When I interviewed him for my column this week, Fraternal Order of Policy Executive Director Jim Pasco differentiated citizen-shot video from police dash cam and surveillance video this way:
How do you know the video hasn't been edited? How do we know what's in the video hasn't been taken out of context? With dashboard cameras or police security video, the evidence is in the hands of law enforcement the entire time, so it's admissible under the rules of evidence. That's not the case with these cell phone videos.
Pasco may be right about the potential for citizen-shot video to be edited, though from what I understand that's pretty easy to detect. The problem with Pasco's statement is that there are too many stories where dash cam and surveillance camera video has gone missing, particularly in cases where there's alleged police misconduct.
- The Tennessean reports on its front page today that 1,300 dash cam videos from the Nashville police department have been erased. The police department blames the video camera vendor. The vendor blames the police department. More disturbing, DUI defense attorneys interviewed by the paper who had sought video of their clients' arrests were told by the police department that the videos didn't exist, not that they had been erased.
- That's actually the second story about missing or edited dash cam video to make news this week. The other is about a pregnant illegal immigrant who was arrested two years for a minor traffic violation, jailed, then, in a cruel practice that seems to be more common than I'd have thought, was forced to give birth while shackled. The officer who made the unusual arrest claimed there was no video of the incident. The woman's lawyers were finally able to obtain the video last week, though portions of it are missing. The video opens with the officer telling the woman that his camera is running.
- I noted in the column the case of Jack McKenna, the University of Maryland student whose beating at the hands of riot police after a basketball game last year was captured by several cell phones, but was mysteriously missing from the footage taken by a police surveillance camera pointed at the spot where the beating took place. The police officer in charge of the campus surveillance system is married to one of the officers who was disciplined in the McKenna case.
- In another example, also from Prince George's County, Maryland, in April 2005, TV reporter Andrea McCarren and a cameraman were pulled over by seven police cruisers as they followed a county official for a story on the misuse of public funds. McCarren later claimed in a lawsuit that she was abused during the stop, resulting in a torn rotator cuff and dislocated shoulder. Prince George's County officials never gave McCarren's attorneys dash cam video of the incident. Their excuse? They said all seven dashboard cameras were malfunctioning on the day McCarren was pulled over.
- Last year, Birmingham police beat an already-unconscious driver after he crashed during a high-speed police chase. One officer turned the dash camera off in mid-beating. The police department then gave the district attorney's office a version of the video with the police beating edited out.
- In March, Justice Lee Ann Dauphinot on Texas' 2nd Court of Appeals noted in a dissent the troubling frequency with which potentially exonerating dash camera footage seems to turn up missing:
Repeatedly, we are asked to review records of DWI stops during which there is no audio or video record of the event. Why do I believe there should be audio or audio and video record of the DWI stops? Because the law requires, and did so at the time of this stop, either an audio or audio and video record or the filing of a racial profiling report for each stop. See Tex Code Crim. Proc. art. 2.133-.135. The City of Fort Worth has conscientiously provided the means for complying with this law.
An appellate court should give no weight to testimony that is disproved by the objective record of the actual events. And I believe that the majority should address the issue of an officer's intentionally disabling the audio recorder and testifying directly contrary to the audio record. …
At some point, courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for. If the law requires recording to qualify for the exception to filing racial profiling reports, then is the officer not obligated to make sure that there is tape in a traditional video camera or that a digital camera is activated? When the actual recording conflicts with the officer's testimony, the defendant's testimony, or another witness's testimony, a court cannot pretend that the emperor is wearing new clothes just because someone testifies that he is.
It's commendable that more and more police departments are using dash cameras. I'm less enthusiastic about the increasing government surveillance of public spaces. But neither is a compelling reason to prevent citizens from protecting themselves by making their own recordings of their interactions with on-duty police officers.