Reflections on the law, the system, and the people who make it (dis)functional.
Tuesday, August 11, 2015
A Lesson for Lawyers and the Public: How to Get, Use, and Win With The Houston Police Department Body Worn Camera Policy
Body Cameras, The Police, and Criminal Cases
University of Cincinnati Police Officer Ray Tensing would have you believe that he shot and killed Samuel DuBose in self-defense after Mr. DuBose reached for something then drove off, dragging Officer Tensing.
Police body camera footage shows that Officer Tensing and the thin-blue-line lied in their offense reports.
Texas Trooper Brian Encina would have you believe that Sandra Bland was arrested for violating a lawful order. Sandra Bland was found dead days later after being charged with assaulting a peace officer, an assault which was conveniently not on camera.
Dashboard camera footage shows that Trooper Encina violated department policy and failed to inform Ms. Bland why she was being arrested.
North Charleston, South Carolina Officer Michael T. Slager would have you believe that he shot Walter L. Scott in self-defense because he feared for his life after Mr. Scott took is Taser.
A bystander’s cell phone footage showed that Officer Slager cowardly shot Mr. Scott eight times in the back as Mr. Scott ran in fear for his life.
WHAT DO THESE INSTANCES HAVE IN COMMON?
Each of these occurrences of police brutality members of our communities share many troubling facts in common. First, a driver committed a minor traffic violation. Second, an officer used unnecessary force. Third, a person who was entitled to due process and equal justice under the law was denied his or her constitutional rights. Fifth, the suspects died in police custody. Sixth, the officer lied on his officer report or arrest affidavit. Seventh, the events were caught on camera and exposed the truth. This paper focuses on using Body Worn Cameras to demonstrate that an officer either lied in his offense report or violated your client’s constitutional right to be free from unreasonable search and seizure.
Police unions are relatively correct in their assertion that officer involved shooting that result in civilian deaths are rare in relation to the total amount of officer-civilian interactions. However, there still remains this staggering number: 690. Six-Hundred-and-Ninety civilians have died at the hands of police officers as of August 4, 2015 according to killedbypolice.com.
Having just returned from my semi-annual Gideon’s Promise training session, I am reminded of an important fact that its founder, Jonathon Rapping stresses. For every Michael Brown, Samuel DuBose, Sandra Bland, Andrew Scott Gaynier, Ezell Ford, and Eric Garner, there are hundreds of thousands of criminally accused people being processed into jails and prisons around the country like sheep at a slaughter house.
In light of the national conversation regarding police brutality and video footage, I want to advise you of my experience involving a lying police officer, an unlawful arrest, body camera footage, and an in-trial dismissal following a successful motion to suppress. If every lawyer takes the time to learn from my recent experience, I am confident we will chip away at number of people going to jail and prison, which is a seldom seen tragedy that is destroying America right before our very eyes.
WHAT THE POLICE SAY:
On July 7, 2014, my client, Jane Doe, was sitting in the driver’s seat of a parked car at a public park. Her friend, John Doe, was sitting in the front passenger seat. Both front doors were wide open. Jane was eating a slice of pizza as John was smoking a blunt. According to the officers, they were doing a standard park check in a high crime and high drug park, when they noticed a small pile of loose tobacco outside John’s door. After noticing the tobacco, according to the police, they engaged in a consensual encounter, but while walking up to the car, they noticed John place ‘something’ in the ashtray, and smelt the strong odor of marijuana as soon as they exited their vehicle. The cops then detain both suspects and conduct a search of the passenger compartment of the vehicle where they find two blunts in plain view within easy reach of Jane. The officers then write that they walked around the trunk and smelt the strong odor of marijuana which gave him reason to open the trunk. An officer opens the trunk and immediately finds almost two ounces of weed in a plastic bag packaged for sale.
WHAT THE BODY WORN CAMERA FOOTAGE SAYS:
One of the officers noted at the very end of his offense report that he was wearing and used a body worn camera. The body camera footage reflects that the officers are driving down a dead-end driveway with two rows of parking spaces late in the evening while the park was full of visitors. The park their marked patrol car directly in front of the car my client was in, effectively boxing the car and its occupants in. The Mobile Data Terminal states that the officers initiated a self-initiated law enforcement activity. The body camera is not turned on until both suspects have been taken out of the car and are cuffed. The cop wearing the body camera then searches the passenger compartment of this darkly tinted car. First, he finds an empty plastic bag on John’s seat. Next, he finds a roach in the passenger side of the ashtray leaning towards John. Then, he finds a roach deep inside the passenger side of the cluttered center console. The officer then searches Jane’s purse, which was in the rear passenger side seat, where he finds nothing linking Jane to the crime. Next, he walks around the rear of the car and does not mention anything about the smell of marijuana coming from the trunk. He then searches Jane’s seat, where he finds nothing linking Jane to the marijuana. Finally, the officer takes the key out of the ignition and opens the trunk. About 10 seconds later he remarks that it smells like weed. Although conveniently not on camera, the officer the opens up a men’s shoe box where he finds a many small plastic bags full of marijuana inside a large plastic bag. Once the officer finds this weed, he says, “Oh fuck yeah!”
