By CHEYNA ROTH
Capital News Service
LANSING – Law enforcement officials and prosecutors are raising concerns about hefty consequences proposed for officers failing to record their activity in recently introduced body camera legislation.
The bill, written to increase accountability for police activity, would require judges and juries to accept the defendant’s version of events in cases where a recording is not made or is lost. The same standard would apply in civil cases or in complaints against police departments.
“That’s a pretty heavy burden that the legislature would put on law enforcement and the prosecuting attorneys in Michigan,” said Traverse City defense attorney Paul Jarboe, who supports the use of body cameras.
“I just think there is going to be too much opposition from law enforcement and the prosecuting attorneys association to put that heavy of a legal burden on law enforcement.”
Jarboe is right about the opposition.
This presumption is “a dangerous road to go down,” says Mark Reene, prosecuting attorney for Tuscola County and vice president of the Prosecuting Attorneys Association of Michigan.
“Sometimes a defendant’s versions of events can be limited only to what their imaginations might suggest,” Reene said. “To say that it would just be presumed that what they’re indicating is what transpired, due to the absence of a video or audio, would be of tremendous concern.”
Rep. Rose Mary Robinson, a Democrat from Detroit who introduced the bill, says it is meant to curb the abuses and excessive force of police that, as a former defense attorney, she has seen firsthand in Detroit.
“They have to be checked,” Robinson said of police departments and officers.
“It makes sense. If evidence is tampered with, or evidence is lost, it’s only fair. In a criminal case, the people must prove beyond a reasonable doubt.”
Reene says the fair way to conduct cases is not to automatically favor one side of the story, but to allow judges and juries to look at all the evidence and determine the credibility of each witness.
Requiring body camera recordings in every criminal case can also change the expectation of jurors, who might expect to see a 180-degree view of what happened as opposed to the one perspective body cameras provide, Reene said.
“We have one objective, and that is to be sure that we got it right,” Reene said. “We want to use every reasonable means available to us to gather the information and be able to make correct decisions. But it’s not going to solve every problem that we have.”
Robinson’s bill, which has been referred to the Criminal Justice Committee, would require officers to wear a body camera whenever they are on duty. Exceptions are allowed for personal matters, such as using the bathroom or having lunch.
Any recording that involves use of force, that leads to a detention or arrest, or that is relevant to a complaint against the officer or the police agency must be kept for three years.
But body cameras are electronic equipment, which can sometimes fail, said Sgt. Amy Dehner of the Michigan State Police.
“The more we come to rely on technology, obviously the higher risk that we have is that something at some point can malfunction,” Dehner said. “Whether that’s a radio in our car, the computer, all of these things that we carry; if you slip and fall you now are wearing something – my taser, I’ve broken that before. Can technology fail? Absolutely.”
Robinson is not sympathetic to concerns about equipment failure.
“The officer should check his equipment,” she said. “If the officer is mandated to wear a body camera and to make sure any interaction he has with another individual is supposed to be recorded, that’s his responsibility.”
The State Police have been testing about two dozen body cameras for a year, but these cameras are still “first generation,” Dehner said.
The current cameras have low resolution and battery life that is too short to last the 12-hour shifts of most officers. They also cannot record in the dark, which is a problem for officers on the night shift.
MSP and the Michigan Sheriffs’ Association agree that although body cameras are a good thing and reflect the direction that police work is going, statewide legislation probably is not the way to handle it. Instead, supervisors or administrators should be in charge of implementing policies that work for each community or department.
The devil is in the details, said Terry Jungel, executive director for the Michigan Sheriffs’ Association. The association supports the legislation in principle but does not believe it is feasible in its current form. At certain times, such as when speaking to a domestic violence or child abuse victim, or during an undercover operation, wearing a body cam and recording just isn’t feasible, Jungel said.
“In our profession you can’t cover us with a blanket,” he said. “You can’t say that what works for one officer will work for the other officer.”
Dashboard cameras in patrol vehicles are currently used by MSP and other police departments throughout Michigan, but they are regulated by department policy, not state legislation.
“When the lights come on in the car, that [dashboard camera] is triggered to come on,” Dehner said. “If by policy we found a department member that was purposefully manipulating that to violate policy, there would be disciplinary action.
“That’s where your departmental policy comes into place. To try and legislate that, I think, is really an overreach.”
By CHEYNA ROTH