City Bar Issues Comments on NYPD Body-Worn Camera Pilot Project

The New York City Bar Association has issued comments on the New York City Police Department’s Body-Worn Camera (BWC) policy as the Department begins to roll out its pilot program.

The City Bar supports the principal objectives of the program as laid out in the NYPD’s Draft Operations Order – “To provide a contemporaneous, objective record of police-civilian encounters, to foster police accountability, and to encourage lawful and respectful interactions between the police and the public.” Following its assessment of the NYPD’s current BWC policy, the City Bar provides the following comments and suggests the following recommendations for the NYPD’s consideration as it assesses the pilot project over the next year:

• Endorsement of NYPD BWC policy: Officers involved in a Level 3 use of force incident should be permitted to review the recordings prior to making an official statement concerning the incident, at a time and place to be determined by the officer in charge of the investigation. “By adopting a policy of investigative supervisory control of access to footage of use-of-force incidents, the NYPD attempts to find a middle ground between a rule of “no access” that is proposed by the New York City Department of Investigation (DOI) and recommended by the American Civil Liberties Union (ACLU), and a rule of “free access” recommended by DOJ.” 

• Recommendation 1: Officers should activate their cameras before initiating a civilian encounter if there is any level of suspicion of unlawful activity by the civilian, or any prospect that the civilian will be asked to present identification, submit to a search, or be detained, summonsed, or arrested. This is consistent with policies recommended by both the U.S. Department of Justice and International Association of Police Chiefs.

• Recommendation 2: Officers should notify subjects that they are being recorded immediately, except when doing so would be unsafe, impractical, or impossible. The City Bar’s report argues: “In some cases, the subject’s awareness of recording should promote courtesy and reduce strife. In other cases, the camera may exacerbate a situation where a subject is already hostile or enraged. Only by studying the actual effects of notification will we learn how police-civilian interaction is affected by the awareness of the camera.”

• Recommendation 3: Recordings of police-civilian encounters should be made available promptly to the civilian who was recorded, subject to relevant safety and privacy limitations in the Freedom of Information Law, notwithstanding the fact that criminal proceedings are pending against them or others. “A policy of non-access to BWC recordings during lengthy criminal prosecutions and investigations is inimical to the goal of public access,” states the report. “FOIL-access should be denied only upon an affirmative showing that disclosure would actually “interfere” with the pending proceeding or investigation, and only to the extent that other law enforcement exemptions actually apply.”

• Recommendation 4: An unjustified failure to record or to preserve actions that are subject to mandatory recording – including arrests, vehicle or civilian stops, searches or uses of force – should be subject to the same discretionary range of judicial sanctions as wrongful failure to record or preserve any other form of discoverable evidence: adverse inference instructions, witness preclusion, or issue preclusion.

The City Bar offers these comments and suggested modifications to the policy for consideration as the NYPD continues its ongoing internal review and assessment of its BWC policies. It is our hope that the recommendations can help “better achieve the goals of objectivity, accountability, and respectful interaction.”

“We appreciate the Department’s efforts to engage with the public and the Bar on implementation and regulation of the NYPD camera program” the City Bar writes. The City Bar’s Criminal Courts Committee and Corrections & Community Re-Entry Committee co-authored the recommendations.

The full recommendations can be read here.

About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org