The Baltimore Police Department policy governing the body camera pilot program that began Monday largely mirrors policies put forward on the national level, but also diverges from some recommendations of a city task force that studied the issue ahead of the program's rollout.
The department released the policy Tuesday after drawing criticism for declining to release it the day before, when more than 150 officers started wearing the cameras in the city's Eastern, Western and Central police districts as part of a two-month pilot program.
One difference between the policy and the task force recommendations relates to when officers who are involved in use-of-force incidents or in-custody deaths, or are the subject of criminal investigations, can view footage from their camera.
The policy allows officers involved in such incidents to view their recordings prior to being interviewed if they have been told by prosecutors that they will not face charges, or if they are administratively compelled by the department to provide a statement. Such compelled statements cannot be used in court proceedings.
The policy further states that officers "who are the subject of an administrative investigation" may view the footage prior to submitting any required reports and "being interviewed by the appropriate investigative unit."
The task force, however, recommended in April that officers involved in such incidents "should be required to make a statement concerning an incident without first reviewing his or her camera footage of the incident."
The task force report notes that recommendation was based on a "majority view" among members of the group, which was comprised of elected officials, community and faith leaders, civil liberties advocates, city and police lawyers, police commanders and police union officials.
Police commanders and lawyers on the task force, including former Deputy Commissioner Jerry Rodriguez, were in agreement, and only members representing the Fraternal Order of Police Lodge 3, the union that represents rank-and-file Baltimore officers, disagreed, said David Rocah, an attorney with the American Civil Liberties Union of Maryland and a task force member
"The fact that now in the operational policies they've done something different in areas I think are critically important is very disturbing," Rocah said.
Neither the Police Department nor the FOP responded to requests for comment on Tuesday.
Rocah said the department's policy creates uncertainty around when an officer can view such footage, and presents a disparity between police officers involved in potentially criminal actions and citizens in similar situations.
"There is little enough trust in police investigating themselves as it is. This does nothing to help that and everything to hurt it," he said. "There is no other circumstance in which police, if they were investigating anyone else, would let that person view video before being interviewed. It would never happen. Period."
That view, shared by other civil liberties groups, contrasts with a 2014 report on implementing body camera programs that was produced for the U.S. Department of Justice's Community Oriented Policing Services division by the Police Executive Research Forum, which determined that officers should be allowed to review video footage of an incident prior to providing a statement.
"The goal is to find the truth, which is facilitated by letting officers have all possible evidence of the event," the report said, and research "into eyewitness testimony demonstrates that stressful situations with many distractions are difficult even for trained observers to recall correctly."
David A. Harris, a University of Pittsburgh Law School professor and an expert on police misconduct, said the crafting of policies around police body camera programs is so new that differences in policy from one group, like the task force, to another, like the Police Department, are not surprising — particularly on issues that call into question the protections that law enforcement officers often enjoy under state laws that average citizens do not.
"It is true, of course, that police officers have a different role in any given case than any citizen would, but the idea that they get a chance to strengthen whatever case that they're going to be called upon to make, whether for themselves or on behalf of the state, will strike some people as unfair," Harris said. "In the climate we're in now, in which people are saying, 'Where's the justice on the other side of the usual equation?' it's no wonder why this leaps out."
"There won't be a right answer," Harris said, "and there won't be one answer, either."
In releasing the policy, the department said it was "important to note" that it is subject to change pending the conclusion of the pilot program.
"Once the pilot program is complete, we will review the findings and adjust the policy based on feedback, recommendations, and best practices," the department said. "Police departments across the nation are adapting their polices and protocols pursuant to administrative and legal nuances associated with this new community trust tool. The BPD is in contact with other major cities to ensure our policies reflect community and legal expectations."
Rocah said the policy also does not spell out whether officers who report a malfunctioning camera, which is required, will be allowed to report for duty without a camera.
"This whole thing is going to be a sham if the officer says, 'Whoops my body cam wasn't working,' and they go out without functioning body cameras," Rocah said.
There is also a lack of clarity in the department's policy whether an officer involved in such an incident, or his or her supervisor, would be responsible for "tagging" — or processing — the raw video of the encounter, Rocah said. And the policy does not specify that officers should begin recording as soon as they believe that the basis for a stop or an arrest is about to occur — rather than at the point they have determined an arrest is imminent, Rocah said.
The eight-page policy otherwise largely tracks with the city task force recommendations and the recommendations made last month by a state commission that reviewed national best practices for law enforcement body camera programs. The state commission issued its recommendations ahead of anticipated legislation in Annapolis next year to govern body camera programs statewide.
The Baltimore policy calls on officers to activate their cameras at "the initiation of a call for service or other activity that is investigative or enforcement in nature," and during "any encounter that becomes confrontational."
It says officers can deactivate their cameras if a victim, witness, or other individual "wishes to make a statement or share information, but refuses to do so while being recorded, or requests that the camera be turned off." It also provides for other exceptions to recording — such as when a victim of sexual violence is being interviewed or when recording would present a risk to an officer.
The department's policy requires officers to speak into the camera before they deactivate it, stating why they are doing so.
"When in doubt," the statement says, "record the interaction."