Op-Ed Piece: "SFPD Body Cameras – Devils In The Details"

SFPD Body Cameras – Devils In The Details

Public awareness of routine police violence, a serious problem in many parts of the world, has perhaps never been higher. The problem is not new of course, but thanks to the widespread use of video recording devices it has become much more visible.

In the United States, the deaths at police hands of victims like Freddie Gray, Tamir Rice, Eric Garner, Walter Scott, and many others have become national news and led to uprisings and clashes in places like Baltimore and Ferguson. Locally, victims like Alex Nieto, Idriss Stelley, Amilcar Perez-Lopez, Kenneth Harding, and others have been shot and killed by members of the SFPD under often dubious circumstances.
This epidemic of police violence isn’t the fault of police officers alone. Officers are expected to enforce too many bad laws. Government programs like the failed “War on Drugs”, asset forfeiture – having your cash or property seized by police, often without ever being charged with a crime, and the burden falling on you to get it back – and statutes criminalizing victimless “crimes” like prostitution, gaming, carrying a weapon for self-defense, unlicensed economic activity (e.g. Eric Garner selling loose cigarettes), or just sitting on the sidewalk, are unjust and should have never been on the books.

Nevertheless, police officers have discretion in whether to issue a citation, make an arrest, or stop someone in the first place. When an officer chooses to take action to enforce an unjust law or obey an unconstitutional order, or uses excessive force in carrying out legitimate objectives, s/he becomes morally responsible for that choice. When Nazis at the Nuremberg trials protested that they were just following orders, this did not absolve them of guilt for the crimes they committed.

Until recently, law enforcers who commit serious crimes have rarely been charged, let alone jailed, for their offenses. In fact, officers involved in suspected wrongful shooting or excessive use of force incidents are often given paid vacations (when you hear the term “administrative leave”, that’s what it means).

To be clear, most of the egregious police shootings and brutality incidents we hear about are committed by a small percentage of officers. Too often though, their colleagues fail to report and speak out against these abuses, or even cover for the bad cops, making themselves complicit and giving the police as a whole a bad reputation.

With growing demands for reform, hopefully this culture is beginning to change. But the public also wants officers to commit fewer abuses in the first place. Toward this end, one reform that’s received much attention is the idea of requiring police officers to wear body cameras to videotape for the record their interactions with members of the public.
In a number of cities, police departments have been ordered to start using such cameras, and a similar effort is underway here in San Francisco. This past summer a working group held several meetings and produced a proposed body camera policy, which has been presented to the Police Commission.

Unfortunately, this draft policy as written has some serious problems. Advocates of civil and human rights have pointed out at subsequent Police Commission hearings in September, October, and November that:

• The policy contains no specified consequences for police officers who fail to turn their cameras on when they are supposed to, or otherwise violate the policy

• The policy would allow officers to legally turn off their cameras during an incident if told to do so by a superior officer – and does not say under what specific conditions a superior can legally give such an order

• The policy would give the SFPD control over access to recorded video footage, instead of requiring it to be turned over to an independent agency like the Police Commission
• The policy contains no public transparency provisions to require recordings of suspected use of excessive force incidents filmed in public places (i.e. not inside private homes without the consent of residents) to be made available to members of the press and the public

The points above are just the tip of the iceberg – there is no space here for a discussion of all the document's troubling details.

How did this happen? Given the composition and process of the working group, which started with a document prepared by SFPD staff and met with little publicity and few if any non-members present, it is little surprise. Participants included several representatives of the Police Officers Association and other law enforcement groups, but only one member of the public and apparently only one outspoken defender of civil liberties (Rebecca Young of the Public Defender’s Office).

For members of the SFPD to be in the working group at all was a conflict of interest. Persons drafting policy should listen to input from police officers along with everyone else, but for the employees whom a policy is designed to hold accountable to be directly involved in writing its rules themselves is improper and should not be allowed

The police chief, Greg Suhr, is also allowed to sit on the panel with members of the Police Commission during commission meetings, and to remain with commissioners when members of the public are asked to leave the room for a closed session. During one recent meeting, the head of the Police Commission even accidentally addressed the chief as “Commissioner Suhr” before correcting herself.

