TexasCHLforum.com

https://texasattorneygeneral.gov/opinio ... 0177KP.pdf

The DA of Dallas County has asked the Texas AG for an opinion on when officers involved in a shooting may review body cam footage other than their own.

It turns out that Texas statute provides that peace officers involved in any incident (not just a shooting incident) are allowed "...to access any recording of an incident involving the officer before the officer is required to make a statement about the incident."

The DA focuses on officer-involved-shooting (OIS) incidents and says she supports allowing an officer who fired his gun in an incident to access his own body cam video prior to making a statement, but does not support allowing him access to other officers' videos, as it may provide information to the officer that he may not or could not have been aware of at the time he made a decision to shoot. She cites as one potential consequence that the OIS officer's later testimonial credibility could be lessened. She doesn't explain this in detail, but I assume she means it could be claimed he is testifying to events that he actually didn't witness.

Unfortunately for her wishes, IMHO, the excerpt from the statute that she quoted says "any recording," not just his own recording, of an incident involving the officer. To get what she wants the definition of "involved" would have to be drawn very narrowly indeed.

ETA (somehow I deleted my own last paragraph): But I have been surprised before. I think she has a point, but it appears to me the law does not support her position.

An interesting problem. The "any recording" language is sweeping, but my guess is the courts will limit it in some way. If a bystander happens to record an incident, does the officer have a statutory right to review the bystander's recording? If the officer says there was a bystander with a camera, can the officer defer his statement until the bystander is found? If there is a large crowd of bystander's one of whom may have recorded something, can the officer defer his statement until all crowd members have been investigated?

No doubt other variations exist.

Then there's the moral risk of the police taking custody of a recording that may reflect badly on them.

KLB wrote:... If a bystander happens to record an incident, does the officer have a statutory right to review the bystander's recording?...

I haven't gone back to read that whole section of the Code, but I suspect that since that section is about police department policies for police body cameras provided by grant or otherwise, that that limits his right to review video to police body cams. Or at least limit it to "body worn cameras," which would rule out nearly all bystander videos.

I can see the benefit to the officer of reviewing all available footage before making a statement. I'm just wondering why we shouldn't all have that same benefit when we are involved in a shooting or other possible crime.

Soccerdad1995 wrote:I can see the benefit to the officer of reviewing all available footage before making a statement. I'm just wondering why we shouldn't all have that same benefit when we are involved in a shooting or other possible crime.

OTH, there is something to be said for protecting the video evidence from an unscrupulous officer too. My personal inclination would be to download my video to a device which is neither connected to the Internet or to my phone, and then erasing it from my phone.....then waiting to see what is disclosed. If enough corroborating evidence already exists out there to either support or refute the officer's statement, and they act in accordance with the evidence, then they certainly don't need MY video. OTH, if it looks like the official statement is going to cover up what actually happened, and I am in possession of the only video which contradicts the coverup, then I might likely go public with it at the same time as I provide it to the police. I'm big on accountability, but I see no reason to beat up on an officer who IS being accountable. OTH, if police are trying to avoid accountability, then I see every reason to ENFORCE it. By releasing such a video to the media at the same time as I release it to the police, it would ensure that the media holds the police accountable in the court of public opinion.

I am taking my example from the nurse who was improperly arrested while trying to protect her unconscious client from a police violation of his rights AND while enforcing the policy which both the hospital and the department had already agreed to. She withheld releasing the videos of her false arrest until it became apparent that the department was going to whitewash the incident and let the guilty cop off Scott free. In other words, she gave the police a chance to BE accountable, before she FORCED them to be accountable. THAT is exactly how I would treat my own video recordings of an officer involved incident - hold them until the police demonstrated that they were not going to act in accordance with what I had witnessed and then come forward at that time. If they act with accountability right off the bat, then they don't need me to beat up on them.

Side question: Looking at the language, if I were to get video on my phone of an incident, does that mean the officer can take my phone or just look at the video and get a copy?

MechAg94 wrote:Side question: Looking at the language, if I were to get video on my phone of an incident, does that mean the officer can take my phone or just look at the video and get a copy?

I think it is referring only to video, from DPD body cams, and only from those of any officers who were on the scene, or involved in the incident. Any privately held videos, if known, or believed to exist, could only be obtained through subpoena, or warrant. All PD/ SO body cam video, is owned by that department, and as such owned by the public, and subject to disclosure through the Open Records Act.

