Shooting in High Definition: How

Having Tough Policies in Place Makes

the Use of Body Cameras in Law
Enforcement Comport with the Fourth
Amendment

RICHARD SHILLER*

ABSTRACT

Police are often in tense and rapidly evolving circumstances that force
them to make split-second decisions. There are justifiable instances where
an officer is called upon to use force to detain a suspect; but just the same,
there are instances where the use of force is unjustified. The
implementation of body cameras provides an unbiased look into what
actually happens during a confrontation. Outfitting law enforcement with
body cameras has substantial benefitsdecrease in excessive force by
officers and citizens, an increased amount of transparency and
accountability, and strong probative evidence in courtbut body cameras
also come with serious privacy implications. The Fourth Amendment has
been interpreted to protect an individual from unreasonable government
intrusion, creating areas where individuals have reasonable expectations of
privacy. Body cameras have the ability to memorialize areas where
individuals have the highest expectation of privacy. However, state
legislatures and police departments are creating policies on body cameras
that hold law enforcement accountable while protecting the privacy
interests of individuals. Policies such as receiving consent prior to
recording, limiting recording of protected First Amendment activities,
forbidding the disclosure of video to the public unless there is consent or a

* Candidate for Juris Doctor, New England Law | Boston (2017). B.A. History, University
of Central Florida (2012). I would like to thank my parents, sisters, and brothers for their
unwavering love and support, for without them I would not be where I am today. I would
also like to thank the men and women in uniform who unselfishly serve and protect this great
nation of ours.

187
188 New England Law Review Vol. 51|1

court proceeding, and requiring a warrant before an officer can re-search

a house, all strengthen police accountability and practices while respecting
the privacy rights of individuals.

INTRODUCTION

I
f a picture is worth a thousand words, then a video is worth a
thousand pictures, and untold lives.1 On May 19, 2015, Senator
Tim Scott of South Carolina testified before the Senate Judiciary
Subcommittee on Crime and Terrorism in a hearing to bring national
attention to the effect that equipping law enforcement with body cameras
could have on keeping both the community and its officers safe.2 That
hearing was held in reaction to Walter Scott, a man from North Charleston,
South Carolina, who was shot eight times in the back by an officer.3 The
officer claimed that Scott stole his taser and ran away, at which point the
officer fired eight shots into Scotts back.4 The officers account was taken
as true, until a bystanders cell phone video was released, calling the
officers account into question. In the end, the officer was charged with
murder.5 The officer was not wearing a body camera.6
Many national stories involving police shootings have called into
question law enforcement policies, and called for greater law enforcement
accountability.7 An increasingly popular solution to deter excessive force
used by the police, and increase the level of cooperation by those stopped
by the police, is to require the police to wear body cameras.8 In jurisdictions

1 Police Body Cameras, C-SPAN (May 19, 2015), http://www.c-span.org/video/?326097-

1/hearing-police-body-cameras [https://perma.cc/CJQ6-MZMY].
2 Id.
3 See Catherine E. Shoichet & Mayra Cuevas, Walter Scott Shooting Case: Court Documents
Reveal New Details, CNN (Sept. 10, 2015, 12:10 AM), http://www.cnn.com/2015/09/08/us/south-
carolina-walter-scott-shooting-michael-slager/ [https://perma.cc/XD3J-UYYM].
4 See Mark Berman et al., South Carolina Police Officer Charged with Murder After Shooting

Man During Traffic Stop, WASH. POST (Apr. 7, 2015), https://www.washingtonpost.com/

news/post-nation/wp/2015/04/07/south-carolina-police-officer-will-be-charged-with-murder-
after-shooting/ [https://perma.cc/47YA-JL3M].
5 Id.
6 See id.
7 See Deborah Jacobs, Police Accountability After Ferguson, HUFFINGTON POST (Aug. 21, 2014,

11:50 AM), http://www.huffingtonpost.com/deborah-jacobs/police-accountability-after-

ferguson_b_5696806.html [https://perma.cc/T96Q-KFQS].
8 See generally Stav Ziv, Study Finds Body Cameras Decrease Polices Use of Force, NEWSWEEK

(Dec. 28, 2014, 2:31 PM), http://www.newsweek.com/amidst-debate-study-finds-body-

cameras-decrease-polices-use-force-295315 [https://perma.cc/DDK9-64ZT] (identifying a study
that finds when police wear body cameras, the number of excessive force complaints decrease
by as much as 50%).
2017 Shooting in High Definition 189

that have instituted the practice of requiring police to wear body cameras,
they have found that wearing body cameras is a strong deterrent to
excessive force.9 Further, when police wear body cameras, the amount of
excessive force complaints brought against the police decreases.10 Most
jurisdictions do not require their officers to wear body cameras, leading to
potential opposing accounts of the person alleging excessive force and the
officer accused of the wrongdoing.11
While there are strong reasons to require law enforcement to wear
body cameras, there are equally strong reasons why body cameras should
not be usedbecause doing so could unconstitutionally interfere with the
privacy rights of individuals who encounter an officer.12 However, when
proper policies are placed on the officersknowing when to turn the
camera on, gaining consent to record an individual or an individuals
private residence, and effectively retaining the videos, among othersthe
privacy rights of an individual would not be violated.13
Part I of this Note describes body cameras, the implementation of body
cameras within police forces, and analogizes the push for body cameras to
that of dashboard cameras. Part I also analyzes excessive force claims, how
the Fourth Amendment protects each person from unreasonable searches
and seizures, and the qualified immunity defense that a law enforcement
officer can assert against a claim of unreasonable force. Part II considers the
privacy concerns arising from nationwide body camera implementation,
and argues that sound policies can protect the privacy rights of individuals
while strengthening police accountability. Part III contemplates the
concerns of implementing body cameras, including the cost of equipment,
data retention, officer concerns, and whether an officer should be able to
view the video prior to writing a report.

9 See Kami Chavis Simmons, Body-Mounted Police Cameras: A Primer on Police Accountability

vs. Privacy, 58 HOW. L.J. 881, 885 (2015).