This kind of cozy arrangement in which the boundaries between the regulators and the regulated are blurred, and police exercising life-and-death powers are effectively allowed to police themselves, is one reason why misuse of force has reached crisis levels – truly independent oversight is lacking.

San Francisco residents need to make sure this pattern does not continue when it comes to the SFPD’s use of body cameras. If it does, then the plan to spend hundreds of thousands of taxpayer dollars to outfit officers with these cameras (not to mention equipment maintenance and record-keeping costs) will be a waste of money which will solve nothing.

The biggest point of controversy concerning the draft policy so far has been its loose rules regarding officers viewing footage captured on their cameras. The police union representatives who’ve spoken at Commission hearings all want officers to be free to look at these recordings prior to writing police reports about incidents that have been filmed. But few if any of the dozens of members of the public who’ve testified, not to mention representatives of civil rights groups present including the Bay Area Civil Liberties Coalition, the Libertarian Party, the Electronic Frontier Foundation, and the American Civil Liberties Union among others who’ve given testimony at the hearings, agree with them.

The draft policy (latest version online at http://sf-police.org/modules/showdocument.aspx?documentid=27671 ) would let SFPD members view footage on their cameras, “except when the member is the subject of the investigation” (criminal or internal) in “an officer-involved shooting or in-custody death” that was “captured by the body worn camera”.

So an officer who behaves improperly, and wants to think up a story after the fact that comports with the evidence in order to justify his behavior, can look at the video to aid him in doing so as long as he has not been declared “the subject of the investigation”. And even if he eventually does become "the subject of the investigation", he can still review the video before he is questioned about the incident, “subject to the discretion of the Chief of Police and/or the lead administrative or criminal investigator on scene.” Again this is the police policing themselves, with no objective standards.

Police union reps insist they just want to ensure that officer reports and testimony are as accurate as possible. They say those who want officers to write their reports before reviewing video footage of an incident are just trying to “play ‘gotcha’”. But if other people involved in an incident – arrestees, victims, and civilian witnesses – are not allowed to watch body camera videos prior to giving statements, then officers must be held to the same standard.

Considering how rarely police officers face serious criminal charges, someone who’s been arrested usually has a lot more to worry about in terms of “gotcha” moments than an officer does. As Commissioner Petra DeJesus and others have noted, an officer can always write a supplemental report if, upon viewing a video, s/he sees that it shows something different than what s/he wrote in an initial report. But having initial reports written based on an officer’s own recollections, not just what video shows, is critical in terms of preserving a record of the officer’s state of mind regarding an incident prior to being influenced by video evidence.

The Police Commission is meeting on Wednesday, Dec. 2, at 5:30pm in City Hall, room 400 and has on its agenda, “Discussion and action to approve the Body Worn Camera Draft Policy” (see http://sf-police.org/index.aspx?page=4976).

Members of the public are urged to show up and speak out for a strong body camera policy that holds police officers accountable with proper oversight, and ensures transparency while protecting civil liberties! If you can’t be there in person, you can email your concerns to sfpd.commission@....

# # #

Starchild is outreach director of the Libertarian Party of San Francisco and a past candidate for the Board of Supervisors.

I don't have any problem with this op-ed piece, but for one sentence:

“When an officer chooses to take action to enforce an unjust law or obey an unconstitutional order or uses excessive force in carrying out legitimate objectives, s/he becomes morally responsible for that choice”

This is certainly surprising to hear from someone who has a kneejerk hatred of the police. Apparently you think that every single officer has a moral duty to decide whether laws are unjust or unconstitutional and, if not, to refuse to enforce such law.

So, if I am a police officer and I believe that issuing Miranda warnings are unjust and unconstitutional because it may allow a criminal to get off, do I have a moral duty to ignore that law? If a police officer arrives on the scene to confront someone who is brandishing what looks like a gun, but I can’t be sure so I do not take him out and then he shoots and kills someone, am I morally guilty of murder for failure to act.

You seem to be assuming that the police officer would make the same moral judgment that you would, which is probably not the case.

I believe the police should enforce the laws as they are and leave decisions about whether they are unjust or unconstitutional or both to courts and juries.

Les Mangus

Les,

  My responses interspersed below...

