Louisiana’s Future with Body Worn Cameras

by Jacob Lundy

As always, FOP New Orleans strives to keep members ahead of the curve when it comes to changes in law and policy; both of which seem to occur with considerable frequency in recent years.

As all members of the New Orleans Police Department are aware; we have yet to see any of our body worn camera videos on the evening news. Whether you think that’s a good or a bad thing, it is likely to change in the future. Given events in Chicago over the past several months, combined with the general direction of criminal justice transparency it seems likely that all body worn camera-equipped agencies nationwide will be forced to contend with the public’s desire to see what all these cameras are recording sooner or later. NOPD, for good reason, hastened the implementation of body camera use for the obvious benefits they provide to both police officers and citizens. Clearly, the idea was to get body cameras out into the field as quickly as possible and revisit aspects of Policy 447 (BWC) as needed. As with an ever increasing number of other states, Louisiana state law may soon dictate how and when such videos are made available to the public – among a number of other issues related to managing a body worn camera program.

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The State Legislature has convened a body worn camera task force with the aim of submitting a final report on a variety of concerns related to the possibility of state-wide implementation of body worn cameras. As you might expect, FOP has a seat on the Louisiana Legislature Law Enforcement Task Force for Body Camera Implementation

While body worn cameras are nothing new to NOPD; public release of footage would add another dimension to the now ubiquitous workplace devices and FOP intends to prepare its membership for the corresponding challenges. While a finalized state law could be quite a ways down the road, NOPD continues to transform into an agency of national firsts; FOP would not be surprised to see the department blaze its own trail ahead of the legislature in this arena. Regardless, FOP New Orleans would suggest officers assume today that all videos generated will be subject to public viewing. All of us at NOPD have been working over the past two years with the understanding that all issues of policy and law, from courtesy to use of force, can and will be reviewed via body camera footage by PIB, the FBI, FIT, OCDM, and the IPM (I believe that’s all of them). The men and women of NOPD have embraced the technology and far exceeded expectations in both implementation and performance. Regardless of the department’s exceptional performance, under any new public release law or policy a primary concern of lodge attorney Donovan Livaccari are the implications of actions and statements made between officers during and immediately following critical incidents which were formerly analyzed only by field experts. Members are reminded that a side effect of such transparency is that your actions are likely to be subjectively analyzed, often out of context, by any number of pundits for whom controversy = revenue. Your detractors are not necessarily influenced by the guiding principles of Graham v. Connor. Officers should remain cognizant that all statements made immediately following highly stressful encounters on body camera are indelible and have the ability to shape post hoc analysis of critical incidents. There is really no reason to be ambiguous on this topic; while engaged in the scope of your employment, should you become involved in a major use of force, however justified, you will become a de facto suspect in a criminal investigation. This is a practical FYI for all FOP members who are negotiating a rapidly changing law enforcement environment where literally everything you say and do is recorded – and may soon be at the top of the 5 o’clock news. FOP representatives will be making the rounds in the near future to discuss legal, privacy, and policy concerns with members.

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First meeting of the State Legislature Body Camera Task Force

As referenced above, the Louisiana Legislature created the Louisiana Legislature Law Enforcement Task Force for Body Camera Implementation in late 2015 which is comprised of various experts from state and local law enforcement, attorneys, ACLU and NAACP representatives, mayors, Darrell Basco (President of the Louisiana FOP), and is chaired by Franz Borghardt (criminal defense attorney, Baton Rouge). I spoke with Chairman Borghardt in Baton Rouge following the first meeting of the committee for some background and details on the work ahead, keeping in mind any eventual state legislation will certainly apply to NOPD and guide our continued use of the technology.

