Albuquerque's Police Chief Says Cops Have a 5th Amendment Right To Leave Their Body Cameras Off

Harold Medina made that argument during an internal investigation of a car crash he caused last February.

Albuquerque, New Mexico, Police Chief Harold Medina operated his department-issued pickup truck "in an unsafe manner" on February 17, when he ran a red light and broadsided a car, severely injuring the driver. So concludes a recent report from internal investigators who looked into that shocking incident.

Duh, you might say if you have seen surveillance camera footage of the crash, which shows Medina crossing Central Avenue, a busy, four-lane street, against the light. He crosses the westbound lanes through a gap between two cars, forcing one of the drivers to brake abruptly, before barreling across the eastbound lanes, where he rams into the side of a gold 1966 Mustang driven by 55-year-old Todd Perchert.

Although Medina's recklessness seems obvious, the Albuquerque Police Department's Fleet Crash Review Board (CRB) earlier this year concluded that the crash was "non-preventable." How so? Medina, who was on his way to a Saturday press conference with his wife when he took a detour to have a look at a homeless encampment, said he ran the light to escape an altercation between two homeless men that had escalated into gunfire at the intersection of Central and Alvarado Drive.

While "the initial decision to enter the intersection is not in question," Lt. James Ortiz says in the Internal Affairs report, "the facts and circumstances do not relieve department personnel of driving safely to ensure no additional harm is done to personnel or to citizens." Medina, Ortiz says, clearly failed to do that: "By definition, driving into a crosswalk, darting between two vehicles driving on a busy street, and crossing through an intersection with vehicles traveling eastbound were unsafe driving practices." In this case, he notes, those unsafe practices "resulted in a vehicle collision with serious physical injuries to the victim, including a broken collarbone and shoulder blade, 8 broken ribs (reconstructed with titanium plates after surgery), collapsed lung, lacerations to left ear and head, multiple gashes to his face, a seven-hour surgery, and hospitalization requiring epidural painkiller and a chest tube for nearly a week."

Ortiz not only disagrees with the CRB's conclusion about Medina's crash; he says the board never should have reviewed the incident to begin with, since its mission is limited to accidents "not resulting in a fatality or serious injury." Ortiz says Commander Benito Martinez, who chairs the CRB, violated department policy when he decided the board should pass judgment on Medina's accident.

Martinez acknowledged that department policy "prohibited the CRB from hearing serious injury crashes" and that "allowing such a case to be heard would be a policy violation." Why did he allow it anyway? "He explained that his reasoning for permitting the Chief's crash to be reviewed by the CRB was based on his belief that someone wanted the crash to be heard," Ortiz writes. "Cmdr. Martinez clarified that he believed someone from Internal Affairs wanted the case to be heard by the CRB to ensure full transparency. However, he did not consult with anyone in Internal Affairs to verify the accuracy of this assumption."

Both the CRB's decision to review the crash and its implicit exoneration of Medina are hard to fathom. But Medina's explanations for the third policy violation identified by Ortiz—the chief's failure to activate his body camera after the crash—are even weirder.

"After the collision occurred, the shooting victim approached," Ortiz writes. "The victim informed the Chief that he was okay and had not been shot. Chief Medina asked the victim to remain at the scene, but the victim refused and fled southbound on Alvarado. Another citizen approached the Chief and reported having seen individuals leaving a black truck and fleeing away from the scene. Chief clarified with the witness that no one was outstanding. It is important to note that these interactions were not recorded and are contacts that require mandatory recording."

That mandate is not just a matter of police department policy. State law requires that on-duty police officers wear body cameras and that they activate them when "responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a peace officer and a member of the public." The statute adds that "peace officers who fail to comply" with such requirements "may be presumed to have acted in bad faith and may be deemed liable for the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence."

Medina offered two puzzling excuses for leaving his camera off. He "cited intermittent conversations with his wife, who was a passenger in his unmarked patrol vehicle at the time of the collision," Ortiz says. "He claimed there was a right to privileged communication between spouses, which specifically exempted him from mandatory recording requirements." But the relevant policy "does not provide for nonrecording based on spousal privilege."

Even more troubling, Medina said he "purposefully did not record because he was invoking his 5th Amendment right not to self-incriminate." Since "he was involved in a traffic collision," he reasoned, he was "subject to 5th Amendment protections."

Think about the implications of that argument. Body cameras are supposed to help document (and perhaps deter) police misconduct. But Medina is suggesting that cops have a constitutional right to refrain from recording their interactions with the public whenever that evidence could be used against them. By turning on their cameras in those situations, he argues, police could be incriminating themselves. That is the whole point.

Medina received two official reprimands for the camera violation and the reckless driving that injured Perchert, a casualty of the police chief's desperation to save his own skin. In similar situations, other Albuquerque police officers have been fired. But after the crash, Albuquerque Mayor Tim Keller hailed Medina as a hero who is "out on the front line…doing what he can to make our city safe."

[This post has been updated with information about New Mexico's statutory requirements regarding body cameras.]