10 U.S. DEPT JUST., COMMUNITY ORIENTED POLICING SERVICES, IMPLEMENTING A BODY-
WORN CAMERA PROGRAM, RECOMMENDATIONS AND LESSONS LEARNED 5 (2014),
http://www.justice.gov/iso/opa/resources/472014912134715246869.pdf
[https://perma.cc/AS3M-5MS8].
11 Simmons, supra note 9, at 885.
12 See generally Zachary R. Blaes, Note, Cop-arrazi: Why Body Cameras Are Incompatible With
the Fourth Amendment, 50 NEW. ENG. L. REV. ON REMAND 15 (2016) (arguing that the societal
benefit of requiring officers to wear body cameras is outweighed by the potential of
infringement upon individual privacy).
13 See infra Part II.
190 New England Law Review Vol. 51|1

I. Background

A. Body Cameras

There is a rapid push to implement body cameras to every police

department in the country.14 Body cameras are compact devices that can
create both audio and visual records of police officers actions,
observations, and interactions with the public.15 Body cameras can be
secured onto an officers uniform or worn as a headset.16 While each brand
of body camera may operate in a slightly different manner, most cameras
can be turned on or off with the click of a button.17 Due to the vast amount
of data that is accumulated from the recordings, the cameras are not
always powered on.18 The traditional method of use is to have the officer
turn on the camera when it is necessary to do so (i.e. when an officer is
engaging with a suspect), and then turn the camera off when permissible to
do so (i.e. when an officer is no longer in contact with a suspect).19 Some
police departments opt to have their officers wear cameras that operate
similar to little black boxes, which live stream the feedback to the
precinct, effectively taking the decision to turn the camera on or off out of
the hands of the patrol officers.20 Officers generally have the discretion to
turn the camera on or off, however, on a few occasions this discretion has
led to serious police brutality.21

14 See Matt Stroud, The Big Problem With Police Body Cameras, BLOOMBERG BUS. (Jan. 15, 2015,

8:22 AM), http://www.bloomberg.com/news/articles/2015-01-15/police-body-camera-policies-

wont-work-if-cops-dont-turn-cameras-on [https://perma.cc/V25L-JNG4].
15 See Dru S. Letourneay, Comment, Police Body Cameras: Implementation with Caution,

Forethought, and Policy, 50 U. RICH. L. REV. 439, 442 (2015); Devin Coldewey, Cop Watch: Who
Benefits When Law Enforcement Gets Body Cams?, NBC NEWS (Aug. 17, 2013, 11:08 AM),
http://www.nbcnews.com/tech/tech-news/cop-watch-who-benefits-when-law-enforcement-
gets-body-cams-f6C10911746 [https://perma.cc/DA7Y-YBZT].
16 Jay Stanley, Police Body-Mounted Cameras: With Right Policies In Place, a Win For All, ACLU

(Mar. 2015), https://www.aclu.org/police-body-mounted-cameras-right-policies-place-win-all

[https://perma.cc/Q6CK-VB5R].
17 See generally Shirley Li, The Big Picture: How Do Police Body Cameras Work?, THE WIRE

(Aug 25, 2014, 9:24 AM), http://www.thewire.com/national/2014/08/how-do-police-body-

camera-work/378940/ [https://perma.cc/ZLK4-XGPX] (reporting that the city of Oakland has
nearly five years of data, or 190 terabytes of space).
18 See id.

19 See id.; Keith Wagstaff, Digital Partner: Heres How Police Body Cameras Work, NBC (Dec. 2,

2014), http://www.nbcnews.com/tech/innovation/digital-partner-heres-how-police-body-
cameras-work-n259211 [https://perma.cc/US2G-ZPAJ].
20
See Li, supra note 17.
21
See generally John Vibes, Cops Caught on Body Cam Saying Turn It Off Before Stomping on
Handcuffed Mans Face, FREETHOUGHTPROJECT (Sept. 4, 2015), http://thefreethoughtproject.com/
cops-turn-body-cams-stomp-suspects-neck/ [https://perma.cc/D64D-WJXY] (reporting that
2017 Shooting in High Definition 191

Once the officer records an interaction, the footage must be kept at a

secure location to use as evidence in any future criminal or civil
proceedings.22 Police departments can either choose to store the recordings
on their own servers, or in the cloud operated by a third party.23 Storage
sites, such as Evidence.com, allow for easy access to the recordings, and
provide a simple way for lawyers on the given case to receive the
evidence.24 Different jurisdictions and departments have laws that dictate
how long the police are required to retain the recordings before deleting
them.25
Body cameras are not new technology, and although they have been
around for some time, police departments have been reluctant to outfit
officers with them.26 A recent 2013 study conducted by the Police Executive
Research Forum (PERF) sent out 500 surveys to various police
departments, 254 of which responded.27 Only sixty-three agencies reported
the use of body cameras.28 The push to require the police to wear body
cameras reached the highest level of government, when in 2014, President
Obama announced that $75 million would be available to local law
enforcement to equip and train officers to use body cameras.29

officers were caught whispering to one another to turn off their body cameras, and then
proceeded to stomp on the suspects neck); Josie Wales, Officer Turns Off Body Cam and Screams
Whos The Man as He Beats Defenseless Homeless Man, FREETHOUGHTPROJECT (Apr. 27, 2015),
http://thefreethoughtproject.com/report-reveals-officer-turned-cadet-screamed-whos-man-
beating-homeless-man-turned-body-cam/ [https://perma.cc/J3L6-G8BY] (reporting that an
officer was caught turning his camera off, then beating up a homeless man).
22 See Wagstaff, supra note 19.
23 See id.
24 See Li, supra note 17.

25 See, e.g., Records Management Advice, WASH. SEC. OF STATE (Dec. 2015), http://www.sos.wa.

gov/_assets/archives/RecordsManagement/Advice-Sheet-How-Long-Do-Police-Body-Cam-
Recordings-Need-to-Be-Kept-August-2016.pdf [https://perma.cc/KVE5-G8K6] (retaining
recordings where no incidents were identified for ninety days, and in instances where there
was an incident, the recordings are kept until all matters are resolved and the appeals process
has been exhausted); infra Part IIIB.
26 See U.S. DEPT JUST., supra note 10, at 2 (noting that in a survey of 254 police departments,
only sixty three required their officers to wear body cameras).
27 Id.
28 Id.
29 See Nolan Feeney, Obama Requests Funds for Police Body Cameras to Address Simmering

Distrust After Ferguson, TIME (Dec. 1, 2014), http://time.com/3613058/obama-ferguson-police-

body-cameras-funding/ [https://perma.cc/3NVR-H2ES]; David Jackson, Obama Team Will Fund
Policy Body Camera Project, USA TODAY (May 1, 2015), http://www.usatoday.com/
story/news/nation/2015/05/01/obama-police-body-cameras-josh-earnest-baltimore/26696517/
[https://perma.cc/Q42M-UJ57].
192 New England Law Review Vol. 51|1

Similar to the present day push for universal body cameras, there was
a push in the 1990s to outfit police cruisers with dashboard cameras to hold
law enforcement more accountable during stops.30 Dashboard cameras are
similar to police body cameras, as both record interactions between police
and citizens, and move with an officer over the course of their shift instead
of focusing on a particular area or individual.31 Proponents of body
cameras hope that their implementation can lead to the same outcome
dashboard cameras have; namely that dashboard cameras have positively
impacted officer safety, increased the professionalism and performance of
officers, made law enforcement more transparent and accountable, and
decreased the number of complaints against police while improving
community relations.32 However, unlike how dashboard cameras are
attached to the car, and infrequently, if ever, record inside the home of a
person, body cameras travel with the officer and have the ability to record
the inner sanctions of a persons home.33