The cop then asks Jane whose car it is, she says its John’s. The cop then asks a few questions and realizes that Jane is sober as a gopher. The cop then turns his body camera off. The cop then speaks to the obviously high John, and turns his body camera on. The cop then talks to Jane, and turns his camera off. The cop then talks to John, and turns the camera on. The cop then turns his camera off before transporting Jane and John to jail.
WHAT I LEARNED FROM THE BODY CAMERA FOOTAGE:
First, I learned that the police officers lied about the nature of their encounter. Clearly, based on the video, there was nothing consensual about the encounter as the State argued at the motion to suppress. Under State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008), a police-citizen encounter implicates fourth amendment protections in a totality of circumstances test where the officer makes a show of authority that a reasonable person would not feel free to ignore. In Garcia-Cantu, the officer boxed in the suspect by paring his patrol car about 10 feet away from the suspect’s car on a dead-end street and shining his spotlight on the suspect vehicle. In my case, the cops parked their car about 10 feet in front of the front bumper of the car my client was in, a car that was reversed back up to the curb, in a dead-end parking lot, before both officers exited their vehicle with their hands on their guns, walked to each side of the car and made authoritative orders. Without the body camera footage, it was unlikely that I would have filed a motion to suppress based on what my client told me, and what the offense report said. It was even less likely that I would win the motion to suppress.
Second, I learned that the officers lied in their offense report about two blunts being in plain view and easily within my client’s reach. The blunt in the ashtray was within my clients reach, but it’s arguable whether it was in plain view, considering the officers could not see it before they entered the car. The blunt at the bottom passenger side of the cluttered center console was clearly not in plain view, nor was it easily accessible by my client.
Third, at no point during the video footage could we see any loose tobacco outside John’s door.
Fourth, the office claimed that he smelled the strong odor of marijuana emanating from the trunk, but not once did he note the smell, despite narrating everything else in the video, until 15 seconds after opening the trunk.
Fifth, I learned that the officer turned off his camera essentially every time he spoke to Jane, but turned it on every time he spoke to John.
HOW TO MAKE THE MOST OF BODY WORN CAMERA FOOTAGE:
First and foremost, you need to get the police department’s body worn camera policy. I was the first lawyer in Texas to get the Houston Police Department Body Worn Camera Policy. A policy, even draft policy, creates the rules that officers must follow. Humans rely on rules to establish what is right and wrong. If we can get juries to understand in simple terms that the officer had a few rules to follow that are designed to protect the constitutional rights of members of our community, and that the police violated these rules, then the members of our jury will feel less comfortable with the officer’s actions because the police might just as easily violated their rights.
Getting the body camera policy was not easy, and don’t expect it to be. The first problem I ran into was that the prosecutor did not turn over the body camera footage until out first trial setting. I knew it existed because it was noted on the offense report, but I would suggest requesting body camera footage when you file for 39.14 discovery request at your first appearance.
The next problem I ran into was a Chinese wall. The State not only refused turn over the Houston Police Department Body Worn Camera Policy, but the state also refused to admit the policy existed. The state’s excuses ranged from there is no policy, it’s not a final policy, it’s a draft policy, the policy was not applicable, and you’re not entitled to the policy.
I filed the court’s standard discovery order, which the judge signed. I made oral requests, and I made written requests all to no avail. Finally as the trial was fast approaching, I filed an updated 39.14 Michael Morton Act request for “Any documents or reports related to Houston Police Department’s use of Body Worn Cameras, including, but not limited to, any HPD circular, training material, educational material, draft materials, and final policies.” On the same day, I also filed a Texas Public Information Act Request with the Houston Police Department, and a Subpoena Duces Tecum for the same information.
