SUNDAY EDITION | In Kentucky, courts are new frontier for police - WDRB 41 Louisville News

SUNDAY EDITION | In Kentucky, courts are new frontier for police body cameras

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By Marcus Green and Jason Riley

SHEPHERDSVILLE, Ky. (WDRB) -- Narcotics detectives arrested four people in April and charged them with drug trafficking after they observed the group buying 300 hydrocodone pills at a park in this city about 20 miles south of Louisville.

At least, that's the account of the Bullitt County Sheriff's Office.

For more than a year before the arrest, some sheriff's officers had been required to activate small body-worn cameras during “any interaction with the public that is law enforcement related.” A two-page policy calls for disciplinary action -- including termination -- if the rules aren't followed.

But there was no recorded evidence as the case moved through the court system -- the result of a policy that requires only some members of the department, but not detectives, to wear body cameras. The distinction went unnoticed at a Sept. 15 hearing in which a defense attorney, prosecutor and judge discussed the camera guidelines.

“They're telling you that despite their policy, and the fact that there were three deputies involved, none of them were wearing cameras?” Bullitt Circuit Judge Rodney Burress said, according to a video recording of the hearing. No one disputed him; in fact, a prosecutor told Burress, “Actually, I think there were four to five deputies involved.”

The case highlights one potential pitfall with the devices, which Kentucky and Southern Indiana law enforcement agencies are increasingly using. Even with policies in place, there can be confusion in court about how the cameras are utilized.

Nearly all local and regional police and sheriff's departments with body cameras have rules for the technology, but the policies lack consistency, a WDRB News review has found. Some officers, such as Bullitt County deputies, are required to turn on their cameras on nearly every service call, while others have broad discretion in deciding when to record.

At least eight cities and counties in Kentucky currently have the cameras, including three departments in the Louisville area, and one agency in Clark County, Ind., use them.  Louisville Metro Police are seeking proposals for body cameras, which the department plans to roll out later this year or in early 2015.

Meant to provide an indisputable record of police actions that safeguard citizens and officers alike, body cameras are at the center of a national policing debate that has accelerated since a Ferguson, Mo., officer shot and killed an unarmed teenager this summer.

WDRB News analyzed body camera policies provided by departments and obtained under public records requests, comparing them with a set of recommendations made last month by the Police Executive Research Forum and the U.S. Department of Justice.

Among the findings:

-The report recommends officers turn on their cameras during "all calls for service" and other law enforcement activities. But the policies adopted by the Owensboro and Florence police departments in Kentucky, however, stop short of requiring camera use. Owensboro officers, for instance, are "encouraged" to turn on the cameras "anytime the officer is engaged in a criminal investigation or anytime the officer reasonably believes that a recording of an on-duty contact with a member of the public may be of future benefit."

-The report says policies should indicate when recording must start and stop. Four departments -- Owensboro, Florence and the Henderson County Sheriff's Office in Kentucky, and Clarksville, Ind., police -- don't specify how long the cameras must remain on.

-Data from the cameras should be downloaded when an officer finishes a shift so that old recordings aren't lost and evidence is entered “in a timely manner,” the report recommends. However, only Hillview police and the Henderson sheriff's office require data to be stored at shift's end.

One agency, the Shepherdsville Police Department began outfitting 19 officers with cameras about 1-1/2 to 2 years ago, Lt. Col. Dan Patchin said. Even though the cameras are in use -- and have been key in least one criminal case -- there is no policy governing them.

Patchin said the department follows the guidelines for cameras already mounted inside police cars, and that officers record nearly all interactions with the public.

“The skeleton of our policy is in place,” he said.

An aid in court

In Kentucky and across the nation, body cameras give prosecutors the ability to show jurors evidence that would previously have come from a written citation or an officer's testimony.

But defense attorneys long have challenged officers' accounts, particularly in drunk driving cases in which police observe whether drivers are slurring speech, have noticeably bloodshot eyes or fail sobriety tests.

“Now police are able to catch in detail aspects of field sobriety that are hard for a jury to understand simply by reading citations or hearing testimony,” said Amber Jones, a Bullitt County defense attorney.

Since Bullitt law enforcement agencies began using the cameras, Jones said she has persuaded clients to take plea deals -- rather than go to trial -- based on the footage.

“It makes it much easier for them to understand a guilty plea is probably going to be in their best interest, because you don't want a jury to see this,” she said. “I think, as a general rule, the cameras will clear up doubt on some cases and ultimately benefit the prosecution more than it will the defendant.”

But defense attorneys have had some success in using videos from body-worn cameras.

When a man was arrested on drug charges March 7, Shepherdsville police wrote in a report that after talking to him, he consented to let police "search his person," which led to an officer finding Oxycodone and a crack pipe, according to court documents.

But Joe Mills, the man's attorney, said the video showed that his client never agreed to the search. Mills subsequently filed a motion in Bullitt Circuit Court to withhold the evidence. Bullitt Commonwealth's Attorney Mike Mann agreed to a plea deal before a hearing on Mills' motion.

