Baltimore Police Caught By Their Own Body Cameras Planting Evidence: Lessons

In recent days, public defenders in Baltimore have brought to light video of two separate incidents that appear to show police officers planting drug evidence. These incidents hold several lessons for communities around the country that are implementing police body cameras.

As CNN reported,

During the November incident, one officer searched the car and can be heard on his body camera audio expressing his frustration that they came up with nothing and that there’d be negative consequences if they didn't recover drugs and make an arrest, according to [head of the Baltimore public defender’s special Litigation Section Debbie Katz] Levi.

The officers turned their body cameras off and then back on at staggered times, Levi said. She said that one officer told another, “No, you weren't supposed to turn yours on.”

Levi said when the videos turn back on, one officer is seen squatting by the driver’s seat area. “The group of officers then wait approximately 30 seconds. Shortly thereafter, another officer asks if the area by that compartment has been searched,” she said.

“Nobody responds, and the officer reaches in and locates a bag that appears to contain drugs right by where the prior officer was, and where the car had been thoroughly searched about a half an hour prior with absolutely no results.”

This revelation comes shortly after release of another video in which, as the Baltimore Sun summarizes,

a police officer can be seen placing a bag of alleged drugs among debris in a backyard lot, walking out to the street, activating his body camera — which had automatically recorded 30 seconds before activation — and then returning to the alley and recovering the same bag.

Obviously these videos raise deep questions about abuses in the Baltimore Police Department. They can also be counted as a success for body cameras, because without them the behavior of the police in these incidents would undoubtedly have never come to light. That said, these incidents also serve as a stark reminder of the shortcomings in body camera implementation that we’re seeing around the country.

These incidents show clear violations of the BPD’s activation policy, which requires that the cameras be turned on during all enforcement and investigatory activities—with a search for illegal drugs clearly qualifying as an “investigatory” activity—and which bars termination of that recording during an event until it has concluded, the officer leaves, or a supervisor directs that the recording cease (in which case the reason for ending the recording should be documented on the camera). The policy does not allow officers to turn their body cameras on and off as they did in these incidents.

So far, no action has been taken against the officers involved, with police officials suggesting that the officers may not have planted evidence, but merely restaged real discoveries of drugs for the camera that they had earlier failed to capture. As ACLU of Maryland Senior Staff Attorney David Rocah put it to me, that wouldn’t make what happened okay:

The best and most charitable thing the BPD can say about these videos is that they do not depict evidence being planted, but “merely” searches being recreated without disclosing that fact. But even that is both a violation of BPD policies and of at least three different criminal statutes— those against obstruction of justice, impairment of evidence, and making false statements to public officials concerning crime.

The fact that the officers have not yet been criminally or administratively charged is itself not just a travesty, but further evidence of the deep, systemic problems with accountability in this agency. Even if they don’t suspect the even more serious crime of planting evidence, why wouldn’t they charge the crimes that are right in front of all of our faces right now: manufacturing evidence they knew would be introduced in court to put someone in jail? And, immediately charge the officers with violating departmental policies?

If officers want to re-stage finding evidence, they have to be honest about it. Imagine that I as an ACLU lawyer have a case I’m bringing in Federal Court, in which an email from a government official to my client is relevant evidence, but my client deleted it. Do you think if I created a copy of that deleted email and presented it to the court without acknowledging my recreation, that I would have a job, and wouldn’t be charged with a crime? I sure don’t. So why is it okay for a cop to do that? On what planet is that okay?

As Rocah points out, it isn’t as if this issue of officers manipulating bodycam video was unknown. He said that the BPD’s activation policies were hammered out by a mayoral task force on which he served, and that “we thought specifically about this problem: how officer control over recording could be used to manipulate video records. That led to our recommendations for the clear, unambiguous, easy-to-follow camera activation policy that was adopted by the department and violated here.”