B. Excessive Force

Police are often forced to make split-second judgmentsin

circumstances that are tense, uncertain, and rapidly evolvingabout the
amount of force that is necessary in a particular situation.34 Excessive force
is the application of an amount and/or frequency of force greater than that
required to compel compliance from a willing or unwilling subject.35
However, when an officer makes a proper arrest, he can use some degree
of physical force or threat to assist in that arrest.36 Congress allowed for a
remedy, codified as 42 U.S.C. 1983, for excessive force claims based on
the deprivation of a victims constitutional rights.37 The Supreme Court has

30 See generally Lonnie J. Westphal, The In-Car Camera: Value and Impact, POLICEONE (Nov. 9,

2004), https://www.policeone.com/police-products/police-technology/articles/93475-The-in-
car-camera-Value-and-impact/ [https://perma.cc/94NS-UPZC] (noting that dashboard cameras
were instituted in response to claims of racial profiling during traffic stops, and to regain the
publics confidence in the police).
31 Kelly Freund, Note, When Cameras are Rolling: Privacy Implications of Body-Mounted

Cameras on Police, 49 COLUM. J.L. & SOC. PROBS. 91, 97 (2015).

32 See Westphal, supra note 30.

33 See Freund, supra note 31.

34 Graham v. Connor, 490 U.S. 386, 397 (1989).

35 INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, Police Use of Force in America 1 (2001)

http://www.theiacp.org/Portals/0/pdfs/Publications/2001useofforce.pdf
[https://perma.cc/NPG9-TAYD].
36 Connor, 490 U.S. at 396.
37 Douglas B. Mckechnie, Dont Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-
Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a
Constitutional or Practical Challenge, 60 U. KAN. L. REV. 139, 141 (2011).
2017 Shooting in High Definition 193

ruled that all 1983 claims involving a law enforcement officers use of
excessive force in the course of an arrest, investigatory stop, or other
seizure are analyzed under the Fourth Amendment.38

1. Unreasonable Use of Force Claims Under the Fourth

Amendment

Whether police officers have violated the Fourth Amendment during

an investigatory stop or arrest depends on the resolution of two issues.39
The first question to be analyzed is whether in using force, did officials
seize the suspect within the meaning of the Fourth Amendment.40 If the
first question is answered affirmatively, the next issue is whether the force
used was objectively unreasonable.41 If the officer both seized the suspect
and the force used was objectively unreasonable, then the suspect has
established a Fourth Amendment violation and is able to bring a 1983
claim.42
A seizure occurs when the officer, by means of physical force or show
of authority, has in some way restrained the liberty of a citizen,43 leading a
reasonable person [to] believe[] that he was not free to leave and the
person in fact submitted to that assertion of authority.44 The reviewing
courts evaluate the excessive force claim based on the situation
surrounding the officer at the moment the event occurred, not in
hindsight.45
The Supreme Court proclaimed that excessive force claims under
1983 must begin with identification of the specific constitutional right
allegedly violated by the police.46 When analyzing the constitutionality of
the challenged application of force, it is important to not only look at when
the seizure was made, but also how the seizure was made.47 In determining
whether the force used in a particular seizure was reasonable, the Fourth

38 Connor, 490 U.S. at 395.

39 See id. at 39596.
40 See id.
41 See id.
42 Martin A. Schwartz & Kathryn R. Urbonya, Section 1983 Litigation, FED. JUD. CTR. 47

(2008), http://www.fjc.gov/public/pdf.nsf/lookup/sec19832.pdf/$file/sec19832.pdf [https://

perma.cc/6BF3-RHC8].
43 Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968).
44 California v. Hodari, 499 U.S. 621, 628 (1991).
45 Connor, 490 U.S. at 396 (The reasonableness of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.).
46 Id. at 392.
47 Id. at 395.
194 New England Law Review Vol. 51|1

Amendment requires a careful balancing of the nature and quality of the

intrusion on the individuals Fourth Amendment interests against the
countervailing governmental interests at stake.48 The reasonableness test
under the Fourth Amendment does not have a precise definition, but its
proper application requires careful attention to the facts and circumstances
of each particular case.49 Circumstances such as whether there is an
immediate threat to the officer, or whether the suspect is attempting to flee
or fight, as well as the severity of the suspected crime, are all relevant to
determine reasonableness of a stop.50

2. Qualified Immunity

Qualified immunity shields government officials from liability for

civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights.51 Qualified immunity balances two
important intereststhe need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties
reasonably.52 Public officials are liable for transgressing bright lines, not for
guessing in gray areas.53
Qualified immunity is both a defense to liability and a limited
entitlement not to stand trial or face the other burdens of litigation.54 A
good faith or qualified immunity defense has both an objective and
subjective component.55 The objective element involves a presumptive
knowledge of and respect for basic, unquestioned constitutional rights.56
The subjective component refers to the permissible intentions of the
governmental official.57 Taken together, a qualified or good faith immunity
defense is defeated if an official knew or reasonably should have known that
the action the officer took within their official responsibility would violate
the constitutional rights of the plaintiff, or if [the officer] took the action

48 Id. at 396.
49 Id.
50 Id.

51 Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).
52 Pearson v. Callahan, 555 U.S. 223, 231 (2009).
53 Schwartz & Urbonya, supra note 42, at 144.
54 Iqbal, 556 U.S. at 672 (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
55 See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).

56 Id. (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975)).

57 See id.
2017 Shooting in High Definition 195

with the malicious intention to cause a deprivation of constitutional rights or

other injury.58
An official sued under 1983 is entitled to qualified immunity unless it
is shown that the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct.59 The
clearly established law that the official must have violated for a qualified
immunity defense to fail must be federal law, as the clearly established
state law is generally irrelevant.60 An officer is said to have violated clearly
established law if the action the officer took has previously been held to be
unlawful.61 If the action currently before the court fairly resembles a prior
action deemed unlawful, it is said that the federal law has been clearly
established.62 Footage from body cameras can significantly help determine
whether an officer is entitled to qualified immunity by showing the court a
video of what happened, rather than relying solely on the testimony of an
officer and an accuser.63

II. Privacy Concerns

Proponents of body cameras generally focus on the accountability and

transparency of law enforcement, while the main opponents focus on the
privacy rights of individuals who either are, or could be recorded by a
police officer.64 With advancements in technology and evolving
expectations of privacy, it is critical that law enforcement agencies carefully
consider how body cameras affect the publics privacy rights.65 This is
especially true when courts have not yet provided guidance on these
issues.66 Policies could be put in place that could protect the individual
privacy rights of citizens who encounter police officers equipped with
body cameras.67

58Id. (quoting Wood, 420 U.S. at 322) (emphasis added).