This is certainly surprising to hear from someone who has a kneejerk hatred of the police.

  Why do you assume I have a "kneejerk hatred of the police"? I know I've never said any such thing. Would it be proper to likewise assume from your apparent disinterest in seeing officers who commit moral injustices held accountable, that you have a "kneejerk hatred of their victims"?

"I am a police officer and I believe that issuing Miranda warnings are unjust and unconstitutional because it may allow a criminal to get off..."

  That would be an indefensible position. There is nothing in the Constitution that would render a due process right unconstitutional because it might allow a criminal to get off. If you sincerely believe it nevertheless, probably you should be removed from the force for mental unfitness.

You seem to be assuming that the police officer would make the same moral judgment that you would, which is probably not the case.

  I'm not assuming police officers would make the same moral judgment that I would. People have a right to hold wrongheaded views. It's not their moral judgments that are objectionable from a libertarian standpoint, it's their actions, in the form of human and civil rights violations.

If a police officer arrives on the scene to confront someone who is brandishing what looks like a gun, but I can’t be sure so I do not take him out and then he shoots and kills someone, am I morally guilty of murder for failure to act.

  If it turns out the person in your example was "brandishing" a cellphone, not a gun, and the officer who arrives on the scene shoots and kills them, no, it's not your fault that you didn't kill the officer before he could commit murder. How could you have known the officer was actually going to shoot? And even if you did know, I think the worst you are guilty of if you did nothing to try to stop it is negligence, not murder. The person who pulls the trigger, or orders it pulled, is guilty of murder, not the person who doesn't intervene to stop it.

I believe the police should enforce the laws as they are and leave decisions about whether they are unjust or unconstitutional or both to courts and juries.

  Some laws, or all laws? Do you think officers should write a ticket every single time they see someone jaywalking, or pull over every single car they see that fails to come to a complete stop at a stopsign or goes a mile over the speed limit? Do you think the North Korean police should enforce the North Korean regime's laws? Or do you think, given all the unjust and difficult-if-not-impossible-to-universally-enforce laws on the books, that they should use some discretion? "First, do no harm." That's what I think.

  I'm glad the rest of the piece met your approval.

Love & Liberty,
                               ((( starchild )))

“I know I’ve never said any such thing”

You don't have to say it. The tone of your comments make it abundantly clear.

“Apparent disinterest in seeing officers who commit moral injustices”

???What are you talking about???

I am not disinterested in seeing officers who abuse their office punished, but I am inclined to give them the benefit of the doubt in ambiguous cases. I was objecting to the broad generality of your statements.

“There is nothing in the constitution…….”

Perhaps not in the federal constitution as the framers did not envision the federal government getting involved in police matters. But state constitutions do provide for a police force whose duty it is to protect citizens from violence initiated by other citizens. Police officers have to obey both the federal constitution and the state constitution as well as local laws.

“If it turns out he was brandishing a cell phone…….”

Circumstances matter.

a cop arriving on the scene may have only seconds to decide if he is going to use lethal force. A cop who hesitates could be dead.

there was a news items some time ago that some company was selling a cell phone that looked like a gun. The police said this was a very very very bad idea. Someone will be likely to lose their life because the police will mistake this for a real gun.

hindsight is better than foresight. People and cops have to be judged on the basis of what they knew at the time they made the decision, NOT on what the facts “turn out" to be.

“Some laws or all laws”

GENERALLY cops should enforce the laws as the laws are, NOT as the cops think the laws should be.

“Do you think the North Korean police should enforce the laws of the North Korean regime?”

I think a North Korean should try to get out of North Korea since not only are the laws bad, but the regime itself is bad. There is a difference between saying that a law or some laws are bad and saying that the regime itself is bad.

Les

“I know I’ve never said any such thing”
You don't have to say it. The tone of your comments make it abundantly clear.

Les,

  Please don't confuse my strident rhetoric, which I think is entirely justified by the circumstances*, for hate.

*Case in point: At the Police Commission meeting last night, Chief Greg Suhr left early, and a deputy police chief was sitting in for him on the dais with the commissioners. When the Commission president asked about this, the deputy chief said that the chief had been called away by an officer-involved shooting.

