Guest Opinion | Police Body Cameras: Discriminating Against Minorities and the Poor

Hearings before the Pasadena Public Safety Committee on Tuesday, February 16 and Monday, March 21 will deal with the policy for disclosing forthcoming body-camera video, which includes questions such as the following: Should police officers who kill civilians be treated like other witnesses who don’t get to see video of the incident before being interviewed? Or should they be advantaged by knowing what’s in the video of the critical incident before committing themselves to a story while suspects and witnesses unfavorable to the police are disadvantaged? Does it matter?

Pasadena has some not-very-pretty history with this subject arising from the Pasadena Police Department shooting and killing two African Americans – LeRoy Barnes in 2009 and Kendrec McDade in 2012. That history on view-first/interview-after is worth reviewing.

The OIR Group Recommends interview-first/view-after, the Pasadena PD does the opposite

The Office of Independent Review (“OIR”) Group thinks the issue is important. Over the past 7 years it has gone back and forth with the Pasadena Police Department recommending that its officers should be just like other witnesses who, pursuant to standard police investigative practices, don’t get to review use of force videos before being interviewed. In 2009 it suggested the PD should interview officers before they see video or hear audio about their shootings, but 5 months later the Pasadena PD made a secret agreement with its police unions to do just the opposite. In 2013, the OIR Group again recommended an equal-treatment for officers policy. But its recommendation was kept secret for nearly 2 years; when the PD feared their recommendation would become public, the PD implemented an official policy to do just the opposite. When the OIR Group recommendation was finally made public in 2015 because of our successful lawsuit, Pasadena Police Chief Phillip Sanchez rejected the recommendation, disclosed to the public for the 1st time the PD’s secret agreement with its unions, and began publicly trashing the OIR Group.

The OIR Group rationale for its video disclosure recommendations

The car cameras of the officers who shot Kendrec McDade were not turned on, so there was no video from their car to view. But they were shown video from the car cameras of other officers and audio of police calls before they were interviewed for the criminal investigation. The OIR Group criticized that deviation from best investigation practice based on the following rationale:

“Viewing audio tapes or video footage before being interviewed is likely to distort pure recall either consciously or subconsciously. Studies by experts in witness memory have repeatedly established that subjecting witnesses to external evidence can cause them to supplant or modify what they actually recall with what they see from the video evidence. As a result, allowing personnel to view a video or listen to audio prior to interviewing the involved officers eliminates the ability to obtain pure unvarnished account of the [incident] from them. A view and listen first policy also can create the impression that the Department is attempting to influence the officers’ accounts so that they can be tailored to the audio and video evidence that has already been gathered. Such an impression will reduce confidence by some in the Department’s ability to objectively investigate deadly force incidents. Finally, a view and listen first policy is not consistent with current investigative practices PPD employs on a daily basis. For example, bank employee victims are not show surveillance videos of a robbery prior to being interviewed.”

The Pasadena PD’s rejection of interview-first/view-video-after contrasts with its laudable reform stopping a comparable practice

The bad investigative practice of asking leading questions suffers from essentially the same vice as the video or audio policy of view-first/interview-after – i.e., the questions’ suggestiveness tends to lead the witness to conform his testimony to the factual presuppositions of leading questions and consequently contaminates the witnesses’ pure recall. In the Barnes shooting, a PD interviewer aggressively questioned the car-driver witness with leading questions that presupposed she had seen Barnes with a gun; the OIR Group concluded that made her testimony worthless as evidence. One of the few bright spots for the Pasadena PD in the OIR Group Report on the McDade shooting was its praise for the PD investigators using non-leading questions throughout their interviews. That progress is commendable, but it stands in contrast to the PD’s toleration of the even greater contamination of pure recall by allowing officers to view-first/interview-after; at a minimum, viewing-first unconsciously causes the officer’s recollection to be altered, and, more seriously, it the officer the opportunity if he is dishonest to consciously tailor his testimony to the video.

“The Serving the truth” rationale obscures that view-first/interview-after is partisanly discriminatory

An argument we have heard is that the view-first/interview-after policy “serves the truth” by allowing the officer to fill in gaps in his recollection. If that were the case and “the truth” were what was being sought, then all witnesses should be shown video or hear audio before being interviewed – but that has never been considered good police practice for anyone other than police officers or persons police consider favorable witnesses. The partisan reality is that discriminating in favor of officers and friendly witnesses and against suspects and other witnesses concerning when they view video is intended to advantage the police. By pre-interview viewing, officers can figure out what story will be consistent with the visual evidence. By denying such viewing to suspects or witnesses perceived as unfriendly, their testimony can more easily be attacked in litigation because one side will be saddled with the normal variances between perception and recollection vs. reality. This doesn’t necessarily “serve the truth.” As the OIR Group observed in its Barnes report on the discrepancies between officer recollection in that case even after they had seen the videos, such discrepancies are normal: “The discrepancies between the involved officers’ recall and the video and physical evidence does not prove dissembling on the part of the officers; the more likely explanation is that the stress of the situation caused the officers’ perceptions of the event to not always match its reality, a not uncommon situation in officer-involved shooting incidents.” The same generous observation can be made about suspects and non-police witnesses, but they don’t get the chance that police get to iron out contradictions between their recollections and the visual evidence that the police do. We know what every trial lawyer knows – that difference makes a difference when you go to trial.

The advantage/disadvantage calculus on video-viewing policy is just one of the many ways that the constitutional presumption of innocence is undercut by partisan advantages granted to the police. Perhaps Pasadena will have the good sense to adopt a policy that treats all witnesses equally rather than continuing this discrimination that disproportionately affects the minority and poor who are predominantly affected by it because of the ravages of racism and inequality and the over-policing of their communities.

Skip Hickambottom and Dale Gronemeier are local civil rights attorneys who successfully litigated the public records act case requiring public disclosure of the OIR Group Report on the McDade shooting.