5942 U.S.C. 1983 (2012); Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); see Schwartz &
Urbonya, supra note 42, at 143.
60 See Schwartz & Urbonya, supra note 42, at 143; see Davis v. Scherer, 468 U.S. 183, 191

(1984).
61 See Anderson v. Creighton, 483 U.S. 635, 640 (1987).
62 See id.

63 See Marc Jonathan Blitz, Police Body-Worn Cameras: Evidentiary Benefits and Privacy Threats,

AM. CONST. SOCY. 5 (May 2015), https://www.acslaw.org/sites/default/files/Blitz_-_On-

Body_Cameras_-_Issue_Brief.pdf [https://perma.cc/N3MK-K4ZB].
64 See generally Stanley, supra note 16 (arguing that it is vital that any deployment of body
cameras be accompanied by good privacy policies so that the benefits of the technology are
not outweighed by invasions of privacy).
65 See U.S. DEPT JUST., supra note 10, at 11.
66 See id.
67 See Stanley, supra note 16.
196 New England Law Review Vol. 51|1

A. Individual Privacy Rights

Individual privacy rights are not directly mentioned in the

Constitution, but have been found to be an unenumerated right guaranteed
by the Bill of Rights and the Due Process Clause of the Fourteenth
Amendment.68 The Fourth Amendment, however, has been the main tool
the Supreme Court has used to determine whetherand how muchof an
individuals privacy is protected from government intrusion.69 The Fourth
Amendment pronounces that people have a right to be free from
unreasonable searches and seizures.70 The Supreme Court has ruled that,
[w]hat a person seeks to preserve as private . . . may be constitutionally
protected, but, conversely, what a person chooses to knowingly expose
to the public, even in his own home or office, is not a subject of Fourth
Amendment protection.71
When determining whether the government has wrongly infringed
upon a persons privacy rights, courts have used a two part test: first,
whether an individual has exhibited an actual expectation of privacy; and
second, whether society is prepared to recognize that expectation of
privacy as reasonable.72 The Supreme Court has used this test to conclude
that individuals do not have a reasonable expectation of privacy of
contraband left in plain view by the police,73 in information voluntarily
transmitted to third parties,74 and nonintrusive observations of private
places from public areas.75 Contrarily, the Supreme Court ruled t11155
hat individuals do have a reasonable expectation of privacy of the
intimate details of their house,76 the contents of their smart phones,77 and in
being free from constant GPS monitoring by the government.78

68 Compare Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (finding that within the First,

Third, Fourth, Fifth, and Ninth Amendments, a zone of privacy is created), with Roe v.
Wade, 410 U.S. 113, 153 (1973) (finding that within the Due Process Clause of the Fourteenth
Amendment exists the right of privacy and personal liberty).
69See generally Katz v. United States, 389 U.S. 347, 350 (1967) ([T]he Fourth Amendment
cannot be translated into a general constitutional right to privacy . . . [The Fourth]
Amendment protects individual privacy against certain kinds of governmental intrusion . . .).
70 U.S. CONST. amend. IV.
71 Katz, 389 U.S. at 351 (emphasis added).
72 Id. at 361 (Harlan, J., concurring).

73 See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).

74 See Smith v. Maryland, 442 U.S. 735, 742 (1979).

75 See California v. Ciraolo, 476 U.S. 207, 214 (1986).

76 See Kyllo v. United States, 533 U.S. 27, 40 (2001).

77 See California v. Riley, 134 S. Ct. 2473, 249495 (2014).

78 See United States v. Jones, 132 S. Ct. 945, 964 (2012) (Alito, J., concurring).
2017 Shooting in High Definition 197

1. Police Recording in Private Areas

The strongest protection under Fourth Amendment is in a persons

home.79 The core of the Fourth Amendment includes the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.80 Reasonable instances, such as consensual
encounters or domestic disputes when an officer is called into the living
rooms or bedrooms of a persons private home, would not violate the
Fourth Amendment.81
States and cities, as well as privacy rights groups, have created criteria
for how an officer equipped with a body camera should act when entering
into areas where individuals have heightened expectations of privacy.82
The Brennan Center for Justice created a study to compile regulations
passed by major U.S. cities that deal with whether police can record in
areas where there are expectations of privacy.83 For example, in Orlando,
Florida, if an officer is in a Fourth Amendment protected area, and unless
the officer has reasonable suspicion that evidence of a crime is present, the
officer must turn off the camera if asked to do so by the person who has
authority over the area.84 The American Civil Liberties Union (ACLU) and
the International Association of Chiefs of Police believe that barring exigent
circumstances or when the officer is executing a warrant, the officer should
inform the occupant that he has a camera, and if the occupant declines to
be recorded, the officer must turn off the camera.85 However, there is no
uniform policy between states or local law enforcement within each state.86

79 See Florida v. Jardines, 135 S. Ct. 1409, 1414 (2013).

80 Id. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) (emphasis
added).
81 See Stanley, supra note 16, at 3; Matt Pearce, Growing Use of Police Body Cameras Raises

Privacy Concerns, L.A. TIMES (Sept. 27, 2014, 6:00 AM), http://www.latimes.com/nation/la-na-
body-cameras-20140927-story.html [https://perma.cc/2XWM-EKHA].
82 See generally BRENNAN CTR. FOR JUST., POLICE BODY CAMERAS POLICIES: PRIVACY AND

FIRST AMENDMENT PROTECTIONS 19 (2015), https://www.brennancenter.org/sites/default/

files/Privacy_and_First_Amendment_Protections_Chart.pdf [https://perma.cc/WH2J-W4C4]
(identifying the policies of various cities who have instituted body cameras and the model
policies of the ACLU, the International Association of Chiefs of Police, and the Police
Executive Research Forum).
83 See generally id. (noting that a person has reasonable expectations of privacy in restrooms,

dressing rooms, medical centers, and anywhere else that the Fourth Amendment reaches,
unless it advances a criminal investigation).
84 Id. at 5.
85 Id. at 9.

86 See, e.g., id. at 7 (noting that Tampa, Florida, unlike Orlando, places zero limits on their

officers when recording private situations).

