A police body camera may seem like a great way to prevent police brutality. But the reality is that police body cameras are a law enforcement tool. Just like a taser or a gun, it has the ability to protect you or be used against you when you least expect it.
As NYPD recently began using police body cameras, and released their official NYPD police body camera policy, you need to get smart on your rights and precautions quickly. If you encounter an officer with a police body camera, it can be confusing to know how to respond. If you pass a police body camera and you’re not personally being stopped, carry on normally. Don’t act like you notice the body camera and don’t freeze or stop what you’re doing.
By the time you notice an officer with a “body worn camera” is passing you, it’s too late to shield your face from the camera. And let’s be honest, you wouldn’t want to do that anyway. It will only make you look like you’re worried and might cause an officer to stop you.
If cameras make you nervous, breathe deeply (through your nose) and count to 10 slowly in your head. Keep your head facing forward as though you don’t notice. Our natural reaction to being filmed without our permission is to turn away from the camera.
When it’s attached to a police officer and you act nervously, your behavior may be an excuse for police to profile you. An officer may be watching to see if you act nervously around the camera and could use it as an excuse to stop you for “suspicion.” Relax and don’t give a police officer reason to be suspicious.
Police body cameras are here to stay and will only grow in use. It’s in your best interest to have a strong understanding of how it can affect you.
What should you do if you’re stopped by an officer with a police body camera?
One of the most important things to keep in mind is that a police body camera isn’t recording the officer’s expression and body language. Body language can be used to intimidate, scare, or make you feel threatened.
The police body camera will not capture anything the police officer does to intimidate you. It will only capture your reaction. Try to maintain a “poker face” and not react emotionally to an officer’s actions when they’re wearing a police body camera. You may be reacting like anyone would, but from the camera’s point of view, you might look like a guilty criminal.
Another important thing you need to know is that police officers are allowed to review their body camera video before submitting their official reports. What does this mean for you? It’s pretty obvious that an officer It’s extra important that you be on your best behavior.
The kind of stop will dictate the ideal way to act when you are faced with a police body camera.
Vehicle
1. Stay calm as mentioned above.
2. If you have a video device, activate it.
3. Before the officer approaches, tell everyone in the vehicle to keep their hands still and do not speak while the officer is at the window.
4. Keep your window rolled up until the officer approaches. When they approach and make eye contact and tell you to roll down your window, roll it down only a few inches. All you need is enough for the officer to hear you. Do not roll down the window until the officer requests it.
5. Move slowly, and only when asked. Otherwise be still and never reach for anything before or during the traffic stop.
6. When the officer asks for your license and documents, tell the officer you’ll need to reach into your wallet and/or into your glove box. Wait for them to nod their approval. Then, move slowly and deliberately. Tell the officer every move you need to make. If your license is in your wallet and your documents are in the glove box, communicate your intention to get one at a time. Never reach into a wallet or glove box without communicating exactly what you are doing.
7. You do not have to hand the documents to the officer. You may hold the documents up to the window. This is entirely legal, but it may upset the officer and they may react in a way you do not like. A recent viral video by a civil rights professor is a good example of how this played out in Texas. The officer will most likely insist that you hand them over. Their intention is to prevent you from legally leaving the scene. As long as they have your documents, they know you won’t leave even when you may have the right to leave. Having your documents in their hands gives them more time to find reasons to ticket you. It gives them more control over you and the traffic stop.
8. You should decide well in advance if you’re going to comply with everything an officer demands or if you’re going to exert your civil rights. It can be a more smooth interaction if you cooperate, but it could also turn sour. If you exert your civil rights and the police officer reacts negatively, take accurate notes, video the interaction if you can, and be prepared to contact an attorney if wrongly ticketed or arrested.
9. Do not answer questions. When asked if you know why you were stopped, you can simply say “I’m choosing to not respond.” If you’re asked if you saw the officer, continue to say you’re choosing not to respond. You should not “plead the Fifth” because it can be brought up in a trial and used as a way to make you appear guilty. Just say you’re choosing not to respond.
10. Be on your best behavior. No arguing with police officers! Even if you feel the police stopped you for no reason, this is not the time to discuss it. Save that for court with an experienced attorney to stand up for you.
On the Street
1. Keep walking. Don’t look at the camera, but don’t turn away.
2. If you’re walking near the door of a restaurant or store, duck in casually, like you were already headed there. But don’t act suspicious once inside.
