As San Francisco's Police Commission moves toward adopting a body-camera policy by early December, there's growing concern among city residents, legal scholars and attorneys that allowing officers to view body-camera videos of incidents in which they are potential criminal suspects exposes a double standard in investigations involving police.
The proposed practice could also conflict with a 26-year-old Supreme Court precedent on how to determine when a use of force is lawful.
And if police commissioners set to discuss the policy again Wednesday land the other way -- and don't allow officers involved in shootings to review footage before being interviewed -- police say it will set them up to be trapped in "gotcha" statements that don't exactly match what's on the video. The San Francisco Police Officers Association, the union representing rank-and-file members of the department, says that would end all voluntary cooperation with homicide investigations following a shooting or in-custody death.
"This is one of the biggest issues on a national level," UC Hastings College of the Law Professor Rory Little said in an interview from Washington, D.C., where he was attending a conference on the legal issues surrounding police body cameras.
"People are struggling with this all over the country," Little said. "San Francisco, as is often the case, is both a leader in thinking in this area and representative of the national-level controversy."
However, San Francisco is not, by a long shot, the first Bay Area jurisdiction to wrestle with the nuances of body-camera policy. The Police Department has floundered for over four years in its attempts to launch an eventually abandoned pilot program. All Oakland field officers have worn body cameras since 2013, and that department's policy does not allow officers involved in shootings to view body-camera footage before they're interviewed. Officers are required to watch the footage at the end of the interview.
"The member will be given the opportunity to provide additional information to supplement his/her statement and may be asked additional questions by the investigators," Oakland's policy says.
In San Francisco, this issue in the department's draft policy has exposed a stark divide between officers slated to wear the devices and civilians hopeful that deploying the devices could bring greater transparency and accountability.
Draft Policy, Investigations and Law
The conflict played out at a recent Police Commission meeting dedicated to gathering public input on the department's draft body-camera policy. The policy would allow officers to review video for most routine matters, but it contains suggested "carve-outs" in the following circumstances:
- In an officer-involved shooting or in-custody death
- If an officer is the subject of a criminal investigation
- Or at the discretion of the Chief of Police or his/her designee
The draft isn't entirely clear on what should happen under those circumstances, though, according to Little. The list is followed by this qualification, which, Little said, appears to undo the exceptions:
For the above listed circumstances, the Department's administrative or criminal investigator will coordinate with the member or the member's legal representative to arrange the viewing of the BWC recording prior to the member's interview.
The police union and public defender's office clashed about what the draft policy actually means. The union insists it would allow members to review footage before being interviewed; the public defender's office says it doesn't allow that.
The battle over the body-camera policy parallels a conflict built into the Police Department's protocols for investigating officer-involved shootings. On one hand, officers are protected by the Fifth Amendment right to avoid incriminating themselves, and thus can't be forced to give a statement. On the other hand, they're bound by Police Department policies that require them, as employees, to cooperate with investigations. They can be fired if they refuse to give a statement, according to Police Chief Greg Suhr.
Investigations of officer-involved shootings in San Francisco are highly complicated, SFPD internal affairs Sgt. John Crudo said, due not only to the conflict between constitutional rights and labor law, but also the potential for several jurisdictions, Police Department divisions and city departments to become involved. Crudo produced this "plain-English" description of the process, drawn from state and federal law and several department general orders:
"Interviews [of involved officers] are conducted by the investigators as close to the time of the incident as possible," Crudo said. "It's important to understand this interview is provided voluntarily. ... The officer retains their Fifth Amendment rights."
At the outset of an interview, homicide investigators, along with a district attorney's investigator and a prosecutor, tell the officer he or she is not under arrest and is free to go -- a formality called a Beheler advisement or admonishment.
"No suspect in an incident can be forced to make a statement against themselves, to self-incriminate," Crudo said. "That's a constitutional right. It's guaranteed in the Fifth Amendment. That includes police officers. However, a police officer can be compelled to make a statement at the risk of their job."
A statement can be compelled through what's called a Lybarger admonishment, after the California Supreme Court case Lybarger v. City of Los Angeles.
Police Urge Review
The conflict rarely arises now, according to SFPOA President Martin Halloran, but he has repeatedly promised that would change if officers involved in shootings are not allowed to view body-camera footage before their interviews.
"If they're not allowed to view the footage, they will be advised by their counsel not to provide that voluntary statement," he said. "I believe this will be less transparent. It will be taking a step backward here in San Francisco."
Halloran was joined by more than a half-dozen current and former San Francisco officers, who urged the commission to allow "pre-interview review."
Homicide investigator Chris Canning was among them.
"My fear personally is that if officers are unwilling to give a voluntary statement," he said, "I will be unable to, in a timely manner, recreate an incident with available evidence."
Officer Kevin Lyons asked commissioners to put themselves in the shoes of a beat cop.
"When video evidence is reviewed by the district attorney, public defender, law enforcement and attorneys, it is reviewed for days, weeks, if not months, and then dissected frame by frame," he said. "If best evidence is the goal, then reviewing the video provides that ability. If gotcha is the goal ... officers invoking their Fifth Amendment rights shall be a normal course of business."
Attorneys with the San Francisco Public Defender's Office and San Francisco Bar Association say there's nothing wrong with allowing an officer to provide a supplemental statement later -- the procedure Oakland follows.
"That gives them a perfect opportunity to give a full report," Deputy Public Defender Chris Hite said, "but also it doesn’t take away the perceptions officers would have without video."
An officer's perception is central to a 1989 Supreme Court ruling that further clouds the issue. Graham v. Connor established an "objective reasonableness" standard for deciding the legality of a use of force by a police officer under the Fourth Amendment.
"The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," according to the ruling.
Internal Affairs Sgt. Crudo described Graham's impact on officer-involved shooting investigations this way:
"[Investigators] are going to want to know what training and experience the officer has, what information was known to the officer when force was used," he said. "It's not what information is out there, but what did the officer know, what did the officer act upon? What did the officer see and perceive at the time force was used, and why did the officer act or react using force?"
Law professor Little said there is no shortage of research finding that, even without an intent to mislead, viewing video of an event will alter recollections.
"All human perception is influenced by what we think the evidence shows," he said. "It is useful to get a witness's perception before their perception is altered by whatever they think the evidence might be against them. ... I have to say that as a former prosecutor, it's not something I would normally do with a suspect. I would not normally show a suspect evidence before I interview them."
But San Francisco District Attorney George Gascón -- a former cop who served as San Francisco police chief -- supports allowing officers to view video before being interviewed.
"We're trying to get to the bottom of things," he said. "We're trying to get to the truth, and we want to give the officer an opportunity to have a full context of what occurred."
The overwhelming majority of San Francisco residents testifying before the Police Commission disagree.
"I want to know that an officer's report, which is often taken as a true and accurate depiction of events, was not tailored to fit what is visible on the video footage," San Francisco resident Chelsea Ducote told the commission. "I want transparency. I want accountability. I want to know that SFPD is doing everything it can to have the most upstanding and honest individuals protecting us."
Electronic Frontier Foundation activist Nadia Kayyali recited the names of several people shot and killed by San Francisco police in recent years before urging the commission to prevent officers from watching body-camera video before making a statement.
"This is not a bloodless conversation," she said, "and this is not a bloodless policy."