The prosecutor again ignored my discovery request. When confronted with why she wouldn’t turn it over, she said the policy doesn’t exist. Little did she know, I was holding the policy in my briefcase. The Houston Police Department objected to my TPIA request. Surprise. Surprise. However, the good civilian Custodian of Records at HPD complied with my subpoena. Of course, it took the additional threat that I would subpoena the Chief of Police to testify as to why his department would not turn over the policy to the public, during the public input stage, but hey, you gotta do what you gotta do, and I was prepared to examine him.
WALLAH, THE HOUSTON POLICE DEPARTMENT BODY WORN CAMERA POLICY:
Once you have the body camera policy, you have to know how to use it. You have to know how you are going to get it into evidence. Once you figure that out, you get to know the policy like the back of your hand. The better you know the policy, the more clear, concise, and effective your rule-based question can be. The following is an example of my cross on the body camera policy. The purpose of this cross is to establish why body cameras are used and rules on how they are supposed to be used. Once the officer agrees to each rule, you can expose that he did not follow the rules he agreed to follow.
Policy Rule 1: Houston Police Department is committed to protecting the constitutional rights of all people.
Police Rule 2: Houston Police Department uses Body Cameras to collect the best evidence of every encounter between officers and the public.
Policy Rule 3: Houston Police Department uses Body Cameras to preserve the best evidence of every encounter between officers and the public.
Policy Rule 4: Houston Police Patrol Officers assigned Body Cameras must record all law enforcement activities.
Fact 1: Body Cameras accurately reflect events.
Fact 2: Body Cameras accurately reflect interactions.
Fact 3: Body Cameras accurately reflect evidence.
Fact 4: Body Camera footage is the best evidence of what happened.
Rule 1: Before receiving your Body Camera, you had to learn how to use it.
Rule 2: You went to a two hour course to learn how to use the Body Camera.
Rule 3: You also learned the Body Camera Policy.
Rule 4: You received a copy of the Body Camera Policy.
Rule 5: Before being issued your Body Camera, you had to pass a test to demonstrate you knew how to operate the Body Camera.
Rule 6: Before being issued your Body Camera, you have to pass a test to demonstrate you knew the Body Camera Policy.
Rule 7: You passed your test.
Rule 8: On the date of this arrest, you knew how to operate your Body Camera.
Rule 9: On the date of this arrest, you knew the Body Camera Policy.
Rule 10: The Body Camera Policy lists rules that you must follow when using your Body Camera.
Rule 11: Officers are responsible for the Body Camera.
Rule 12: Officers must check the Body Camera at the beginning of their shift to make sure it is working properly.
Rule 13: Officers must check at the beginning of their shift to make sure the Body Camera has a sufficient charge.
Rule 14: Officers must notify their supervisor any time a recording may be evidentiary.
Rule 15: Officers must document the existence of a Body Camera video in their incident report.
Rule 16: Officers must immediately report any malfunctioning equipment to a supervisor.
There a rules in the policy that state when you must activate your Body Camera.
Operation/Activation Rule 1: If an officer discovers his camera is defective, the officer must immediately notify his supervisor.
Operation/Activation Rule 2: Officers must begin recording with their Body Camera when they arrive on the scene for any call for service.
Operation/Activation Rule 3: Officers must begin recording with their Body Camera when they self-initiate law enforcement activity. (See squad car’s MDT to determine if and when officer began self-initiated law enforcement activity.)
Operation/Activation Rule 4: Officers must begin recording with their Body Camera when they initiate a traffic stop.
Operation/Activation Rule 5: Officers must begin recording with their Body Camera when they initiate a pedestrian stop.
Operation/Activation Rule 6: Officers must begin recording with their Body Camera when they are flagged down to take law enforcement action.
Operation/Activation Rule 7: Officers must begin recording with their Body Camera when they detain a person.
Operation Rule/Activation 8: Officers must begin recording with their Body Camera when they attempt to detain a person.
Operation/Activation Rule 9: Officers must begin recording with their Body Camera when they arrest a person.
Operation/Activation Rule 10: Officers must begin recording with their Body Camera when they when they are likely to arrest a person or take any other law enforcement action.
Operation/Activation Rule 11: Officers must record all searches of people.
Operation/Activation Rule 12: Officers must record all searches of vehicles.
Operation/Activation Rule 13: Officers must record all searches of buildings.
Operation/Activation Rule 14: Officers must record all searches of places.
Operation/Activation Rule 15: Officers must record all pursuits.
Operation/Activation Rule 16: Officers must record all transports of detainees of the opposite sex.
