear, and for that reason, never has needed mending. What is known as the "Police Officers' Bill of Rights" has been amended a half-dozen times since 1998 alone, and all of those amendments expanded officers' due process rights to review the evidence against them in advance of their employment-related "interrogation[s]" and discipline. (2)

Trained to be watchful of citizens, police officers have learned to be wary of their supervisors and agencies, also. If it is an organizational truism that "[stuff] rolls downhill," it can seem to roll down more quickly within law enforcement agencies. Such agencies and their sworn employees, therefore, are not monolithic in assessing body cameras. Yet, whatever the conflicting interests of officers and their agencies, both are often linked in collective liability for the consequences of individual officers' actions; and policy-level defendants are named more frequently now in the captions of federal civil rights actions premised upon policing policies alleged to encourage officers' unconstitutional uses of force. Even when actions against individual officers are successful, their agencies often elect to hold them harmless, citing F.S. [section][section]111.065, 111.07, and 111.071. (3)

Based upon these realities, it would seem reasonable to conclude that agencies might better defend their body camera policies, and the actions of their officers captured by the cameras, by inviting their officers' representatives (a union in most cases) to participate as full partners in the formulation and implementation of body camera programs. Unfortunately, it seems most agencies and their counsel treat the topic with a reflexive resistance to union involvement. Union demands for negotiations over the camera programs are portrayed as efforts to encroach on employers' management rights to exercise control and discretion over operations, methods of work, equipment, and the like. (4)

Ultimately, if police body cameras are going to improve policing, police officers have to trust the law enforcement agency employers attaching the cameras to them, and it is this author's opinion that law enforcement agency employers can gain that trust, and benefit from it considerably, by shared responsibility for their programs. The primary stakeholders in this matter, therefore, are law enforcement employers and their employees' unions.

Law-enforcement employers and their employees share a community of interest, and enormous pressure from the consumers of their services, to improve policing. For deployment of police body cameras to improve policing, the primary stakeholders have to trust each other. For there to be trust between the primary stakeholders, policies pertaining to the uses of police body cameras must be the product of collaboration. (5) Police body camera policies established by collective bargaining will better enable law enforcement agencies to defend such policies in court as well as in the court of public opinion. Such collaborative efforts may even reduce the chances the federal Department of Justice will seek injunctive relief under 42 U.S.C. [section]14141(b) regarding officers' conduct recorded pursuant to body camera programs. (6)

The realities, at least from the perspective gained during this author's career, are that no police union is against holding its members accountable for their conduct; and, more often than not, video recordings will exonerate their members. The source of conflict is less the use of cameras, but agencies' withholding the recordings from officers before questioning them in detail about the incidents captured on the recordings. Agencies and activist groups may argue that withholding from police officers the recordings of their actions before questioning them is the same technique police themselves use when questioning suspects before they can get their story straight. Why, then, is it not an appropriate investigative technique to use when officers themselves are questioned about their uses of force or other interactions? The problem with the premise is that it engages officers as unworthy of...