Today the San Jose Police Department will begin wearing body cameras to capture specified incidents and activities of officers on patrol.  There are written guidelines the officers are supposed to follow regarding when the camera should be rolling and when it should be turned off.  The mandatory use of cameras is meant to promote officer and citizen safety alike.

Officers will be able to record events that take place in public places as well as in private places under certain circumstances.  The right to record in public places is not shocking.  People can record in most public places all they want (in theory).  Police will also be allowed to record in private places where they are lawfully present.  An example of this scenario is where there is a call to 911 for a domestic disturbance.  Officers are legally allowed to respond to the private dwelling of, for example, a couple in a fight.  The officer may then come inside the residence while recording and investigate the scene, question the victim, witnesses, and the suspect.  All of this, including the private space will be recorded.

There are a few exceptions where officers are supposed to not activate the recording device.  Among these exceptions are where a victim requests no recording, and for example in locker rooms.  However, there are of course exceptions to these exceptions as well, and the SJPD guidelines actually contradict themselves in Sections 8 and 9 regarding when to record and when to not record witness statements.  An officer may record a victim or witness even if they tell the officer not to record them.  The officer may surreptitiously record via audio to preserve evidence of the conversation.  It’s worth noting that if this was done by a private citizen it would be considered the crime of wiretapping.  Obviously cops are given some leeway when it comes to violating laws in order to enforce the laws.  It is illegal to surreptitiously record a private conversation in California.  You have probably heard the quote: “this call may be monitored for quality assurance” when calling large corporations.  Now you know why there is this disclaimer.  If you know you’re being recorded the other party is no longer doing it without your knowledge and consent.  Cops in SJ are now recording whether you like it or not.  This means incriminating statements will be captured on record, police misconduct (may) be captured, and private spaces and affairs may be captured.

With the increased awareness of the frequency of excessive use of force against minority populations, the new policy may promote greater accountability.  The department will, however, allow and require officers to review the videos before writing their reports.  This can mean that reports may actually reflect reality where in the past officers were able to write their subjective “recollection” of an incident.  As a defense attorney I am unfortunately all too aware of missing and accidentally unrecorded events when a suspect and an officer’s story differ entirely.  With strict guidelines and department policies requiring the use of cameras, hopefully officers follow the mandate to actually utilize them.

The problem is that their use is not state mandated, it is voluntarily done by the department.  Which is a step in the right direction and I’m sure well-intentioned.  But it also means that there is no sanction for accidentally not switching on a camera when there is a confrontation between a cop and suspect.  Indeed, SJ’s policy specifically states that there will be times when activation of the camera before an incident will be impractical.  When I think about times this might apply to, I think of where there is an officer involved shooting or use of force.  Of course these are the times we need recordings the most.  Why not leave cameras rolling for the entire shift?  Well, there are places officers should not record, such as inside hospitals.  The simple solution then should be to mandate that officers are to have cameras activated at all times except in places specifically prohibited.  Coming up with a list of prohibited places shouldn’t take too much effort.  But then the department might respond that private conversations that don’t involve officer and suspect interaction should not be recorded.  But isn’t everything a cop does while on duty subject to public scrutiny?  Frankly, I talk to officers on a regular basis while they are on duty, and I wouldn’t want my private conversation recorded with them.  So perhaps the guidelines are a good middle ground.  Record when there’s an investigation, but don’t record when there’s no chance that the recording will be considered evidence.

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