I personally, have no issue with an officer, viewing any and all video from an incident, before making a statement. The video doesn't lie. It may be grainy, and hard to see, in certain situations, but as long as it is unaltered in any way. it is, what it is. In an officer involved shooting. the officer, is human, and as such, is subject to tunnel vision, adrenaline rush, and a myriad of other things that go along with it. Memory, can become fuzzy, or in some instances, non-existent, as to minute details. Secondly, what an officer sees, or believes, he/she sees, may be totally different, from another officer's perspective standing a few feet away. lighting changes, point of view changes, etc.
The officer who fired the shot, may have "thought" he saw a gun, and reacted accordingly. The officer three feet to his right, may have recognized the item, being held, as a cell phone, and so, did not react, by drawing and firing.
It sounds to me like the Dallas DA, wants to only have officers, view one perspective, and then give a statement, so that she can yell "gotcha" if another body cam shows any discrepancy. Viewing other perspectives, in my opinion, will not change an officer's statement, or recollection, but it may help, jog his/her memory, that stress, may have blanked out. As long as his/her statement, doesn't disagree with the video, even if it puts the officer in a bad light, there should be no problem. JMHO

Jusme wrote:

MechAg94 wrote:Side question: Looking at the language, if I were to get video on my phone of an incident, does that mean the officer can take my phone or just look at the video and get a copy?

I think it is referring only to video, from DPD body cams, and only from those of any officers who were on the scene, or involved in the incident. Any privately held videos, if known, or believed to exist, could only be obtained through subpoena, or warrant. All PD/ SO body cam video, is owned by that department, and as such owned by the public, and subject to disclosure through the Open Records Act.

I personally, have no issue with an officer, viewing any and all video from an incident, before making a statement. The video doesn't lie. It may be grainy, and hard to see, in certain situations, but as long as it is unaltered in any way. it is, what it is. In an officer involved shooting. the officer, is human, and as such, is subject to tunnel vision, adrenaline rush, and a myriad of other things that go along with it. Memory, can become fuzzy, or in some instances, non-existent, as to minute details. Secondly, what an officer sees, or believes, he/she sees, may be totally different, from another officer's perspective standing a few feet away. lighting changes, point of view changes, etc.
The officer who fired the shot, may have "thought" he saw a gun, and reacted accordingly. The officer three feet to his right, may have recognized the item, being held, as a cell phone, and so, did not react, by drawing and firing.
It sounds to me like the Dallas DA, wants to only have officers, view one perspective, and then give a statement, so that she can yell "gotcha" if another body cam shows any discrepancy. Viewing other perspectives, in my opinion, will not change an officer's statement, or recollection, but it may help, jog his/her memory, that stress, may have blanked out. As long as his/her statement, doesn't disagree with the video, even if it puts the officer in a bad light, there should be no problem. JMHO

This makes it easy for an officer to make a statement that fits a scenario beneficial to him/her instead of what may have happened to him/her in real time. I hope that if I am ever involved in a legal issue like this that I get to see everything the prosecutor side has before I ever make a statement.

rotor wrote:

Jusme wrote:

MechAg94 wrote:Side question: Looking at the language, if I were to get video on my phone of an incident, does that mean the officer can take my phone or just look at the video and get a copy?

I think it is referring only to video, from DPD body cams, and only from those of any officers who were on the scene, or involved in the incident. Any privately held videos, if known, or believed to exist, could only be obtained through subpoena, or warrant. All PD/ SO body cam video, is owned by that department, and as such owned by the public, and subject to disclosure through the Open Records Act.

I personally, have no issue with an officer, viewing any and all video from an incident, before making a statement. The video doesn't lie. It may be grainy, and hard to see, in certain situations, but as long as it is unaltered in any way. it is, what it is. In an officer involved shooting. the officer, is human, and as such, is subject to tunnel vision, adrenaline rush, and a myriad of other things that go along with it. Memory, can become fuzzy, or in some instances, non-existent, as to minute details. Secondly, what an officer sees, or believes, he/she sees, may be totally different, from another officer's perspective standing a few feet away. lighting changes, point of view changes, etc.
The officer who fired the shot, may have "thought" he saw a gun, and reacted accordingly. The officer three feet to his right, may have recognized the item, being held, as a cell phone, and so, did not react, by drawing and firing.
It sounds to me like the Dallas DA, wants to only have officers, view one perspective, and then give a statement, so that she can yell "gotcha" if another body cam shows any discrepancy. Viewing other perspectives, in my opinion, will not change an officer's statement, or recollection, but it may help, jog his/her memory, that stress, may have blanked out. As long as his/her statement, doesn't disagree with the video, even if it puts the officer in a bad light, there should be no problem. JMHO

This makes it easy for an officer to make a statement that fits a scenario beneficial to him/her instead of what may have happened to him/her in real time. I hope that if I am ever involved in a legal issue like this that I get to see everything the prosecutor side has before I ever make a statement.

Not necessarily, as I stated, the video, won't lie, it won't condemn, or vindicate, it will only show what it shows. Body cams, have drawbacks in that, they are mounted on the chest, of the officer. It won't pick up images, he/she may see, by turning his/her head. Dash cams, are the same way, in that they only show a limited perspective. How many times, have we seen video's that miss the actual incident? Having multiple viewpoints will provide a better picture of what happened, if there are multiple officers wearing body cams, but there is still the possibility, that the other officers weren't positioned, in such a way, to show everything. If an officer is in the wrong i.e. excessive force, unlawful arrest, unlawful search and seizure, etc. the video/audio, will show that. It may not show, what an officer perceived as a threat, if it was out of camera view. Also, as I said, in a deadly force encounter, adrenaline, has a way of blanking the mind. I know from my own experience, that I suddenly had my gun in my hand, with no recollection of drawing it, or even consciously, thinking about drawing it. Tunnel vision also, occurs, but not on video.