198 New England Law Review Vol. 51|1

Since the discussion surrounding police cameras is relatively new,

courts have not had the occasion to determine the constitutionality of
police using body cameras in private areas.87 Courts have determined that
a hidden microphone or camera placed on a person who had the consent of
the occupant to enter the house, is not unconstitutional.88 In the case of
police recordings, the consent of the homeowner must be voluntarily given
and not coerced.89

2. Police Recording in Public Areas

While in public, individuals generally do not have an expectation of

privacy with the understanding that a person voluntarily conveys
information to anyone interested in looking.90 Neither audio nor video
recordings automatically violate the Fourth Amendment when such
recordings take place in a public area, because no expectation of privacy
exists.91 The Supreme Court has ruled, however, that the constant
surveillance of a suspect by attaching a GPS monitor to their truck, even
though the truck was on the public roads, constituted an illegal search.92
On the other hand, body-worn cameras do not allow the government to
generate a comprehensive record of a suspects movement.93 The records
kept show how the officer behaved, and, to the extent that these records
occasionally and briefly sweep in video footage of citizens, this is a
necessary incident to monitoring government officials.94
In many cities, police officers spend their shifts walking the streets and
interacting with the public.95 Policies already in place in some cities require

87 See Pearce, supra note 81.

88 See, e.g., United States v. White, 401 U.S. 745, 75054 (1971) (holding that where a radio
transmitter was concealed on an informant, and recorded incriminating evidence by the
defendant that was overheard by the police without a warrant, there was no violation of the
defendants Fourth Amendment right to be secure against unreasonable searches and
seizures); United States v. Davis, 326 F.3d 361, 362 (2d Cir. 2003) (holding that an informant's
secret videotaping of a drug deal in defendant's home, into which defendant invited the
informant, did not violate defendant's Fourth Amendment right to be free from unreasonable
searches and seizures).
89 See Schneckloth v. Bustamonte, 412 U.S. 218, 24849 (1973); see also State v. Lumbus, No.

102273, 2016 WL 542601, at *13 (Ohio Ct. App. Feb. 4, 2016) (holding that under the totality of
the circumstances, the consent of the occupant, although recorded on the police officers body
camera, was coercive).
90 Blaes, supra note 12, at 29.
91 United States v. Wells, 739 F.3d 511, 518 (10th Cir. 2014).
92 See United States v. Jones, 132 U.S. 945, 954 (2012).
93 Blitz, supra note 63, at 16.

94 Id.
95 See generally Stanley, supra note 16, at 3 (2015) ([I]n a place like New York City it would
2017 Shooting in High Definition 199

their officers to conduct citizen encounters in different ways.96 Some cities

require officers to turn on their cameras only when the encounter is
investigative or enforcement-related in nature,97 some when the citizen
requests the officer to begin recording,98 and others at all times during an
officers shift.99

3. Consent to Record

As mentioned previously, in certain circumstances police are required

to obtain consent from an occupant before recording a consensual
encounter or record the inner workings of a persons home.100 States either
have one-party or two-party consent laws.101 One-party consent laws do
not require the police officer to inform the subjects that they are recording,
whereas two-party consent laws require police to notify the subject that
they are recording and receive consent to record the subject.102 Two-party
consent states have had more difficulty implementing body cameras, but
some states have successfully worked with their legislatures to exempt
police from two-party consent.103 However, some cities find that it is good
practice to inform the subjects that police are recording, as it may diffuse
potentially confrontational situations.104
Requiring the police to notify a person when they are being recorded
varies between cities, but most cities strongly encourage their officers to
notify the individual.105 For example, in Dallas, Texas, the officer has the
discretion to notify the person if they are being recorded, but must answer

mean unleashing 30,000 camera-equipped officers on the public streets, where an officer on a
busy sidewalk might encounter thousands of people an hour.).
96 See BRENNAN CTR. FOR JUST., supra note 82, at 2 (describing the difference between

several cities policies on when the officer must record).

97 See id. (noting that Baltimore requires their officers to begin recording at the initiation of

a call for service or other activity that is investigative or enforcement-related in nature, and
during any confrontational encounter).
98 See id. (identifying Charlotte, North Carolina as allowing their officers to begin recording

when, among other situations, the citizen requests the officer to record).
99 See id.at 3 (directing the Ferguson, Missouri officers to begin recording when the officer is

in contact with the general public or when performing official duties).

100 See supra Part IIA.1.
101 3 Steps for Writing Body Camera Consent to Record Policies, POLICEONE (Mar. 4, 2015),
https://www.policeone.com/police-products/body-cameras/articles/8388080-3-steps-for-
writing-body-camera-consent-to-record-policies/ [https://perma.cc/HBL8-H3FJ].
102 Id.; see U.S. DEPT JUST., supra note 10, at 14.

103 U.S. DEPT JUST., supra note 10, at 14.

104 Id.

105 See generally BRENNAN CTR. FOR JUST., supra note 82, at 3 (identifying the cities that either

require consent, encourage notification, or have not specified how the officers should act).
200 New England Law Review Vol. 51|1

truthfully if the person asks if they are being recorded.106 Los Angeles,
California encourages their officers to notify the person being recorded, but
consent is not required if the officer is legally in an area.107

4. Constant Surveillance

A main rebuke to equipping police with body cameras is that the mass
recordings will ultimately lead to a surveillance state.108 Some cities have
placed limits on First Amendment activities, while other cities do not have
any policies in place on whether police are able to record those activities.109
Baltimore, Maryland does not place a limit on recording constitutionally
protected activity and does not allow the recordings to be used to identify
persons present unless they are suspected of criminal activity or in need of
assistance.110 Dallas, Texas defines protests as law enforcement activity,
thus officers must record the activities, whereas San Jose, California
explicitly prohibits recording someone based solely on exercising their First
Amendment rights.111 Washington D.C. mandates that officers are to record
First Amendment assemblies, but not for the purpose of identifying or
recording the presence of law-abiding participants.112
A main worry for civil liberty organizations is that the police will one
day use all the footage to create a database using facial recognition
technology.113 Some police forces have stated that if the facial recognition
technology proves to be reliable, they would love to have this
technology.114 According to a Brennan Center for Justice study, of the
cities studied, only Baltimore places a limit on facial recognition

106 Id.
107 Id. at 4.
108 Stanley, supra note 16, at 3; see also Robinson Meyer, Many Police Departments Have

Dismal Body-Camera Laws, ATLANTIC (Nov. 9, 2015), http://www.theatlantic.com/

technology/archive/2015/11/many-of-the-nations-largest-police-departments-have-dismal-
body-camera-laws/414945/ [https://perma.cc/8SX8-URPP] (Body cameras could easily turn
into another tool of government surveillance . . . .).
109 See BRENNAN CTR. FOR JUST., supra note 82, at 1.
110 Id. at 2.
111 Id. at 3, 6.
112 Id. at 7.

113 See generally Stanley, supra note 16, at 7 (stating that footage taken from body cameras

should not be subject to face recognition searches or other analytics).