Later last night at home, I learned more about that incident:

http://www.dailykos.com/stories/2015/12/2/1456262/-Man-Executed-by-Police-Firing-Squad-Today-in-San-Francisco

  If you scroll down, the 30-second video at the bottom of the page shows the best view of what happened.

“Apparent disinterest in seeing officers who commit moral injustices”
???What are you talking about???
I am not disinterested in seeing officers who abuse their office punished, but I am inclined to give them the benefit of the doubt in ambiguous cases. I was objecting to the broad generality of your statements.

  I was just making the point that I don't think there's any more reason, from what we've respectively written, to conclude that I hate police officers than to conclude that you don't care about their victims.

  When it comes to giving the benefit of the doubt, I'm going to side with the people, not the government!

“There is nothing in the constitution…….”
Perhaps not in the federal constitution as the framers did not envision the federal government getting involved in police matters. But state constitutions do provide for a police force whose duty it is to protect citizens from violence initiated by other citizens. Police officers have to obey both the federal constitution and the state constitution as well as local laws.

  Well, the Supreme Court and others have ruled that police have no obligation to protect citizens. (See e.g. http://whatreallyhappened.com/WRHARTICLES/courtrulingsonpoliceprotection.php ) So where does that leave the analysis?

“If it turns out he was brandishing a cell phone…….”
Circumstances matter.
  • a cop arriving on the scene may have only seconds to decide if he is going to use lethal force. A cop who hesitates could be dead.
  • there was a news items some time ago that some company was selling a cell phone that looked like a gun. The police said this was a very very very bad idea. Someone will be likely to lose their life because the police will mistake this for a real gun.
  • hindsight is better than foresight. People and cops have to be judged on the basis of what they knew at the time they made the decision, NOT on what the facts “turn out" to be.

  In your example, if you're arriving on the scene and see a police officer brandishing a weapon and, say, shouting orders at someone who's not complying with orders to get on the ground (perhaps with justification, having done nothing wrong), and you see the officer directly point his weapon at the person, well, if the person has a friend or someone else present with a gun, they in turn may have only seconds to decide whether to use lethal force. If they hesitate, their friend could be dead.

  You see, police officers aren't the only ones who have to make split-second, life-or-death decisions. But unlike most civilians, they have (hopefully) been trained to act calmly and professionally in such circumstances, and are being paid with stolen taxpayer dollars to do so. We have every right to expect and demand a higher standard of behavior from them than from an ordinary person in similar circumstances.

“Some laws or all laws”
GENERALLY cops should enforce the laws as the laws are, NOT as the cops think the laws should be.

  "Generally" sounds like a big enough loophole to drive a police armored vehicle through.

“Do you think the North Korean police should enforce the laws of the North Korean regime?”
I think a North Korean should try to get out of North Korea since not only are the laws bad, but the regime itself is bad. There is a difference between saying that a law or some laws are bad and saying that the regime itself is bad.

  Well, the U.S. government (I think there's a good case to be made for calling it a "regime", but I vacillate on that) is bad too. It's a matter of degrees. By all accounts I've seen, it incarcerates a higher percentage of the population under its control than the North Korean regime does. Of course the North Korean regime is worse in many respects. But if your standard is that "police should enforce the laws as (statutorily) written" (does that mean obeying the law takes precedence over orders from superiors?), does that standard hold until the point when the best thing for the officer to do is to flee the country? Or is there some intermediary step?

  My feeling is that before fleeing the country becomes the most reasonable course of action, people (including police officers) should do what they can do resist, undermine, and not cooperate with oppressive laws put on the books by the government or regime.

Love & Liberty,
                                ((( starchild )))

Please allow me to express gratitude for this wonderfully passionate conversation as well as the previous exchange about sex workers. The discuss list has really been active with great work lately. While personally difficult to absorb it all due to the amazing depth of the dialogue, thanks to those who have worked so hard to get their points across in this forum. It’s what it was made for.

Michael Denny
Libertarian Party of San Francisco
www.LPSF.org<http://www.lpsf.org/>

Mike,

  Thank you as always for your support and positive vibes!

Love & Liberty,
                                   ((( starchild )))

You are great at keeping things positive, Mike. Much appreciated.

