Body Cam Question: Who’s Playing Gotcha?

Hartford  — New Haven State Sen. Gary Winfield had some clean-up business to attend to in a law he authored enabling cops to wear body cameras. The state’s top prosecutor balked — and the two ended up sparring about whether cops deserve special rights to check their story before offering sworn statements.

The lively debate between Winfield and Chief State’s Attorney Kevin Kane occurred during a hearing Wednesday of the General Assembly’s Judiciary Committee.

It concerned a proposal Winfield is advancing this session to change part of the law passed in 2015 that paved the way for police departments to outfit officers with body cameras in a bid to build public trust in law enforcement, a response to the shootings of black civilians by cops across the country. New Haven, among other departments, has since fully outfitted its patrol force with the cameras.

A provision in that law, added at the time at the request of law enforcement, allows cops being investigated for potentially criminal use of force to review body camera video footage before making sworn statements. Citizens do not have such statutory protection.

Kane: Cops Feel Like Targets

Kane warned lawmakers in his testimony here Wednesday that eliminating that provision might erode police support for the two-year-old program.

“I think the police feel subject to being caught up in a game of gotcha,” he told members of the legislature’s Joint Judiciary Committee. ​“Police feel when an investigation is conducted like this they’re targets. They’re targets before there’s a reasonable basis.”

Winfield, a vice chair of the committee, challenged Kane. Who was playing gotcha, Winfield asked him. The cops or the public? Particularly when members of the public have no access to the investigatory process?

“Right at the outset, we get these cases, and as soon as these incidents happen people are asking that the police officer be arrested for murder,” Kane said. ​“Understandably people are upset; they’ve lost a family member, an incident has happened, other incidents have happened around the country and people are all of a sudden demanding murder. Well, who’s playing that game? Nobody who is involved in the system is playing that game. Emotions, I think, lead to very intense pressure.”

“No one in the system, meaning no one who is questioning a police officer, is playing that game of gotcha,” rejoined Winfield. ​“The public has a perspective which will not change, no matter what we do here. The way that you see this, it won’t change the public perception that the police officer has done something wrong and should be arrested.

“So doing this bill, or not doing this bill, what does the gotcha have to do with anything?” Winfield pressed.

Kane, who is against removing the language, noted that legislators originally inserted that language in the 2015 body camera bill in order to garner police support in order to pass it. He said the argument in favor of the provision is that cops are required to provide an accurate statement in their reports. It is often customary in other types of investigations to allow witnesses to review video footage to make sure their recollection of events is accurate, he claimed. But there are no such allowances in state statute for citizens to review video evidence in the event that they are facing a criminal investigation.

He said police officers who intentionally provide a false statement are subject to being fired and losing their certification.

“The reason it was put in there was to encourage police to go along with this effort by this legislature to equip everyone with body cameras,” he said. ​“This issue gets tied to the demands that we now get immediately after an incident to produce the video footage of it immediately at the beginning of an investigation.”

Winfield was clearly skeptical. He asked if police officers could be fired for simply being inaccurate or if they could be fired for lying.

“They can be fired for an intentional untruth,” Kane said. ​“It goes to the heart of an officer’s credibility.”

Winfield asked Kane if a police officer would truly be fired if it turns out he gave an inaccurate formal statement that contradicts what’s shown in a body camera video.

“A simple inaccurate statement wouldn’t,” rise to a firing, Kane acknowledged. ​“But what I’m saying is police officers maybe are afraid, are fearful of it even if it’s not an entirely reasonable fear.

“It’s a legitimate concern,” he added.

The Hamden-New Haven Line

Police officers and their unions are worried, too. Though they didn’t turn out in large numbers for Wednesday’s public hearing, individual police officers and the Police Officers Association of Connecticut submitted written testimony in opposition to striking the review language from the bill.

“This bill totally extinguishes a police officer’s right to review the recording from his or her own body camera, as well as recordings from any other body camera at the scene,” according to a statement from the association. ​“We cannot understand the motivation for this proposal except to take away police officers’ legal rights to defend themselves when a claim is made against the police officer when he/she was required by his/her duties to use physical force to apprehend a criminal or protect innocent victims.”

The association went on to say in its testimony, ​“This bill would have a negative impact on the willingness of police to wear cameras, something this legislature encouraged.” (Read more written testimony from Wednesday’s public hearing here.)

Hamden City Councilman Justin Farmer came to the hearing to offer a different perspective.

Farmer sits on the Public Safety Committee of the Hamden Council. In the three months he’s been in office problems on the street have increased mistrust between the community he represents and the police., he said He is currently awaiting an opportunity to review body camera footage not of alleged police brutality but of simple misconduct.