114 Michael De Yoanna, Colorado Police Cautiously Eager About Body Cameras that Recognize
Faces, CO. PUB. RADIO (July 19, 2015), http://www.cpr.org/news/story/colorado-police-
cautiously-eager-about-body-cameras-recognize-faces [https://perma.cc/Q9A4-ZFEQ].
2017 Shooting in High Definition 201

technology.115 The ACLU takes the approach that video not marked for
retention will not be subjected to automated analysis or analytics.116

A. Plain View Doctrine

The Warrant Clause of the Fourth Amendment protects an individual

to be free from a search or seizure unless a warrant is issued upon probable
cause, particularly describing the place to be searched, and the persons or
things to be seized.117 In order for a warrant to be issued, an affidavit must
be brought before a neutral magistrate, who then must determine whether
probable cause exists.118 Probable cause exists when there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.119
A warrant may allow police to search a homes garage for evidence of
drug production, but that warrant does not give police authority to search
any other part of the home.120 Or a warrant may give police authority to
search an entire home for guns or other weapons, but similarly, that
warrant does not give the police the right to rummage through spaces
within the homecomputers, personal diaries, or small desk drawers
where such weapons could not possibly be found.121
The plain view doctrine was created as an exception to the warrant
requirement, and dictates that under certain circumstances, police may
legally seize evidence in plain view without a warrant.122 Where an officer
has a warrant to search a given area for specified objects, and in the course
of the search comes across some other object of incriminating character, the
plain view doctrine may apply.123 In order for the plain view doctrine to be
satisfied, the officer must lawfully be in the area being searched, the item
must be in plain view, and its incriminating character must also be
immediately apparent.124

115 See BRENNAN CTR. FOR JUST., supra note 82, at 2 ([Body-worn Camera] video shall not

be used to create a database or pool of mug shots or be searched using facial recognition
software. This does not prohibit using recognition software on the video of a particular
incident when a supervisor has reason to believe a specific suspect is on the recording.).
116 Id. at 9.
117 U.S. CONST. amend. IV.
118 Illinois v. Gates, 462 U.S. 213, 238 (1983).

119 Id.
120 Blitz, supra note 63, at 13.

121 Id.
122 Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).

123 Horton v. California, 496 U.S. 128, 135 (1990).

124 Id. (quoting Coolidge, 403 U.S. at 466) (emphasis added).
202 New England Law Review Vol. 51|1

What happens when items are captured on camera that are not
immediately apparent, but their incriminating character becomes apparent
when the video is subsequently reviewed?125 For example, even if the
police avoid capturing any evidence outside of the scope of the warrant,
the captured footage could be reviewed and potentially zoomed in on to
read documents that were in the general area.126 Stretching the plain view
doctrine to include later reviews of searches could incentivize the officer
conducting the search to capture all of the inner workings of the house, and
cause the reviewing officer to scrupulously look over every section of the
house.127
Until courts begin to rule on this issue, police should gain consent of
the person in control of the area to record, prior to searching a protected
area.128 Then, once the search is completed, the police should not disclose
the video to the public unless they have authorization from the person with
authority of the area.129 Since the footage the police capture of a persons
house could contain an untold amount of private information, police
should only be able to re-search the house if they go back in front of a
magistrate, show why they need to re-search the house using the video
footage, and secure a warrant to do so.130

III. Other Concerns

A. Cost of Implementation

To implement body cameras into police officers daily routines, several

things need to be accomplished. First, the equipment needs to be
purchased.131 Equipment consists of body cameras and data storage
devices.132 Second, the police officers need to be sufficiently trained on how
to safely operate the body cameras, when to turn the camera on or off

125 Blitz, supra note 63, at 14.

126 Id.
127 See generally Kyllo v. United States, 533 U.S. 27, 37 (2001) (noting that all details of the

home are intimate details, and are protected from prying government eyes).
128 See supra Part IIA.3.
129 See infra Part IIIB.1.
130 See generally California v. Riley, 134 S. Ct 2473, 249495 (2014) (finding that since smart

phones contain vast amounts of information, when police seize the phones, they must secure a
warrant before looking through its contents).
131 U.S. DEPT JUST., supra note 10, at 31.

132 Id. at 32; see also Brian Bakst & Ryan J. Foley, For Police Body Cameras, Big Costs Loom in

Storage, POLICEONE (Feb. 6, 2015) https://www.policeone.com/police-products/body-

cameras/articles/8243271-For-police-body-cameras-big-costs-loom-in-storage/
[https://perma.cc/B2TH-7PDR] (noting that the high cost of storing data from body cameras
can get into the millions in some cities).
2017 Shooting in High Definition 203

(assuming that the cameras are able to be turned on and off), and how to
securely store the data from the shift.133 Third, procedures need to be put
into place involving the secure storage of data, when and how to delete
unnecessary data, and how to save the data that could be used in trial.134
Lastly, there may be extra personnel needed to assist in the storage of the
data.135

1. Cost of Equipment and Storage

The purchasing of body cameras and storage devices can lead cities to
incur high costs.136 Companies such as TASER International and Vievu
have become the leading producers of body cameras.137 The price of a body
camera ranges anywhere from $399 to $599 for TASER, and $349 to $899 for
Vievu.138 Some police forces have estimated the cost of placing a body
camera on each officer to be as much as up to $1000 per officer.139
However, the cost to store all the data recorded is far more than the
cost to outfit officers with cameras.140 In Olympia, Washington, for
example, to outfit an officer with a body camera would cost the city a one-
time amount of $1000, but to save all the recorded data could cost the city
between $200 and $600 per officer per month.141 TASER International
created an online storage marketplace for police forces, but one main

133 See U.S. DEPT JUST., supra note 10, at 32.

134 Id. at 3132.
135 See Bakst & Foley, supra note 132 (listing examples from several cities that have

implemented a body camera system and how one or two people are needed to run the storage
of all the videos recorded).
136 See, e.g., Megan Cassidy, Phoenix Police: Body Cameras Beneficial but Costly, AZCENTRAL

(Jan. 22, 2015, 6:45 AM), http://www.azcentral.com/story/news/local/phoenix/2015/

01/21/phoenix-police-body-cameras-beneficial-costly/22142475/ [https://perma.cc/BBS5-YD5J]
(noting that it would cost Phoenix, Arizona $3.5 million to outfit its police force with body
cameras and necessary storage equipment).
137 Mike Wehner, Heres What It Would Cost to Put a Camera On Every Cop in Ferguson, DAILY

DOT (Nov. 26, 2014, 7:44 PM), http://www.dailydot.com/technology/police-body-cam-

ferguson/ [https://perma.cc/C5X3-AQ45].
138 Id.
139 Andy Hobbs, Olympia Weighs Cost, Privacy Issues Related to Police Body Cameras,
OLYMPIAN (Feb. 19, 2016, 11:57 AM), http://www.theolympian.com/news/local/article
61330842.html [https://perma.cc/ASK7-HAC9].
140 Noelle Phillips, Body Cameras for Denver Police to Cost $6.1 Million Over Five Years,

