On August 12, 2013, a Federal District Court Judge Shira Scheindlin released her 195 page opinion in the highly publicized case of Floyd, et al. v. City of New York. Judge Scheindlin examined the law enforcement techniques of the New York City Police Department in several high crime areas. The case has been dubbed the “stop and frisk case” by the media.
The plaintiffs believed the NYPD’s practice unlawfully targeted racial minorities. Judge Scheindlin agreed writing in her opinion, “In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting ‘the right people’ is racially discriminatory.” I highly recommend that every LEO read this opinion and follow the appeal to the United States Second Circuit Court of Appeals. The case may very well end up in the United States Supreme Court.
Floyd, et al. v. City of New York
As part of her opinion, Judge Scheindlin recommended that LEOs in certain areas of New York City wear cameras on their bodies. While this was the most widely publicized portion of this opinion, she also ordered policy and procedure reviews and oversight.
She wrote, “To address the violations that I have found, I shall order various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD’s conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD’s compliance with the ordered remedies.” Her rationale for recommending the cameras is interesting and forms the basis for this article.
Judge Scheindlin wrote about the inherent challenge facing every court evaluating the propriety of a police encounter of any type. She wrote,
“In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses. This task is not easy, as every witness has an interest in the outcome of the case, which may consciously or unconsciously affect the veracity of his or her testimony. Nonetheless, a judge is tasked with making decisions and I judged the evidence of each stop to the best of my ability. I am also aware that a judge deciding whether a stop is constitutional, with the time to reflect and consider all of the evidence, is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves or others. I respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.”
While I will patiently await the decision of the Federal Court of Appeals, many are now using this opinion to advocate the mandatory use of body-worn cameras by every LEO in the United States. As an advocate for law enforcement and a person who has worn the uniform, I find the mandatory use of cameras to be a dangerous precedent and a very slippery slope to a complete invasion of the privacy of LEOs throughout the United States.
The Right to Privacy and the United States Constitution
Former appellate Judge Robert Bork famously criticized the United States Supreme Court’s expansion of the right of privacy stating that no such right is expressly guaranteed in the United States Constitution. While he was technically correct, the right to privacy was clearly explained in the case of Griswold v. Connecticut found at 381 U.S. 479 (1965).
Griswold involved a law that prohibited the use of contraceptives and was in any analysis, quite bizarre. However, in striking down the law, the United States Supreme Court found that while no one provision of the United States Constitution guaranteed the right to privacy, such a right undeniably exists in the United States. The Court’s opinion by Justice Douglas is important to our analysis.
“Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’”
The right to privacy is properly embedded in American law and has led to many other key opinions. So why is it perfectly appropriately to mandate that LEOs forfeit their privacy to carry out an oath to protect and serve?
LEOs and the Right to Privacy
My response to a pointed question from a criminal defense attorney illustrates my concern about the mandatory use of body cameras by LEOs. He objected to the fact that I turned off my microphone during a traffic stop when another LEO approached me. While the video was still running, there was no audio as I turned to my beat partner and spoke with him.
When asked why I turned off the microphone, I replied that I was having a private conversation unrelated to the traffic stop and it was none of his business what we discussed. While the conversation was private and probably related to where we planned to eat lunch, my fear is that the mandatory use of body cameras will destroy the little privacy that remains for LEOs.
LEOs already face privacy intrusions into their lives. Agencies are demanding access to Facebook accounts and private cellphone records. LEOs are fired for their off-duty conduct when administrators believe, often without review or appeal, that the conduct is inappropriate. The mandatory use of body cameras takes these intrusions even further. Will the LEO be able to turn off the camera when sharing a meal with their friends on the job? What about the times when a LEO is able to run into a family member while working? What about discipline and corrective action? Should a LEO be required to record every statement made to them during the course of a shift? Will the use of cameras be required any time the LEO is in uniform such as during court appearances and ceremonies?
Some have said that LEOs are no different from any other citizen and the proliferation of surveillance cameras in our society have virtually guaranteed that we are all being filmed in nearly every public place. However, body worn cameras are different. They are attached to the LEO. They go everywhere with the LEO. In an age of hacking, savvy people cover the cameras built into their laptops to prevent unauthorized access into their private lives and parents are experiencing hacking into baby monitors. Is it beyond expectation that the body cameras attached to LEOs would be hacked? Will LEOs be left without any reasonable expectation of privacy during a shift including restroom breaks?