Marcy

Please allow me to express gratitude for this wonderfully passionate conversation as well as the previous exchange about sex workers. The discuss list has really been active with great work lately. While personally difficult to absorb it all due to the amazing depth of the dialogue, thanks to those who have worked so hard to get their points across in this forum. It’s what it was made for.

Michael Denny

Libertarian Party of San Francisco

www.LPSF.org

Starchild:

1

I don't believe the video proves anything all about whether the police could have known if the suspect was carrying a concealed gun at the time of the shooting. The knowledge that he was carrying only a knife is after-the-fact. Officers do not shoot to maim someone because a injured person can still draw a concealed gun and kill an officer.

2

The courts did not rule that the police do not have an obligation to protect citizens from violence; they ruled that the police cannot be sued for failure to protect a citizen from violence.

What else can the proper role of police be, but to protect citizens from violence???\\

Les

Well, unless a person is nude or wearing next to nothing, they could always be carrying a concealed gun, couldn't they Les? That's very flimsy grounds on which to murder someone.

  Imagine if it was an undercover officer who got shot and killed. Would you justify the killing if the killers noted that the man had a knife, and they didn't know whether or not he had a concealed gun?

  My understanding is that the courts have said the police cannot be sued for failure to protect a civilian from violence precisely *because* they have no obligation to do so. If it's someone's role to do something, but you have no way to compel them to do it or hold them accountable if they fail to do it, then legally they might as well not have the role, for all the guarantee it provides.

Love & Liberty,
                              ((( starchild )))

A flimsy reason??? You might not think so if you were the one who might get shot or killed.

I can readily understand why police officers do not want to be judged by someone who has never been in a comparable situation of confronting an erratic armed (potentially with a gun) individual.

Police have no obligation to protect:

What evidence do you have that your understanding is correct?

I see nothing in the examples you provided that support this understanding.

If the proper function of the police is not to protect, then it beggars my imagination as to what it could be.

Your “understanding” does not pass the test of common sense.

Les

Hi Les….here are a couple of places to start researching this.

http://disinfo.com/2010/03/the-police-arent-legally-obligated-to-protect-you/

http://www.nytimes.com/2005/06/28/politics/justices-rule-police-do-not-have-a-constitutional-duty-to-protect-someone.html?_r=0

http://www.hg.org/article.asp?id=20903

Mike

Too bad we can't ask Mario Woods, who is the one who DID get shot and killed!

http://www.sfweekly.com/thesnitch/2015/12/05/outraged-community-calls-for-sfpd-chiefs-resignation-over-killing-of-mario-woods

  Mario Woods was in the situation of being confronted by a number of armed and arguably erratic individuals who DID have guns. I suspect that he might not want to be judged by someone who has never been in a comparable situation of being a young black man confronted by trigger-happy cops, and only sees them as the good guys.

  Regarding the police not having a legal obligation to protect you (I didn't say it wasn't their proper function), I see that Mike Denny has already posted some links with the info, so I'll refer you to his message on that.

Love & Liberty,
                                ((( starchild )))

1. You might be able to ask Mario Woods, if he had followed police instructions to drop his weapon.

2. Mario Woods was confronted by armed individuals because he had previously stabbed someone with his knife.

3. Were the cops trigger happy? Were you there?

Les

The main trust of all these articles is the police and governments cannot be sued in court, if they fail to protect individual citizens from crime.

A number of the articles make clear that citizens have no CONDTITUTIONAL right to police protection. Criminal law is mostly a matter of municipal and local law, not Federal and state law.

The fact that a government cannot be sued without its consent does not prove that the primary function of the police is to protect citizens from crime.

Les

1. I watched the video. I didn't hear any instructions to drop his weapon. That's not saying for sure there weren't any, but I didn't hear them. It's kind of a red herring though. Even if he was holding a knife and deliberately refused to drop it, that doesn't justify the shooting. As one commenter (not me) at the link below wrote, "Why are SF cops such cowards? Ten cops can't disarm a guy with a knife?"

2. "...he had previously stabbed someone with his knife" -- To quote you below, "Were you there?"