DENVER POST (July 7, 2015, 5:32 AM), http://www.denverpost.com/2015/07/07/body-cameras-

for-denver-police-to-cost-6.1-million-over-five-years/ [https://perma.cc/KRZ3-6X9S]; see also
Hobbs, supra note 139 (noting that to place a camera on an officer is a one-time cost of $1000,
and to store the data recorded can cost between $200 and $600 per officer per month).
141 Hobbs, supra note 139.
204 New England Law Review Vol. 51|1

concern for police forces is how much storage to purchase.142 Police in

Birmingham, Alabama have a five-year contract with TASER International,
which consists of five terabytes (TB) of storage that will cost roughly
$889,000 over the five-year span.143 However, over the first two months of
the five-year span, the Birmingham police used 1.5 TB of data, and
calculate that they will be out of available space within six months.144 Los
Angeles is in the process of outfitting their 860 officers with body cameras,
and has set aside $1.5 million mainly for storage of data.145

B. Retention and Disclosure of Police Video

Once an officer records an interaction, the footage gets uploaded into a

server that is kept and maintained by the police and the data processing
company.146 A major issue to be addressed is what the police do with the
data.147 A prevalent approach is to not retain the data any longer than it is
reasonably necessary for the purpose of why it was collected.148 The
footage normally gets split up into one of two groups: non-evidentiary or
evidentiary material.149 If the footage does not convey any criminal activity
or furthering of an investigation, it gets a non-evidentiary label, and the
police can delete the data rapidly.150 However, there are some cities that
require non-evidentiary videos to be kept for an extended amount of
time.151 Police favor shorter retention times for non-evidentiary videos to

142 See Lucas Mearian, As Police Move to Adopt Body Cams, Storage Costs Set to Skyrocket,

COMPUTERWORLD (Sep. 3, 2015, 2:45 AM), http://www.computerworld.com/article/2979627/

cloud-storage/as-police-move-to-adopt-body-cams-storage-costs-set-to-skyrocket.html
[https://perma.cc/28EX-TP9R].
143 Id.

144 Id.

145 See Julia Edwards & Anjali Athavaley, High Costs Hinder Outfitting of U.S. Cops With

Body Cameras, REUTERS (Apr. 23, 2015, 7:56 AM), http://www.reuters.com/article/us-usa-police-

cameras-idUSKBN0NE14P20150423 [https://perma.cc/S972-FYTC].
146 Wagstaff, supra note 19.
147 See U.S. DEPT JUST., supra note 10, at 1617.
148 Stanley, supra note 16, at 6.

149 U.S. DEPT JUST., supra note 10, at 16.

150 See id. at 17. See generally Michelle San Miguel, Pueblo Police Explain How Long They Keep

Body Cam Footage, KRDO (Apr. 4, 2015, 11:19 PM), http://www.krdo.com/news/pueblo-police-

explain-how-long-they-keep-body-cam-footage/32197870 [https://perma.cc/B3SU-A3UA]
("The majority of things are innocuous. They can be deleted and nobody would ever need
them again.).
151 See generally BRENNAN CTR. FOR JUST., POLICE BODY CAMERAS POLICIES: RETENTION AND

RELEASE, 25 (Feb. 5, 2015) (hereinafter RETENTION AND RELEASE) http://www.

brennancenter.org/sites/default/files/Retention_and_Release.pdf [https://perma.cc/8FKY-
A6PL] (listing the time cities need to keep non-evidentiary videos from 45 or 60 days to 2
years).
2017 Shooting in High Definition 205

protect individual privacy rights and to lower the cost of retaining the
data.152
Evidentiary video, on the other hand, involves footage of an incident
or encountersuch as a crime, an arrest or citation, a search, a use of force,
or a confrontational encounter with a member of the publicthat could
prove useful for investigative purposes.153 For videos that portray criminal
activity, the time that they are retained generally relates to the time it takes
for the criminal process to finish.154 Police are also able to flag videos in
which excessive force may have been used or where police have reasonable
suspicion to believe that there is evidence of a crime.155

1. Disclosure of Police Video to the Public

Is the public entitled to view the videos recorded by the police?156 That
situation is tricky, as it pits two important interests against each other: the
need for government oversight and openness, and privacy.157 The decision
whether or not to release the recordings is usually left to the legislatures
rather than the police departments.158 Since body cameras are relatively
new, many states have yet to enact legislation to determine how and under
what circumstances recordings can be disclosed to the public.159 However,
state legislatures are currently working on bills to deal with the disclosure
of videos to the public.160
The ACLU takes the approach that videos should be released only if
they show a use of force or activity leading to a felony arrest.161 Further, the
ACLU notes that if the subject of a video files a complaint or requests that
the video be retained and does not object to public release, then the video

152 See U.S. DEPT JUST., supra note 10, at 1617; see also Bakst & Foley, supra note 132 (The

more you capture, the more you have to store, which means higher costs.).
153 U.S. DEPT JUST., supra note 10, at 16.

154 See generally id. at 1617 (Departments often purge evidentiary videos at the conclusion

of the investigation, court proceeding, or administrative hearing for which they were used.).
155 Jay Stanley, Police Body-Mounted Cameras: With Right Policies in Place, a Win For All,
ACLU (Mar. 2015), https://www.aclu.org/police-body-mounted-cameras-right-policies-place-
win-all [https://perma.cc/LV7M-DTZU].
156 See U.S. DEPT JUST., supra note 10, at 15.

157 Stanley, supra note 16, at 2.

158 RETENTION AND RELEASE, supra note 151, at 3; see, e.g., FLA. STAT. ANN. 119.071 (2)(L)(1-

2) (West 2015) (defining videos as public records, but exempting videos from release if they
were recorded at a place where an individual has a reasonable expectation of privacy).
159 See RETENTION AND RELEASE, supra note 151, at 3.
160 See, e.g., S.B. 117, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016) (making videos public only
after a written complaint was filed by someone involved in, or witness to, the law
enforcement action recorded); RETENTION AND RELEASE, supra note 151.
161 RETENTION AND RELEASE, supra note 151, at 9.
206 New England Law Review Vol. 51|1

may be released.162 PERF airs on the side of broad disclosure to promote

transparency and accountability, unless the evidence is being used in an
ongoing trial, or the privacy rights of the individual or place recorded
outweigh the need for transparency.163

2. Viewing of Video by Police

After an officer deals with an incidentfrom routine traffic stops to

arrests or investigationsthey must fill out a report to note what
happened.164 An issue that has arisen, beginning with dashboard cameras,
and now with body cameras, is whether the officer involved in the action is
able to view the video prior to filling out the official police report.165
Viewing the video prior to reporting may enable law enforcement to lie or
distort the truth to ensure the footage does not contradict the statements.166
A stigma of fabrication arises when police are able to view the video before
filing a report or making a statement, especially when an officer has just
shot a citizen.167 The officers perspective at the time of the incident is what
matters, not what the video will purport to show.168 It is a double-edged
sword for officers, because if they perceived a situation to be more
threatening than it was, the subsequent description of the event may not
match the footage, while if the officers account matched the footage too
well, that could raise questions about the source of the officers memory.169
The proponents of allowing police to view the footage prior to writing
their reports believe that the human memory is inherently flawed, and
since the recorded footage is the ground truth, allowing an officer to