Chairman Borghardt on the creation of the task force; “the legislature, in HCR 180 (2015 R.S.), created the task force to study and make recommendations regarding requirements for the development and implementation of policies and procedures for the use of body cameras by law enforcement. This came from a House concurrent resolution by Representative Honore and Senator Broome as a response to legislation that was proposed to mandate, by law, the required use of the devices. The task force’s continued existence is governed by resolution and the task force itself serves at the pleasure of the Louisiana Legislature.” Borghardt continued, “the ultimate goal of the task force is to make an informed and well thought out proposal to the Louisiana Legislature with regard to the implementation and use of body cameras in Louisiana. This includes policies and procedures on implementation, considerations for privacy rights and officer safety, effects on public records law, data storage, and cost considerations.”

To-date the task force has met once for public discussion, a review of the goals of the committee, and homework was assigned to all members for research and input from their respective bodies/agencies to be submitted at future meetings. The committee will reconvene in March 2016.

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Some early discussions of the committee have been focused on a constitutional issue surrounding any mandate that all agencies in Louisiana implement body cameras; under Louisiana’s constitution, the state cannot mandate municipalities implement body cameras without paying for them. I think everyone would agree the state is in no position financially to pay for several thousand body cameras and incur the cost of maintenance and storage. The state does have the option of something called an unfunded mandate, meaning the legislature could require municipalities to implement body cameras at their own cost; those that do not would have state funding in some other area cut (remember when the federal government “suggested” Louisiana raise the drinking age from 18 to 21 or they would cut federal highway dollars = unfunded mandate). This avenue seems unlikely, however. On this particular issue, committee Chairman Franz Borghardt said “legislation that creates an unfunded mandate would likely be something that all parties involved would like to avoid.” What route the state takes in requiring or suggesting all police agencies adopt body cameras remains to be seen, Borghardt identified “long term cost of data storage” as one of the biggest perceived obstacles to state-wide implementation.

Beyond state mandates and associated costs, the most contentious item seems to be the host of privacy issues that surface with body camera use. This includes everything from front-end privacy concerns (can a citizen request an officer turn off his/her camera in their residence, filming in hospitals/schools, etc.) to back-end issues such as release of videos pursuant to records requests – the committee is also discussing whether our current public records law infrastructure would apply to camera footage as-is.

 

FullSizeRender 6Recently committee Chairman Franz Borghardt, Louisiana FOP President Darrell Basco, and others appeared as panelists on the Louisiana Public Square television show in Baton Rouge to discuss the committee’s work and common concerns about body cameras. FOP New Orleans also participated in the discussion on behalf of members to voice lodge concerns. We recommend viewing the show to get a state-wide gauge for the direction of body cameras in Louisiana (watch the show by clicking this link).

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In addition to formulating FOP’s official position on specific points on the commitee’s agenda, FOP President Basco cautioned the committee against hasty legislation that could potentially negatively impact both officers and the public. President Basco is advocating for a thorough review of existing state law elsewhere; the successes and failures of legislation in other states, carefully considering Louisiana’s privacy concerns, and preparing a proposal for a future session so that all members of the committee feel confident in any end result legislation.

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All members of the task force, including the FOP, are sourcing model legislation and existing research and data for submission to the committee. Representatives from New Orleans will also be giving a presentation to the committee on our city’s two years of experience with body worn cameras including the various pros  and cons over that time.

Members wishing to see the direction other states have paved in this area can refer to The Reporter’s Committee for Freedom of the Press site which includes an interactive map with links to each state’s body camera laws (both existing and in-progress legislation). Also worth reading; the Department of Justice/Police Executive Research Forum study “Implementing a Body-Worn Camera Program; Recommendations and Lessons Learned”.

Regardless of existing data and research, Chairman Borghardt appropriately points out that “it is evident that the implementation of body cameras, in as much as policy and procedures can be enacted, will also require organic growth in understanding unforeseen issues with their use.”

As FOP New Orleans’ policy chair, I can report with confidence from the legislative committee to ongoing discussions in Baton Rouge; there is overwhelming support for body cameras across Louisiana but no consensus on when and how videos should be made public.

