Law Enforcement Body Cameras: The Release & Effect on Litigation

Written By: Christopher Romero |

The California Public Records Act

The public increasingly believes “[t]he body-worn camera provides a technological aide to better serve the community by protecting both police officers and citizens,” and that “an accurate depiction of the contacts between the police and community [provided by the body cameras] improves public safety, provides an objective means for evidence gathering, and serves as a valuable training tool for police officers.” (168 F. Supp. 3d 1265 (S.D. Ca., 2016)).

According to the California Public Records Act, public records are required to be made available to the public to be examined by any person.  Therefore, when law enforcement agencies use body-worn cameras, they may create the expectation in many individuals that the video recordings will be accessible to the public.  However, records of a law enforcement investigation, including potential criminal evidence, are exempt from disclosure.  As such, many California law enforcement agencies consider body-worn camera footage exempt from disclosure, although there is pending legislation that would require law enforcement agencies to disclose the video footage regardless.  For example, California Assembly Bill 748 prevents agencies from withholding recordings that capture matters of public concern – such as incidents depicting an officer’s use of force or the violation of a law or public policy – for more than 120 days.  

To Release or Not to Release

Now, lawmakers struggle with balancing the constitutional rights of police officers and the public’s right to know.  Weighing against the public’s desire to see body camera evidence, body-worn camera footage contains early stages of a law enforcement investigation, and law enforcement agencies have concerns for the privacy rights and safety of its police officers as footage from police-civilian encounters continue to incite public protests, occasionally making law enforcement the target of revenge during times of public criticism of police.

Another issue is when body camera footage is released to the public, what may be passed off as an objective view of an incident could be an incomplete picture of what happened. The risk in a legal setting is public opinion can be molded based on incomplete evidence that is perceived to be objective, and if a subsequent lawsuit is filed, the opinion of potential jurors might be made up before they are presented with all the evidence at trial.  Other types of evidence might sway the opinion of potential jurors, but there is an increased risk with body-camera evidence because of the perception that it is objective evidence.

Although it may seem that body cameras provide an objective account of police-civilian encounters, differences in quality can affect how the video is interpreted by the public and ultimately by potential jurors.  For example, if the body camera does not have a wide-angle lens, the field of view may be limited so that the entire incident is not captured in the video.  Visual detail may be limited if the body camera is incapable of high-zoom quality or does not have high-definition resolution. If the body camera does not have high-sound recording quality, it may not be able to pick up distant audio, possibly creating a misunderstanding of the context of a law enforcement action. Lastly, if the body camera does not have a low-light feature, it might not provide an accurate depiction of nighttime encounters. Although body cameras – in some sense – can put the public at the scene as a witness, the footage often cannot stand alone as a completely objective and convincing picture of what happened during a given police encounter.

Given the perceived objective nature of body-worn camera evidence by the public, and its ability to sway public opinion, even to the point of inciting public protests and revenge against law enforcement, the risk of swaying the opinions of potential jurors prior to the presentation of evidence at trial is high.  Thus, it may be best to continue to allow law enforcement to withhold body-worn camera evidence from the public until after the conclusion of any legal proceedings.