These incidents are a reminder of several things:

  • The reality of the kinds of police abuses that have led to support for body cameras in the first place.
  • The importance of having good policies with regards to body camera activation (which Baltimore actually does have).
  • The importance that police management actually enforce those policies. (I wrote about this recently in the context of the unrecorded police shooting of Justine Damond in Minneapolis.)
  • The wisdom of our recommendation that judges empower juries to devalue or even disregard a police officer’s testimony if, in the jury’s view, the officer unjustifiably failed to record an interaction with a civilian.” 
  • The reality that police officers assigned to wear body cameras will quickly begin to, as I have discussed, think about cameras that are on, play to the camera, and work to shape the photographic record, and how this may have important consequences for policing. This is not the first case in which officer reenactments for the video record have been claimed. 

As Rocah summed up the situation,

The existence of officer control over activation is a central reason for public mistrust of body camera programs, and addressing it through good policy and robust enforcement is absolutely critical to ensuring that these programs have public trust and legitimacy.  BPD’s failure to enforce the policy in these cases, in the face of flagrant violations that are right in front of our eyes, and which have already had significant public safety consequences, is an abject failure of leadership and accountability, and suggests that the public’s mistrust was well-founded.

 

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Anonymous

There is already a federal model on a similar topic that may be helpful: record 24/7 but the video footage is saved in an independent archive , not accessible to the police officers or police chiefs in real-time or for later viewing. Records are only accessible with a judicial warrant based on probable cause of abuses or crimes. This system never invades officer privacy, since an abuse or crime must occur to obtain a warrant for the video.

Jay

I like where you're going with this, but even if chain of custody is trustworthy, you then have to convince a judge to issue the warrant/subpoena, and I can think of a million ways that could go wrong.

Anonymous

Tragically there are too many sheep who still see a uniform, id tag and weaponry as a safe place.

LEO are not out uncovering crimes and helping the elderly cross the street.

They are quite simply looking for a higher positions of authority, greater income, excuse and encouragement to abuse and in my husband's case shoot in the back and kill.

While sex offenders are released and respected.

Police this area

Lesson is that cops with mental illnesses such as power problems, abuse problems, or a multitude of other mental deficiencies will abuse the system to their own gain.

The history of "police" in this country has evolved from a period when police meant the group of people that cleaned the streets and lit lamps, to the current period of machine gun carrying thugs ready to cap anyone the "boss" says to.

So sad that that police went from helping us to killing and imprisoning us. What are they so afraid of? What happened in their childhoods that makes them seek power over the weak and innocent.

And I've heard all the stories about the "good" cops... blah, blah, blah... we are actually in a period of history where those are the exception, not the norm.

Take the cops gun away and give him back his broom!

Anonymous

A much needed reform would be to legally mandate that police agencies document their activities as:
"Activities originating from legitimate probable cause of a past crime" - vs. - "Activities lacking legitimate probable cause of a past crime".

There are some rare instances where activities lacking probable cause are legitimate (ex: small groups of officers walking the streets of high-crime neighborhoods to establish a relationship with their community for community policing). It could also help police chiefs uncover massive weaknesses in fighting crime, if his agency were spending 90% of it's taxpayer dollars on non-probable cause activities (ex: trolling social media sites and penalizing legal First Amendment activities, etc).

Since many of these (unconstitutional) dragnet surveillance practices are legitimized in the so-called "War on a Tactic" since 9/11, it important to remember the wisdom of former FBI field agent Michael German. German specialized in domestic terrorism for over a decade and if these agencies are using the "War in a Tactic" to justify violating the Constitution, German had this advice: only focus on cases where there is strong probable cause or strong reasonable suspicion and stop using guilt-by-association. This is the expert advice from a terrorism expert to police agencies and state Fusion Centers!

Mario Errante

I used to respect the cops. After working as an airline pilot and flying with guys that were in law enforcement and listening to their stories and watching what's happening to our country, civil asset forfeiture, I have lost all respect for law enforcement. And they can't understand why people don't respect or like them. My God, they have created a police state. Wake the cluck up government.

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Jeff

Why aren't the cops charged with possession of the drugs. Its illegal for them to have them too. Passing a civil service exam and making it through the police academy doesn't mean you are above the law

Anonymous

Because who's going to arrest them?

The problem is that DAs have a monopoly on prosecution. Revive private prosecutions and you'll see these cops in the slammer within days.

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