Public Sector Risk

Capturing the Moment

Video technology is being used more frequently by municipalities to reduce liability involving police activities
By: | October 8, 2014

In Ferguson, Mo., most recently, but in a growing number of situations, citizens are using their cellphones to capture videos of police officers in action.

Often, those videos offer negative portrayals, but more and more, police departments are using similar technology to demonstrate their professionalism and protect their reputations.

“We may have reached the point where video technology is producing a full-fledged revolution in policing,” said Jay Stanley, senior policy analyst with the American Civil Liberty Union’s speech, privacy and technology project.

“That revolution has been crystallized, or at least revealed by, the events in Ferguson. The first element of that revolution is a growing expectation among Americans that any dramatic event that takes place in public will be recorded on video.”

“We may have reached the point where video technology is producing a full-fledged revolution in policing.” — Jay Stanley, senior policy analyst, American Civil Liberty Union

In reality, dramatic events may be dwarfed by the mundane day-to-day routine, but body-worn cameras (BWCs) are being used by a rapidly growing number of police departments around the country. Such use has, among other things, proven a boon to reducing liability suits brought against police departments.

Use of BWCs reduced the use of force incidents by 59 percent at the Rialto, Calif., police department in the year after it introduced its program in 2012, while reducing citizens’ complaints by 87.5 per cent, said Police Chief Tony Farrar, who added that he was convinced there was a direct connection between these dramatic declines and the introduction of BWCs.

Proponents of body-worn cameras by police officers say they protect officers from false accusations, reduce agency liability and citizen complaints, and provide evidence for use in court.

A study sponsored by the International Association of Chiefs of Police noted that 93 percent of police misconduct cases where video was available resulted in the officer’s exoneration; 50 percent of the complaints were immediately withdrawn when video evidence was used, and 94 percent of citizens supported the use of video.

Steve Tuttle, a founding team member of TASER International, observed in “The biggest issues that body-worn cameras can solve are reducing litigation and complaints while increasing officer efficiency. Ultimately it reduces the he said/she said, which saves communities money in meritless complaints.”

Video saves time, money and sometimes officers’ jobs, added Michael Millhollen, marketing specialist at Digital Ally, Inc., whose products include the FirstVu officer-worn or mountable video systems.

“Faced with the knowledge that an incident is on video, most complaints against the agency are dropped and many prosecution cases are uncontested or expedited,” Millhollen said. “That equates to less investigating allegations as well as reduced expenses from lawsuits and insurance.”

Unanticipated Exposures

Joshua Gold, head of the cyber insurance recovery group, Anderson Kill P.C.

Joshua Gold, head of the cyber insurance recovery group, Anderson Kill P.C.

While early statistics indicate that BWCs are a promising effective risk management tool, like a lot of technological innovations, they can create unanticipated problems, said Joshua Gold, head of the cyber insurance recovery group at Anderson Kill P.C., a NYC-based national law firm specializing in insurance recovery.

“For example, if these cameras capture images of people who are innocent and uninterested in any type of publicity but nonetheless get caught up in unflattering video footage, you could see legal defense coverage costs coverage, at a minimum, being implicated and important to cash-strapped municipalities,” said Gold.

Even something as heroic as officers helping to deliver a baby could arguably constitute an invasion of privacy if the video footage ended up posted to the Internet or lampooned on late-night cable programming, he noted.

“As such, while the BWCs may reduce liability exposure for certain types of risks like bodily injury claims and false arrest claims, they could arguably lead to other exposures dealing with privacy, false light and emotional distress from alleged public humiliation,” Gold added.

“Personal injury and media liability-type insurance coverage would become more valuable if these risks were to pan out.”

Another challenge is how best to store the video footage, whether it is done by the police department or an outside provider.

“Agencies often overlook the need to securely store, manage and retrieve their digital evidence after it has been captured,” said Tuttle.

“To provide the most value, agencies ensure they have a robust plan and service to facilitate data storage, management and retrieval,” he said. “The focus on cameras often makes the back-end solution an afterthought when it is just as crucial, if not more, than the cameras.”

Marilyn L. Rivers, director risk and safety, and compliance officer for the City of Saratoga Springs, N.Y., added: “A high degree of responsibility exists to ensure these videos recorded by police shoulder-cameras and police dash-cams are appropriately kept safe with stringent administrative policies for privacy and management.

Marilyn L. Rivers, director risk and safety, and compliance officer, City of Saratoga Springs, N.Y

Marilyn L. Rivers, director risk and safety, and compliance officer, City of Saratoga Springs, N.Y

“We always want to make sure we don’t have a group of people standing around a computer laughing at a silly puppy video for lack of a better [example],” Rivers said.

Rivers underscored the vital role of privacy in the use of body-worn cameras. “Risk management folks across the country are constantly trying to equalize the safekeeping of our communities while we maintain the balance of an individual’s right to privacy,” she said.

Police officers are always trying to manage that invasion of privacy while still providing protection, she said.

While it’s still too soon for the City of Saratoga Springs to statistically measure results of its camera program, the videos have been helpful in recording the behavior of the folks the police engage with, Rivers said.

“It supplements our law enforcement program and is particularly helpful where we have cameras in downtown areas that are trouble prone,” she noted.

With the wealth of individual camera phones within the community, the shoulder cameras record what the officer experiences from his viewpoint as he deals with various situations, Rivers said.

“It allows a comparison of multiple viewpoints for the same occurrence,” she said. “It also serves as an official recording of what may or may not have happened in any given situation. As a police officer in the face of a potential of multiple cameras recording his or her every move, it is a use of technology that is helpful to his or her workday.

“I would say that it has added to our defense mechanisms as we give those videos to the district attorney’s office when they prosecute cases.”

“Historically, liabilities for allegations of assault, false arrest, wrongful imprisonment, trespass and the like are all covered under standard form insurance liability policies purchased by such entities.” — William G. Passannante, co-chair, insurance recovery group, Anderson Kill

Anderson Kill’s William G. Passannante, New York-based co-chair of the firm’s insurance recovery group, said that state and municipal government entities regularly purchase liability insurance that covers the liability asserted on account of the actions of their police officers.

“Historically, liabilities for allegations of assault, false arrest, wrongful imprisonment, trespass and the like are all covered under standard form insurance liability policies purchased by such entities,” said Passannante.

The apparent reduction in claims in Rialto, Calif., suggests that BWCs could be part of a loss control program supported by insurance underwriters, he added.

“Liability for ‘misuse’ of BWC, such as in a claim for violation of privacy, is at least possible and would very likely be covered by existing insurance policies,” said Passannante.

“Of course, the regulatory scheme under which BWCs are introduced would be expected to address such issues, and I would expect police departments to request certain ‘safe harbor’ provisions regarding the use of camera footage they are required to record,” he noted.

“The most obvious benefit from wearing BWCs,” said Eugene P. Ramirez, Senior Partner at Los Angeles-based Manning & Kass, Ellrod, Ramirez, Trester LLP, “is that law enforcement will be seen as being more transparent and holding itself out as more accountable.

“The use of BWCs will also assist exonerating officers who are targets of citizens’ complaints, and, hopefully, will reduce the number of lawsuits against a department,” he said.

Steve Yahn was a freelance writer based in New York. He had more than 40 years of financial reporting and editing experience. Comments can be directed to [email protected]

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