3. As I said, I watched the video. I did not see Woods make any aggressive move toward the police surrounding him. Couldn't even see that he was holding a knife, although it's possible he was. You can hear one officer open fire, and then a bunch of others join in, again for no good reason (as far as I could see, Woods did not respond aggressively to being shot the first time). I'd call it trigger happy, yes.

Love & Liberty,
                                ((( starchild )))

Les….don’t want to get in the middle of your conversation with Starchild….and I surely don’t have any expectation of changing your opinion.

But if an entity has no responsibility or liability for performing or not performing a function for which they are paid, what are they worth? Better for each individual to take that responsibility for themselves or organize with others prepared to step up and take responsibility and for the government to encourage them to do so. For the government to take a position of lessening an individual’s ability to protect themselves in the form of gun control and suggesting the reason is that protection is the proper role of the police is probably criminal and certainly irresponsible. It seems you are vigorously defending the indefensible.

As far someone surrounded by armed cops with weapons drawn and pointed getting killed for not following orders goes…again, it seems insensitive and indefensible. You are free to take that position and live with it. But personally I couldn’t live with myself.

Mike

Mike:

Thank you for your research and comments.

I will give it some more thought.

You were able to express a contrary view without resorting to personal invective (a police state libertarian).

This is essential in carrying on a rational debate.

Good people don't always agree.

This whole debate got started because I had an issue with ONE sentence of a rather lengthy post from Starchild.

In it he said that “police officers who enforce unjust or unconstitutional laws are morally culpable”.

I said I thought this begged the question of WHO is going to make that determination.

I didn't hear anyone say that this is a perfectly legitimate issue.

Les

Hi Les and All,

Thank you Les, for bringing the discussion back to its origins. The original question of police officers enforcing unjust or unconstitutional laws came up at yesterday's terrific presentation at Free Exchange by former San Francisco Board of Supervisors Carol Ruth Silver.

Carol spoke about her experience as a Freedom Rider in the 1960's (read all about it in her new book "Freedom Rider Diary: Smuggled Notes from Parchman Prison"). During the discussion part of the presentation, she asked whether the law-enforcement personnel who upheld the South's segregation laws were perhaps as deeply committed to their cause as were the Freedom Riders. She extended that same question to Mandela's actions during his fight to end apartheid, as well as Isis' current actions to rid the Middle East of Western influence (and whatever else they have in mind). Although I did not bring the issue during last night's discussion, I did think about the current back and forth on this list. The horrible thought did occur to me whether we might also extend Carol's analogy to police shootings.

In other words, if we are to accept personal judgment as to what is "right" or "wrong" above what a particular society has established through laws as to what needs to be done, then things can become pretty muddled. The hackneyed Nazi regime comparisons usually trotted out in discussions such as this, leave out the questions and only provide a pat response that is not particularly useful.

Interestingly, after the Freedom Riders cleared the path for desegregation in the South, the attorneys, economists, and social workers took over, fighting now within the system of laws. Carol became one of these attorneys herself.

What happens afterwards is subject for another day....

Marcy

Fortunately, I don't think those who are part of establishment power structures are as deeply committed, Marcy. Look at who is being paid for their work, and who is doing it strictly because they believe in the cause. Some supporters of Daesh*, on the other hand, are unfortunately very deeply committed. Suicide bombers and people who go on death missions may be ignorant, misguided, bloodthirsty, etc., but cowardly they are not!

  Getting back to Les's question as expanded on by Marcy, this isn't about whether we should accept personal judgement or society's judgment. It is about right vs. wrong. When "society's judgment" (actually the laws and rules created largely by those who hold power) is wrong, then individuals should oppose it. When it is right, they should uphold it.

  It isn't so much who makes the determination of whether a law is just or being justly enforced that matters, but rather how that determination is made. To that question, I think the answer should be, "Apply libertarian principles!"

Love & Liberty,
                                 ((( starchild )))

*See https://www.bostonglobe.com/opinion/2014/10/09/words-matter-isis-war-use-daesh/V85GYEuasEEJgrUun0dMUP/story.html for why it is better to call the group in question "Daesh" rather than "ISIS" or "Islamic State".

P.S. - I do encourage people to keep it civil and not resort to personal invective. That's why I stopped responding to Mitch in the other thread about sex work -- the tone was getting too personal and nasty.