Too many times, the press, political activists, and even eyewitnesses, want to paint everything the officer does, as incorrect, but none of those people, were actually, in the officer's position. I am not going to defend the actions, of every officer involved, in a deadly force encounter, because there are many instances, of bad decisions made. But I will give them the benefit of the doubt, until proven otherwise. Police officers are human, as as such, are subject to the same emotional, and physical responses, as everyone else.
Police officers when testifying in court, are allowed to refer to their notes, and written reports when answering questions. In my opinion, seeing all of the pertinent video, is no different.

As for seeing what the prosecution has before making a statement, is your right. It's called the Fifth Amendment, and you do not have to make any statement at all. The prosecutors have to prove, that what you did, was a violation of the law, and any evidence they gather, must be provided to you. JMHO

Jusme wrote:

rotor wrote:

Jusme wrote:

MechAg94 wrote:...
This makes it easy for an officer to make a statement that fits a scenario beneficial to him/her instead of what may have happened to him/her in real time...

...
Not necessarily, as I stated, the video, won't lie, it won't condemn, or vindicate, it will only show what it shows. Body cams, have drawbacks in that, they are mounted on the chest, of the officer. It won't pick up images, he/she may see, by turning his/her head. ...

MechAg94 has the issue the DA is asking about. Getting a statement from the officer -- not only for investigating the incident, but for investigating his actions and possible wrongdoing -- is the point. While his body cam may not pick up things he sees that are out of view of the camera, other body cams will almost certainly pick up things he didn't see or hear, and could not have used in formulating his decisions at that moment. This may go for or against him in determining whether his actions were just and legal.

An officer in court testifying against a defendant, as an investigator who reviewed all the evidence, including what he observed/found and what other investigators found, is much different situation than an officer who is in court as a defendant, defending his own decisions actions. Then he cannot legally rely on information gathered by others that he had no knowledge of prior to his taking action. Again, this can cut for or against him.

If I have a video of an OIS and the police want to see it, I will be happy to post it on youtube for all to see.

A little follow-up:

I checked to see if an opinion had been issued in this case, but appears not. However, I did discover another request for a body worn camera opinion from the state legislature: https://www.texasattorneygeneral.gov/op ... 0180KP.pdf

In my restatement of what I think I read, it appears that Senator Lucio is asking if law enforcement can withhold a body camera video from a member of the public or a member of the government (e.g. city manager) if the head of LEk agency determines the body worn camera video could be used in a criminal proceeding and the viewing of it by the requestor could hinder detection, investigation, or prosecution of the crime.

ELB wrote: MechAg94 has the issue the DA is asking about. Getting a statement from the officer -- not only for investigating the incident, but for investigating his actions and possible wrongdoing -- is the point. While his body cam may not pick up things he sees that are out of view of the camera, other body cams will almost certainly pick up things he didn't see or hear, and could not have used in formulating his decisions at that moment. This may go for or against him in determining whether his actions were just and legal.

Ok, so point taken.
However, as has been pointed out, the body cam does not see what the officer sees with his eyes, it sees what it is pointed at.
So the officer may very well have seen something with his own eyes that justified his actions, that his body cam did not record because it was pointed in a different direction.

His fellow officers body cams however may have recorded the "thing" that was seen.

Should that 1st officer not have access to THE footage that recorded what HE saw, or only what HIS body cam saw?

I get this can be used by a bad cop, but is that justification for hindering a good cop?
We disagree that the BAD guys with a gun should not be cause for action against the good guys with a gun...Why are some suggesting that just because a bad cop might use others video footage unscrupulously, we should hinder and limit that good cop?

ELB wrote:A little follow-up:

I checked to see if an opinion had been issued in this case, but appears not. However, I did discover another request for a body worn camera opinion from the state legislature: https://www.texasattorneygeneral.gov/op ... 0180KP.pdf

In my restatement of what I think I read, it appears that Senator Lucio is asking if law enforcement can withhold a body camera video from a member of the public or a member of the government (e.g. city manager) if the head of LEk agency determines the body worn camera video could be used in a criminal proceeding and the viewing of it by the requestor could hinder detection, investigation, or prosecution of the crime.

What if it implicates one of the CLEO's employees?

E.Marquez wrote:

ELB wrote: ...So the officer may very well have seen something with his own eyes that justified his actions, that his body cam did not record because it was pointed in a different direction.

His fellow officers body cams however may have recorded the "thing" that was seen.

It can be argued that if relied on that in making his decision he can and should articulate that. Then the investigation by others should find that supported by his fellow officers' body cams.