Additional articles/studies and relevant law can be found in the hyperlinks below;

Louisiana Title 44.1 et seq Public Records Louisiana Revised Statutes

7 Findings from First Ever Study on Body Cameras PoliceOne.com

Growing use of Police Body Cameras Raises Privacy Concerns Los Angeles Times

Use of Force Reporting Guide and Checklist Signal108, Donovan Livacarri

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Reasonableness and Post-Riley Smartphone Searches

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The below article was reproduced from The Federal Law Enforcement Informer, August 2015 issue.  The Informer is a product published by the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Office of Chief Counsel, Legal Training Division.  The entire document, which contains case notes on notable federal cases, can be found here.

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Privacy and Email #FOP #FOPNO #NOPD @fopno

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NOPD Policy 212 makes it clear that employees of the New Orleans Police Department have NO EXPECTATION OF PRIVACY when using their employer provided email account. This is generally a true statement whether the policy says so or not.  It is also generally a true statement regardless of your employer.  Do not send anything over your employer’s email system that you do not want someone else to easily have access to.

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As an attorney who represents police officers and other types of employees, my clients enjoy privileged communication with regard to legal matters.  However, if those communications are made using your employer’s email, you will likely waive that privilege because you clearly have no expectation of privacy using your employer’s email network.

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Facebook Privacy and Law Enforcement Officers

With Facebook’s new Graph Search, I can search for people employed by the New Orleans Police Department.  How many results would I get?  Hundreds and hundreds.  I can search for New Orleans Police Department employees who live in Metairie.  I can search for New Orleans Police Department employees who graduated from Brother Martin High School.  There is a lot of information on Facebook.

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Image via CrunchBase

There are people who would advocate that law enforcement officers should immediately deactivate their Facebook profile if you have one or continue to stay away if you do not.  While I do not necessarily share the same extreme views, there is merit to this position.  If you enjoy Facebook or want to enjoy Facebook, you should do it.  Keep in mind the expanse of information contained therein.  This advice is really for everyone:  If you have a Facebook account or are thinking about creating one, familiarize yourself with the privacy options.  But know that there is someone who can get to your data even if you employ the most severe privacy settings.

A couple of quick observations:

In the early morning hours of February 23, 2013, Police Officer John Passaro of the New

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New Orleans Police Department (Photo credit: Wikipedia)

Orleans Police Department was shot in the line of duty.  At 8:13 p.m. on February 23, 2013 a story appeared on NOLA.COM titled “Shooting of NOPD Officer Reminds Local Law Enforcement of Dangers They Face Daily.”  The title of the article is certainly a true statement.  The final six paragraphs of the article came directly from Officer Passaro’s Facebook page.  Fortunately, the reporter was not looking to blast Officer Passaro and Officer Passaro’s Facebook page was not full of statements which could be taken out of context or used to embarrass him or his family.  I am sure you all know someone who would not be as lucky if their Facebook page was published in the newspaper.

In Virginia, six employees of the Hampton Sheriff’s Office were fired for supporting the incumbent Sheriff’s opponent.  One of those employees was fired because he clicked Like on the candidate’s Facebook page.  In Graph Search, I can search for New Orleans Police Department employees who like Bobby Jindal.  This case (Bland v. Roberts) is currently on appeal in Virginia, but the district court held that clicking like was insufficient speech to merit constitutional protection.

In Steubenville, Ohio, several high school football players were accused of raping a 16-year-old girl at a party pictures and videos were uploaded to Facebook.  These pictures were deleted shortly after they were posted.  Football is very big in Ohio and there were allegations of a cover up because some of the alleged perpetrators were star football players.  In response to this cover up, members of the hacker group Anonymous hacked into various social media accounts and were successful in retrieving the previously deleted pictures and videos which they turned over to the national media.

In California, amidst a fight over public records, members of Anonymous posted the names and addresses of six Long Beach police officers along with names and ages of family members.