162 Id.
163 Id.
164 See Kathy Pezdek, Should Cops Get to Review the Video Before They Report?, MARSHALL

PROJ. (August 13, 2015, 7:15 AM), https://www.themarshallproject.org /2015/08/13/should-

cops-get-to-review-the-video-before-they-report [https://perma.cc/B5KH-J6BY].
165 Id.
166 Jay Stanley & Peter Bibring, Should Officers Be Permitted to View Body Camera Footage
Before Writing Their Reports?, ACLU (Jan. 13, 2015, 12:15 PM), https://www.aclu.org/blog/free-
future/should-officers-be-permitted-view-body-camera-footage-writing-their-reports
[https://perma.cc/BJN6-5ED2 ] (Oakland, CA, has a policy prohibiting officers from
reviewing video prior to making a statement in an investigation arising out of a Level 1 use of
force (the most serious, including shootings).).
167 See generally Wayne Drash, The Killing of Laquan McDonald: The Dashcam Video vs. Police

Accounts, CNN (Dec. 19, 2015, 12:32 AM), http://www.cnn.com/2015/12/17/us/laquan-

mcdonald-video-records-comparison/ [https://perma.cc/43X3-9CXZ] (detailing how the video
of Laquan McDonald being shot directly contradicted nearly everything police said happened
during the shooting).
168 Stanley & Bibring, supra note 166.
169 Pezdek, supra note 164.
2017 Shooting in High Definition 207

review the film will enhance the accuracy of the officers report.170 Viewing
the footage prior to making a statement provides the best evidence of what
actually took place.171 Police are often in fast paced, intense situations, so
the ability to recall every detail would be difficult.172 However, if the officer
gives an initial statement, and subsequently views the footage to see if he
missed anything, that would help provide the fullest picture of what
happened.173 Further, the officer should have to log into the system using a
registered identification number, so there is a record of when and which
officer viewed the particular footage.174

C. Failure to Record

Body-worn camera programs only work if the officer turns the camera
on, and just as failure to follow other policies could land the officer in
trouble, so too can failure to turn on the camera when they are supposed
to.175 Many departments require the officer to write a report detailing why
they did not have their camera on when they were involved in an
incident.176 Department policies vary in the level of degree of severity for
failing to record, but those departments all treat failure to record as
potentially reprimandable.177 The ACLU takes a stronger approach,
arguing that if an officer fails to record a situation in which there is an
arrest or excessive force is used, there should be a presumption in favor of
the defendant or civil plaintiff.178 However, having the officer fill out a

170 See id.

171 See U.S. DEPT JUST., supra note 10, at 29 (The majority of police executives consulted by
PERF are in favor of allowing officers to review body-worn camera footage prior to making a
statement about an incident in which they were involved.).
172 Id. (When youre involved in a tense situation, you dont necessarily see everything

that is going on around you, and it can later be difficult to remember exactly what
happened[.]).
173 Stanley & Bibring, supra note 166.
174 See POLICE BODY CAMERAS POLICIES: SECURITY, BRENNAN CTR. FOR JUST. 1 (Feb. 5, 2015),
https://www.brennancenter.org/sites/default/files/Security_Chart.pdf
[https://perma.cc/9CMG-N8ZB].
175 See BRENNAN CTR. FOR JUST., POLICE BODY CAMERAS POLICIES: ACCOUNTABILITY 1 (2016),

https://www.brennancenter.org/sites/default/files/Accountability_Chart.pdf
[https://perma.cc/SYT4-PD5Z].
176 Id. (noting that police officers from New York City, Las Vegas, and Oakland, among

others, must document why they either failed to record the incident or why they terminated
the recording before the incident was over).
177 Id. at 1112 (Failure to record . . . may result in disciplinary action. . . . but

[i]ntentionally turning off the system in anticipation of a use of force incident or other
confrontational citizen contact is absolutely forbidden, and will result in discipline up to and
including termination.) (internal quotations omitted).
178 Id. at 14.
208 New England Law Review Vol. 51|1

report stating why he did not record, and allowing his supervisor to
investigate, will allow the officer discretion on whether it is appropriate to
record, and provides a way for the officer to be disciplined if it is
warranted.179

D. Police Concerns

Police officers likewise have concerns over body-worn camera

implementation.180 A primary concern for officers is that wearing body
cameras means that their supervisors do not trust them, and that their
supervisors will use the footage to scrutinize their every move.181 Further,
some officers, especially older ones, may feel that learning the new
technology will be too cumbersome, especially as many departments are
implementing new technology in other areas.182 Another major concern
facing police officers with body cameras is that they may cost the officer
their life.183 Officers may be more concerned with not messing up that
they are going to ignore the signs that theyre about to be attacked.184
However, framing the debate as a check on police behavior is the
wrong approach, noted Chief Terry Gainer, U.S. Senate Sergeant at Arms,
adding, [b]ody cameras should be seen as a tool for creating evidence that
will help ensure public safety.185 When the cameras are seen as useful
tools to reduce complaints or assist in court, officers view the body camera
program as useful.186 Including the officers in the debate on how to
successfully implement a body camera program is a positive step for the
officers.187 Further, when footage is used to provide constructive feedback
and training methods, rather than a tool to be immensely scrutinized,
officers generally feel the program will be useful.188

CONCLUSION

Outfitting police with body cameras brings transparency and

accountability to police forces across the country. Body cameras can record

179 See U.S. DEPT JUST., supra note 10, at 54.

180 See id. at 24.
181 Id.

182 Id. at 2526 .

183 Interview with Shannon Seman, Police Officer, Martin County Sheriffs Office, in Palm

City, Fl. (Jan. 18, 2016).

184 Id.
185 U.S. DEPT JUST., supra note 10, at 26.
186 Id. at 28.

187 Id. at 26.

188 Id. at 2425.
2017 Shooting in High Definition 209

interactions with citizens, commissions of crimes, and in the unfortunate

event, shootings. If an officer is equipped with a body camera, the truth
about what happened will come to light. However, policies must be put in
place to protect the privacy rights of the individual being recorded. Policies
that dictate turning the camera on or off, gaining the consent of the
individual being recorded, and not releasing videos that show the intimate
details of an individual or their private areas to the public protect the
Fourth Amendment rights of everyone involved. Outfitting police officers
with body cameras will be a step in the right direction to restore the faith in
law enforcement that many across the country have lost, and will greatly
improve law enforcements ability to serve and protect the citizens of the
United States.