Ironically, New York courts examined the intrusion of cameras into the lives of people in 1973. The United States Court of Appeals for the Second Circuit, the same court that will review the current opinion in Floyd, et al. v. City of New York, decided the case of Galella v. Onassis which can be found at 486 F.2nd 986. The Court examined the activities of a photographer, Ronald Galella, who had “insinuated himself into the very fabric of [Jacqueline Kennedy] Onassis’ life . . .” Mr. Galella was taking photographs of the former first lady and her children at times entering private property, making physical contact and obstructing their physical paths. The court examined the balance of observation of activities conducted in public and the recording of those activities. The opinion is relevant to our discussion.
The appellate court was faced with balancing the right to privacy of Ms. Onassis and her children with the right of the press or others to photograph their activities. The court upheld an injunction and Galella was “enjoined from (1) keeping the defendant and her children under surveillance or following any of them; (2) approaching within 100 yards of the home of defendant or her children, or within 100 yards of either child’s school or within 75 yards of either child or 50 yards of [Ms. Onassis].” The court’s analysis is important in this current discussion and will likely surface in the Floyd, et al. v. City of New York case.
Of course legitimate countervailing social needs may warrant some intrusion despite an individual’s reasonable expectation of privacy and freedom from harassment. However the interference allowed may be no greater than that necessary to protect the overriding public interest. Mrs. Onassis was properly found to be a public figure and thus subject to news coverage.
Any further restriction on Galella’s taking and selling pictures of defendant for news coverage is, however, improper and unwarranted by the evidence.
In essence, the court found that because Ms. Onassis was a public figure, and arguably LEOs are public figures as well, Mr. Galella was entitled to observe and photograph her movements and activities. Further, the restrictions outlined in the opinion, measured in terms of yards, were the most any court could restrict Mr. Galella.
Body cameras are attached to the LEO and will therefore place surveillance within a few feet of other LEOs and the public. The court will likely wrestle with the question of whether such “intrusion” is “necessary to protect the overriding public interest.” The decision in Galella was focused on the ability of every individual to have a place free from intrusion by anyone. LEOs forced to wear body cameras will be denied that right. You can count on many who will argue that the loss of a LEO’s privacy is “necessary to protect the overriding public interest.”
Aside from privacy, the use of cameras to review every action of a LEO is a flawed effort from the start. Will citizens passing on information regarding crimes be willing to speak if their words and images are recorded for public consumption? Further, anyone who has worked the street knows that microphones and cameras fail, they get knocked loose during foot chases and physical confrontations, and they rarely catch the true perspective of the LEO.
This especially concerns me when courts will review the use of deadly force. The reasonable, subjective belief of a LEO cannot be second-guessed by a camera that never blinks, has a better ability to “see” in low light conditions than the human eye, and does not suffer from the tunnel vision experienced by LEOs during periods of high stress. Will courts begin to expect camera footage of every encounter? Will the lack of footage due to equipment failure or a bad camera angle cause courts to find a lack of support for an arrest?
While the camera may record the LEO’s interaction with a citizen, it will never provide the true perspective of a trained LEO. As Chief Justice Warren stated in Terry v. Ohio, “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”
LEOs take an oath to protect and defend the Constitution. The law provides for civil and criminal penalties for LEOs who violate that oath and LEOs face administrative sanctions as well. The wearing of body cameras should not be mandatory. Such actions will no doubt be supported by claims of increasing the public trust in LEOs. However, if we do not trust those who protect us, no technology will provide a remedy.
Lance LoRusso is an attorney, former LEO and founder of LoRusso Law Firm, PC in Marietta, Georgia. He is the General Counsel for the Georgia Fraternal Order of Police and author of a blog, www.bluelinelawyer.com. He speaks at many conferences for law enforcement on use of force, responses to critical incident, and other topics of interest to law enforcement. His book on critical incidents entitled, “When Cops Kill: The Aftermath of a Critical Incident” is available through www.whencopskill.com. Profits from this book will support law enforcement charities such as www.huntingforheroes.org. You can follow him on Facebook, LinkedIn, and Twitter (bluelinelawyer or lancelorusso).