Operation/Activation Rule 17: You may only violate these rules, per the policy, if it is immediately necessary to ensure your safety or the safety of others.
There are rules in the policy that state when you are allowed to turn the body camera off.
Operation/Deactivation Rule 1: Officers must ensure that Body Worn Cameras are recording during the entire potential law enforcement activity.
Operation/Deactivation Rule 2: The Body Camera must record until the incident is over.
Operation/Deactivation Rule 3: An incident is over when all arrests have been made and the arrestees have been transported from the scene.
Operation/Deactivation Rule 4: An incident is over after all witnesses and victims have been interviewed.
Operation/Deactivation Rule 5: An incident is over after the officer has left the scene.
Operation/Deactivation Rule 6: An incident is over after the citizen contact is complete.
Operation/Deactivation Rule 7: An incident is over, if an arrestee is of the opposite gender, once the arrestee has arrived at jail.
Operation/Deactivation Rule 8: If an officer is flagged down by a citizen, the officer must record the interaction, but may stop recording only if the citizen wishes to share confidential information.
Operation/Deactivation Rule 9: Officers may stop recording when conferring with other personnel regarding the handling of a situation.
Operation/Deactivation Rule 10: Officers may stop recording at the scenes of extended incidents.
Operation/Deactivation Rule 11: Officers may stop recording when no law enforcement action is occurring.
Operation/Deactivation Rule 12: Any time and officer stop recording, he must audibly note the reason for termination.
Operation/Deactivation Rule 13: Any time an officer stops recording for any reason, the officer must turn the camera back on immediately when the circumstance that caused the officer to stop recording has passed.
Recording/Documentation Rule 1: The recording of a criminal incident shall be treated as evidence.
Recording/Documentation Rule 2: Officers must record a chain of evidence/custody for all evidence.
Recording/Documentation Rule 3: Officers must not alter, tamper, or destroy evidence. (Break into three questions).
Recording/Documentation Rule 4: Officers must note in their offense report if he recorded an incident.
Recording/Documentation Rule 5: Officers must note on all relevant forms involving the incident that there is body camera footage.
Recording/Documentation Rule 6: All recordings in criminal cases must be retained for the period set by the statute of limitations.
The aforementioned questions serve several purposes. First, they establish that the officer was trained in how to use the Body Camera. Second, they establish that the officer was trained in the Body Camera Policy, and knew how to follow the policy. Third, they establish the officer knew the rules on the date of your client’s arrest. Fourth, they establish that the officer knew when to turn on the camera. Fourth, they establish that the officer knew when to turn the camera off. Fifth, they establish that the officer knew how upload and store the Body Camera video. Fifth, they set you up for a spoliation instruction. Sixth, most importantly, you are committing the officer to his testimony.
The officer must agree to each of these rules. If the officer does not agree to each of these rules, you can impeach him and at least try to get the actual policy into evidence. After getting the officer to agree to each of these rules, apply the facts of your case to the rules he agreed that he was supposed to follow. There is a good chance that the officer did not follow his own rules, which is good for you. First, hopefully you asked the jurors in some manner during voir dire if they expect officers to follow their own rules, policy, and procedure. Second, you can use the testimony to support your theme of a rush to judgment, bad police work, your client’s rights were violated, or any other. Third, these questions will help you seek to get a spoliation instruction.
In my case, the officer broke several rules. The officer began recording later than he was supposed to. He stopped recording sooner than he was supposed to. He never audibly noted why he turned off the camera. He only recorded his interaction with John, but not Jane. He did not record the transportation of Jane to jail. The video came in three disks. It was clear that the officer wanted John to rat on Jane once he realized Jane was sober and John was not. It was clear that the officer chose not to record the entire law enforcement activity and that he therefore tampered with evidence.
Ultimately, the Body Camera video helped me win my motion to suppress by establishing that my client was sober and there were no affirmative links. The judge disagreed that my client was detained, but body camera video enabled me to lay an accurate record for appeal. I would have loved to have heard what the jurors thought about the way in which the body camera was used, but I am more than happy to get a victory before that point.
We, as lawyers, need to use Body Camera footage to our advantage in every case possible. More often than not, body camera footage isn’t going to show that an officer killed someone. But in the same token, body camera footage will show that a cop lied in his offense report or that he violated the defendant’s Fourth Amendment rights to be free from unreasonable searches and seizures, or that he treated your client like trash. Take the time to carefully review your body camera footage. This technology will help us identify the bad cops, get more dismissals, win more motions to suppress, and hear more not guilty verdicts.