3. If you’re near your destination, keep walking until you arrive. Enter quickly and don’t respond to any knocks on the door. This is a good personal policy regardless of whether you’ve recently passed an officer with a police body camera or not.
4. If an officer with a police body camera approaches you and starts asking questions, ask the officer if you are being detained. If you are not, finish your business, walk away, and leave.
In a Restaurant or Place of Business
1. Carry on, business as usual. Do not walk in the path of the officer if you can help it.
2. Finish your business without drawing attention to yourself. If it’s a small store with a few customers, finish and leave. If it’s a busy store, stay away from the officer without rushing away or looking suspicious. Your goal is to blend in and not be singled out. Wait for the officer to leave.
3. In a restaurant, if an officer is wearing a police body camera and sits near you, finish your meal and leave. If they’re recording your conversation it could be picked up. We just don’t know yet how video will be used against citizens. I tend to believe recording someone who hasn’t given the officer reasonable suspicion of committing a crime shouldn’t be recorded.
At this point we don’t know if courts will give law enforcement a pass to record everyone and use the video to spark a warrant or arrest. It doesn’t seem constitutional, but courts make surprising decisions when it comes to protecting law enforcement desires. The Center for Constitutional Rights has filed in federal court to try to protect against police video cameras being used to spy. It’s demanding that the NYPD change its policy, removing a part that says officers can use cameras as evidence for criminal prosecution.
The Center also criticized the NYPD for having too much discretion in choosing when to start recording. They also criticized NYPD for not listening to the 25,000 residents who responded to a survey asking for their input about police body camera policy.
4. Bottom line, if an officer wearing a police body camera comes up to you in a store or restaurant, casually continue what you were doing until they begin talking to you. At that point, treat it like a traffic stop. Ask the officer if you are being detained. If you are not, walk away and leave.
What if you want to view police body camera footage?
Good luck! The New York City Television (NY1) requested police body camera video from the NYPD under the Freedom of Information Act (FOIL) and was quoted what a reasonable citizen would consider outrageous.
The NYPD wanted to charge $120/hour, claiming that was the cost to compensate the lowest-paid NYPD employee that could transfer and watch the video in real-time.
Based on NY1’s request, that would mean a $249,600 per year officer, assuming a 40-hour work week. NY1 appealed the decision, but was denied late in 2016.
What are the odds you’ll be arrested if you’re stopped?
As a defense attorney I’m prepared to defend clients when they accidentally say the wrong thing to a police officer. But in a perfect world they wouldn’t have been stopped or arrested in the first place.
If you want my official “defense attorney” thinking, I recommend staying silent through any questions and saying the four magic words: “I want my attorney.” You need to identify yourself, but the constitution says you are required to say nothing else.
Is this the best idea? Many people manage to get through a traffic stop or a stop-and-frisk without any trouble, despite answering questions. They answer when the officer asks where they’re headed or where they’re coming from. Other people are not so lucky.
If an officer wants to arrest you, there is little you can do. But “I want my attorney” makes them think twice. If you take this approach, keep repeating it. Don’t say you refuse to talk. Don’t plead the Fifth. Just say you want your attorney.
Another reason to only request your attorney and not plead the Fifth is that courts have ruled that juries can be told that a defendant pled the Fifth. It’s not supposed to count against you, but pleading the Fifth has become evidence against you. It’s not moral and it’s not right, but it happens. Don’t plead the Fifth. Ask for your attorney.
Always assume you’re being recorded, even though you may not be. Officers have the choice of when to turn on a police body camera. Assume they’ve already turned it on.
It’s even more important to know your rights and not incriminate yourself with casual conversation. You might assume an officer with the camera rolling may be on better behavior but they’re more likely trying to get you to do or say something that will justify their actions. Don’t give them ammunition.
Remember that as officers get more comfortable using their police body cameras during stops, in writing reports, and in testifying in court, the more savvy they will become in their use of the camera. What does that mean? They’re going to know what to say to get you to incriminate yourself. They’re going to know which positions and actions will make you look worse (or obscure what they’re doing to possibly “start something”).
An officer is going to know how to make you look nervous. They’re going to know the best time to start the body camera or turn it off. I’m not saying they’ll use it against you, but they will have the ability. And they can be perfecting it every day.
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