Take the time to review your security and privacy settings in Facebook.  For example, I would recommend activating Login Approvals and Login Notifications.  Login Approvals can be found in Account Settings under Security.  Login Approval requires you to enter a code which is texted to you each time you log in to Facebook on a different computer.  It keeps track of the computers you authorize so you only have to enter the code once.  Of course you can also remove devices or computers from the list of authorized devices later if you want.  Login Notifications will notify you if someone logs in to your Facebook account.  On the same page, you can check Active Sessions which will tell you everywhere your Facebook account is logged in.  From there, you can close sessions which you may not want to continue or that you did not authorize in the first place.

Remember not to put too much personal information on Facebook.  Your birthday is just as valuable to some as your social security number.  Also, you may be a huge fan of the 2nd Amendment, but clicking like on all those NRA pages or reposting all of those gun rights pictures secretly sponsored by the NRA is likely to make you look like a gun nut if you are involved in a shooting.  Familiarize yourself with all of the settings that restrict (or grant) access to the things that you post.  There is a link to Privacy Shortcuts on the menu bar between the Home link and the settings button.

There is a lot of information on this topic on the Internet.  Take some time and do some reading.  For example, this article on Lifehacker provides some good information.  It may pay off later.

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Privacy and Communication for Law Enforcement

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As we have seen previously, law enforcement officer enjoy virtually no privacy with regard to communications made using equipment which belongs to the department.  In fact, some things are recorded and kept for years just in case someone may need to retrieve them later.  These things, like recorded dispatch channels or MDT to MDT chats, are also public records.  However, this data would most likely be accessed by the officer’s own agency.  The data could be accessed for some type of data analysis or for some type of internal investigation.

Today, the New Orleans Police Department updated its regulations on cell phones.  Policy 702, effective today, lays out NOPD policy with regard to agency owned phones and personal phones/tablets.  It clearly states in 702.2 that there is absolutely no expectation of privacy with regard to communication made using departmental equipment.  The bigger question is what are your privacy expectations with regard to a privately owned device.

Phones and tablets are so common-place today that everyone expects the next guy to at least have a cell phone.  Tablets have not quite gotten to that level, but they are more common than ever.  So, the department has decided you can carry it with you, subject to some restrictions.  The department can not unilaterally impose a no right to privacy edict on your personally owned phone.  Or can they?

First of all, the department can limit your use of a device for personal business.  Along with always having a phone with you comes the fact that people always have your phone number.  They may not have your working schedule.  So, what is allowable with regard to personal phone calls?

The regulation gives some guidance.  You can call your wife to let her know you will be late getting home from work.  You can answer a call from your wife in the event of a family emergency.  Can you call your wife to discuss your son’s failing grade in math?  Probably not.  I suggest thinking about it as if you were sitting on the desk.  What would be an acceptable amount of time to spend on the phone conducting personal business?  The answer is probably not much.

Can you conduct official business on a personal phone?  I think the answer is maybe.  You   can certainly use it for emergencies if you are unable to use the radio for some reason.  Platoon personnel have to be careful not to use the phone for what you would otherwise use the radio (dispositions, callbacks, etc.).  You can not use bluetooth ear pieces.  You can not text while you are driving.

Again, the big question is privacy.  I think the answer is that if the communication is of an official nature, it is likely that the department can and will order you to relinquish the information.  That includes phone records, text messages, or whatever.  You can probably redact your personal information.  However, if the official business is a disciplinary action because an officer was using the phone for personal business while standing on the parade route, then suddenly your personal business, which you may have otherwise enjoyed a privacy interest, may become official business and be subject to disclosure.

I know this all sounds grim.  Police officer enjoy less of a First Amendment right than your average citizen.  Police officers enjoy less of a privacy interest than your average citizen.  You would need a search warrant to obtain that kind of information from a private citizen during the course of an investigation.  This, however, is the current state of the law.

Finally, with the Sugar Bowl, Mardi Gras, and Super Bowl XLVII around the corner, it would probably be to everyone’s benefit to be familiar with all of the regulations found in Policy 702, particularly 702.5.  I see DI-1’s in the near future.