“There have been so many barriers to be able to see that and make sure that’s all in accordance,” he said. ​“When it comes to union contracts and having that language in there and to push back on transparency…it makes it hard for someone like me who has to be in a community that has these problems and to also have experienced some of these problems and then tell our constituents…that there’s full transparency but often times I myself know that’s not always the case.”

Farmer, who is a student at Southern Connecticut State University, took his spring break this week to come to Hartford. He told committee lawmakers that in four years he’s been stopped 30 times by police officers without having done anything wrong. (Farmer is African-American.) It can be a harrowing situation for him; he has Tourette syndrome, a neurological disorder characterized by involuntary, repetitive motor tics combined with a vocal tic. He wears noise-canceling headphones to help manage his symptoms.

“I don’t think anyone here is naive to the fact that certain individuals have interactions with law enforcement that are different,” he said. ​“I think it’s important that we make this first step in making sure that police are accountable for their actions and not able to be part of their own investigations. There’s many more steps that we have to do to build trust between community members and our police. But I believe that this is a very important first step.”

A Double Standard

State Rep. Steve Stafstrom, a Bridgeport Democrat and a Judiciary Committee vice chair, argued that the body camera law as it stands creates two systems when it comes to criminal investigations and prosecutions: one for regular citizens and one for police officers.

If members of the public were subject to potential criminal prosecution, do they have the right to see their arresting officer’s body camera footage? Stafstrom asked. Kane said the member of the public does not have that right. And investigators typically try not to release a video, except for limited reasons, before an investigation is complete.

“But in a potential use of force case the officer has that right,” Stafstrom asked.

“Yes,” Kane said.

“Are you OK with creating a separate set of standard for police officers?” Stafstrom pressed.

“Yes, I am now, because they can be ordered because of their job to give a report,” Kane said. And they have to give that report if commanded, and it must be accurate and truthful. In a criminal investigation of an officer, he said, the officer retains the right to give a statement or plead the fifth, just like any other citizen. But that report and the ​“fruits” of any investigation that result from that report can’t be used against the officer in a criminal investigation, he said.

Kane acknowledged that different treatment for police officers and ordinary citizens makes the use of body cameras ​“a knotty issue.”

Stafstrom pointed out that Kane had said earlier in his nearly 40 minutes of testimony that after an incident that results in a public question of an officer’s use of force, there are demands for the officer’s body camera footage to be released. He asked if Kane supports members of the public, the news media, and the victim’s family having access to the footage ahead of the investigation.

“I would oppose that,” he said. ​“I would want to maintain those until the investigation is complete to release them.”

“Your opinion is that the police officer should review the footage, and the public should not,” Strafstrom said.

Kane said yes. Gary Winfield asked why

“It is important for the investigation to go ahead to determine facts,” he said. ​“Say we get a case that’s an armed robbery in a convenience store, we normally would not want to release that because we’re trying to find the perpetrator, determine what is the nature of the crimes. Releasing the video invites judgments prematurely before the video is looked at in context.”

Whalley Tasing Lesson

Winfield said that Kane had suggested earlier in his testimony that the public was going to be inflamed when it came to matters involving the alleged misuse of force by a police officer if the video is released before an investigation. So why hold it back? he asked. Kane responded that releasing video footage before an investigation doesn’t help that the investigation and it has the potential to taint the prosecutorial process.

Should it be released after the investigation? Winfield asked. Kane said it should, subject to privacy rules and in accordance with the Freedom of Information Act.

New Haven’s police department recently had such a dilemma when an officer’s tasing of a suspect came into question after an incident in a Whalley Avenue convenience store. The department ultimately released footage from an officer’s body camera but only after an internal review determined that the officers had not mistreated a citizen. The officers involved were not disciplined but were sent for retraining. (Police said they were withholding the video at first to investigate whether some officers had released portions on social media without authorization.)

Winfield said after Kane’s questioning Wednesday that he and other members of the Black and Puerto Rican Caucus had never intended to allow police officers in the original bill to review body camera footage, or any other evidence in a criminal investigation before providing a statement.

“We just thought it would help them to fix any inconsistencies in their testimonies, and we didn’t want them to do that,” Winfield said. ​“We wanted to have their perception of what happened. Somehow the bill came out differently.”

He said there has been an effort underway to remove that language, particularly as more questions have arisen around police use of force in the state, one of the most recent times being the fatal shooting of 15-year-old Jayson Negron by Bridgeport Police Officer James Boulay last May. Waterbury State’s Attorney Maureen Platt cleared Boulay of criminal charges at the end of January, sparking peaceful protests. Though video of that shooting contradicted Boulay’s initial report, the state’s attorney found he was justified in his use of force. (Read Platt’s report here.)