“Whether my client consented to being searched was at issue in this case and it is difficult to credibly rebut police testimony in court,” Mills said in an e-mail. “After reviewing the video from the police body camera, the issue was clarified and as a result, I was able to negotiate a more favorable disposition for my client.”

The man, who had been charged with drug possession, trafficking and tampering with evidence, among other charges, pleaded guilty to possession of a controlled substance and was given probation.

“The body-camera video was very helpful to the defendant,” Mills said.

Mann did not return a phone call seeking comment.

A “civilizing effect”

The videos also can help to prove, or refute, allegations of police misconduct.

In August 2013, Arizona State University criminologist Michael White found that body cameras have had a “civilizing effect, resulting in improved behavior among both police officers and citizens.”

White also wrote, in his report for the Department of Justice, that several studies have shown a decrease in citizen complaints and charges of use of force by police and assaults on officers since body cameras were implemented.

In early 2011, a sheriff's deputy in Henderson County, Ky., wrote a speeding ticket to a teenaged driver and documented the stop on his body camera, Col. David Crafton said in an email. The driver's mother later filed a complaint, alleging that she overheard the deputy offer to “get rid of the ticket in exchange for sex,” he said.

The deputy's body camera showed no such offer occurred, Crafton said, and the mother was charged with filing a false police report, fined and given a short jail sentence.

But having a policy doesn't rule out disputes over whether the cameras are being used properly -- as was the case in the alleged hydrocodone buy in Shepherdsville last April.

“If their policy is to have that material running and I'm being told that simply doesn't exist -- I have a major problem with that,” John Cook, an attorney for one of the four people charged with drug trafficking, said at last month's hearing in Bullitt Circuit Court.

In an interview, Cook said Bullitt County narcotics detectives were wearing body cameras in a case last year in which a man he represented was arrested.

“I don't understand why sometimes they have it and sometimes they don't,” Cook said.

Capt. Mike Murdoch, the sheriff's office patrol division commander, said four detectives from the county's drug task force were involved in the incident earlier this year. In an e-mail he noted that “due to safety and dynamics of the investigation, they may or may not have cameras on.”

“If there was a patrol deputy there, there will be video,” Murdoch said in an interview.

“There's right now not a good useful tool for our narcotics guys to use to record these interactions that's going to be safe and practical,” he said. “I'm not going to … take a chance of them getting killed by wearing a camera into a drug investigation.”

Privacy concerns

The increased use of body cameras has raised privacy and other issues, including whether some departments will use the technology to scrutinize officers' every move.

“There's concern from some unions and some agencies, from police officers, that supervisors would be on random checks or on witch hunts to find wrongdoing on the part of officers,” said John Reed, former chief of the Henderson Police Department and professor at the University of Louisville's Southern Police Institute.

Reed, a former LMPD narcotics detective, said policies should address when supervisors can review body-camera footage. The recent federal report recommends that the footage only be reviewed in specific cases -- if an officer has a pattern of misconduct or a supervisor is investigating a complaint, for example.

In Bullitt County, two deputies were reprimanded after a review of their body cameras showed they had violated the department's guidelines for pursuing suspects, Murdoch said.

“The cameras confirmed what we already knew,” he said. “So it wasn't that we were just out headhunting or anything else.”

The privacy concerns also extend to citizens. Among the recommendations in the report released last month is a requirement that officers tell people they're being recorded, “unless doing so would be unsafe, impractical, or impossible.”

That requirement would even apply to states like Kentucky, where by law only one side of a conversation needs to consent to a recording, the report concludes.

“We would definitely encourage police officers to disclose to individuals that they are being recorded when they're being recorded – and that was recommended throughout the report from law enforcement experts as well,” said Kate Miller, program director for the ACLU of Kentucky. “So I think that that's something that should be included in the policies.”

But Kentucky law enforcement agencies don't require such notifications. The Russellville Police Department's policy notes that state law doesn't require such notifications, and the Owensboro police's rules presume that anyone approached by a uniformed officer “wearing a conspicuously mounted body camera will have knowledge that such contact is being recorded."

All of these are issues Louisville police are likely to confront as they craft their camera policy.

Police have completed a testing process for body cameras that involved patrol officers and one plainclothes officer, according to a 3-page report from August 2013 obtained under a public records request. The report concluded that a camera manufactured by Taser is the best option for LMPD because it was easy to use, produced clear images and performed well in “low-light” conditions.

Despite the testing process being “completed,” as police acknowledge, LMPD declined WDRB News's request for internal memoranda and email correspondence that would shed additional light on the camera tests. Those documents are "preliminary," and allowed to be kept private under state law, police said.

Louisville police ultimately plan to outfit 900 patrol officers with the cameras.

Jefferson Commonwealth's Attorney Tom Wine said the technology “can be a shield and a sword.”

“They would protect officers against false accusations and document the criminal conduct of the suspect. Likewise, they could substantiate a suspect's claim of innocence,” he said. “At the same time because they have a limited scope of view, things may happen out of the range of the lens that will still require explanation by the parties. Overall I think they will be a benefit to law enforcement."

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