“I think it’s important that we fix this,” Winfield said of removing the review language. ​“Look, I don’t think any of us are after police. But I think we want to know what that police officer thought, felt. As I pointed out to Kevin Kane, there’s a difference between being inaccurate and lying. There is a vast difference and the intention part matters. That’s why I also took pains to make sure he pointed out that he hasn’t seen any police officers be disciplined because of that.” 

Winfield also argued that in Kane’s concern about inciting and inflaming the public by releasing body camera footage before an investigation, he’s also missing an opportunity.

“The thing is that they might be further inflamed because there is something to be inflamed about,” he said. ​“But if the video actually shows something different it could tamp down those passions.”

Watch the Joint Judiciary Committee public hearing by clicking the video below.

The 2018 Agenda

Bill #	Status	Summary	Sponsors
HB 5001	In Committee Died on the Floor	To impose a fee on transactions involving virtual currency.	Pat Dillon
HB 5031 SB 4	In Committee Committee Approved Sent to the Floor Passed Gov. Signed	To allow students to have equal access to institutional financial aid.	Higher Education and Employment Advancement Committee
HB 5082	In Committee Committee Approved Died on the Floor	To provide state funds to assist hurricane victims from Puerto Rico and the U.S. Virgin Islands who are living in Connecticut.	Juan Candelaria
HB 5126	In Committee Died on the Floor	To increase funding to boards of education and family resource centers that provide assistance to students and families from Puerto Rico.	Juan Candelaria
HB 5112	In Committee Sent to the Floor Died on the Floor	To permit the retail sale of marijuana and tax such sale to raise revenue for the General Fund and to fund substance abuse treatment, prevention, education and awareness programs.	Juan R. Candelaria, Angel Arce, Josh Elliott, Steven J. Stafstrom, Jeff Currey, Susan M. Johnson, Chris Soto, Patricia A. Dillon, Roland J. Lemar, James M. Albis, Christopher Rosario, Kim Rose, Robyn A. Porter, Edwin Vargas, Matthew Lesser, Gregory Haddad, Joshua Malik Hall, Ezequiel Santiago, Diana S. Urban, Toni E. Walker, Robert Sanchez, Alphonse Paolillo
SB 1	In Committee Died on the Floor	To expand the sick leave program to provide earned family and medical leave to certain individuals employed in this state.	Martin M. Looney, Bob Duff, Timothy D. Larson, Steve Cassano, Beth Bye, Terry B. Gerratana, Gary A. Winfield, Ted Kennedy, Catherine A. Osten, Marilyn V. Moore, Edwin A. Gomes, Mae Flexer
SB 62	In Committee Died on the Floor	To provide tuition-free community college for Connecticut residents.	Martin M. Looney
HB 5182	In Committee Committee Approved Sent to the Floor Died on the Floor	To require building officials in certain municipalities to establish and assess a fee for the commencement of certain work without a necessary permit.	Planning and Development Committee
HB 5210	In Committee Committee Approved Sent to the Floor Passed	To (1) mandate insurance coverage of essential health benefits, (2) expand mandated health benefits for women, children and adolescents, and (3) expand mandated contraception benefits.	Insurance and Real Estate Committee
HB 5084	In Committee Died on the Floor	To encourage the recycling of nip bottles that otherwise frequently litter urban areas.	Roland J. Lemar and Juan R. Candelaria
HB 5350 HB 5537	In Committee Committee Denied Sent to the Floor Died on the Floor	To create a pilot program for shared solar facilities at municipal airports. The bill also would delete the provision that dictates the length of Tweed Airport’s runway.	Energy and Technology Committee
HB 5475	In Committee Committee Approved Sent to the Floor Passed	To amend statutory provisions concerning a police officer’s viewing of a recording from body-worn recording equipment under certain circumstances.	Judiciary Committee
HB 5515	In Committee Committee Approved Sent to the Floor Passed	To permit a zoning commission to regulate the brightness and illumination of advertising signs and billboards.	Judiciary Committee
HB 5540	In Committee Committee Approved Sent to the Floor Died on the Floor	To ban guns without serial numbers and regulate those which are sold in a form requiring the purchaser to finish assembly or that are homemade and to permit local authorities to interview immediate family members as part of a determination of an applicant’s suitability.	Judiciary Committee
HB 5542	In Committee Committee Approved Sent to the Floor Passed	To ban the sale or transfer, possession, manufacturing or use of bump stocks or other accessories to increase the rate of fire of a firearm.	Judiciary Committee