Archive for the ‘Criminal Law’ Category

I’ve been posting (here and here) about the increasing interest and mounting evidence to support the use of body worn video (BWV) camera systems for police.   BWV pilot studies have been ordered in New York by the judge who found the New York  Police Department’s stop and frisk program unconstitutional, so the question for many is what these BWV systems do, and what they offer police and the public.

Reveal, a new radio program jointly sponsored by the Center for Investigative Reporting and the Public Radio Exchange (PRX), ran an interesting story on BWV in its pilot episode, which aired on September 28 in my area. “Policing on Camera” put the interest in BWV and its growing use in the context of how a real police officer makes use of BWV, and what he thinks of this tool after using it for some time.  Click on the brief video, and you’ll get his point of view — both in his own words and (literally) from the camera, as he makes an arrest.  Sergeant Michael Williamson of the BART police department makes it clear that BWV is easy to use and benefits him and his fellow officers in multiple ways; he won’t go out on patrol without it.  Thanks to Reveal, you don’t have to take my word for it; see what he says.


In my last post, I described the increasing interest in the use of body worn video (BWV) camera systems by police.  These systems have been in use for more than five years in the UK, where pilot studies (cited in my article in the Texas Tech Law Review) have largely approved of them; police officers in the U.K. who have used BWV have become its biggest supporters.

Now, we have the first rigorous study of the use of BWV in a U.S. police department.  In Rialto, California, Police Chief Tony Farrar became interested in the potential of BWV, and decided he wanted not just to have his officers try them, but to accurately measure their impact.  Rialto has a department of 60 sworn officers.  Farrar teamed with researcher Dr. Barak Ariel of Cambridge University, and the result is “Self-Awareness to Being Watched and Socially Desirable Behavior: A Field Experiment on the Use of Body-Worn Cameras on Police Use-of-Force.”  The bottom line of the study: on police shifts using in which officers used BWV, police use of force dropped 50 percent compared to shifts with no cameras; complaints against police were ten times higher on shifts without BWV compared to shifts using them.  According to a short description from the web site of the Police Foundation, where Chief Farrar is an Executive Fellow, the “extensive yearlong study” was a randomized controlled trial of “body-worn video cameras used in police patrol practices.”

Cameras were deployed to all patrol officers in the Rialto (CA) Police Department.  Every police patrol shift during the 12-month period was assigned to experimental or control conditions.  Wearing cameras was associated with dramatic reductions in use-of-force and complaints against officers.

It’s true of course that the Rialto Police Department is small compared to the NYPD, where the judge deciding the stop and frisk case has ordered that the police begin to use the cameras in some areas of New York City.  But that does not mean that BWV could not work in New York, and it certainly does not mean it is not worth trying the systems.  Perhaps more important, far more American police departments are closer in size to Rialto’s force than to New York.

The study is worth a good long look for anyone interested in the safety of police and the public, in improved police services, in protection of officers from bogus complaints, and in police accountability.  At the very least, it tells us that BWV should not be dismissed out of hand; it needs to be tried.

You’ll probably recall that the judge’s opinion in the recent stop and frisk case in New York mandates that the New York Police Department (NYPD) launch pilot programs testing body worn video (BWV) cameras in some NYPD precincts, including some of those with the largest numbers of stops and frisks.  (Here’s a link to that part of the opinion.) Mayor Michael Bloomberg decried this aspect of the judge’s order (along with the rest of it) — an odd position for a public official who has always been a very strong advocate of more cameras for public safety (see here and here).

In the weeks since, interest in BWV systems has increased greatly, even outside of the U.S.  For example,  the German television network, ARD (described to me by a person who has lived in Germany as “a German PBS, but about the size of CBS or NBC”), brought me to New York last week to interview me after finding my 2010 article on BWV, “Picture This: Body Worn Video Devices (“Head Cams”) as Tools for Ensuring Fourth Amendment Compliance by Police” in the Texas Tech Law Review.   The interview (conducted in English, since I don’t speak German) was quite thorough; I was then shown various publicly available videos of police/citizen encounters — some taken with BWV, others taken by members of the public — and asked for my reaction.  The correspondent and the producers explained that they had brought in law enforcement experts to interview, too.  The story has not yet aired, but I will post a link to it when it does (for those who speak German).   Stay tuned.

And there is more effort to get at the real evidence of how BWV systems perform: what they do for the police, for police accountability, and for the criminal justice system.  Two weeks ago, the Police Executives Research Forum (PERF), a nonprofit, nonpartisan organization that describes itself as  “a police research organization and a provider of management services, technical assistance, and executive-level education to support law enforcement agencies,” hosted a conference for law enforcement on BWV to explore the issues it raises for police.  Here’s a link to one of the conference documents.

And then, something very useful.  There have been various pilot studies already conducted by police and the Home Office in the U.K.; my Texas Tech article contains links to this research.  But now, an American police department that has tried BWV has been the subject of a comprehensive, rigorous study.  It’s a very promising and positive look at the potential of BWV.  I’ll explain in my next post on the subject.

On August 19, the New York Times published an op-ed piece on the stop and frisk case by John Timoney, former first deputy commissioner of the NYPD and former chief of police in Philadelphia and Miami.  Mr. Timoney is a respected figure in American policing; his article, “The Real Costs of Policing the Police,” was a direct shot at Judge Scheindlin’s decision that the NYPD must change how it conducts stops and frisks.  I won’t characterize or excerpt Mr. Timoney’s piece; it’s short and speaks for itself.  I urge you to go to the link and read it.  But it deserves a reply: Mr. Timoney gets important things wrong, and fails to reckon with costs he prefers to ignore.

Judge Sheindlin did not find that “the benefits of ending what she considers to be unconstitutional stops would far outweigh any administrative hardships.”  In fact, Sheindlin made sure she stuck to the one job a court has in such a case: assessing whether or not it is constitutional.   She explicitly, and properly, declined to weigh the costs and benefits of the program.   

Second, Mr. Timoney encourages skepticism of the court’s order to begin pilot programs using body-worn video (BWV), based on the reality show “Cops.” But instead of phony TV, examine the comprehensive field studies of BWV done in Britain.  Officers using BWV found it extremely beneficial for recording evidence, creating records, more rapidly resolving cases, reducing public order offenses, and promoting successful prosecution of domestic violence offenses.  The cameras also, of course, facilitated greater police accountability in the bargain. (My law review article on BWV in the Texas Tech Law Review can be downloaded here.)

Third, Mr. Timoney says that the problem would solve itself without court intervention.  Stops have come down considerably in recent months; officers “have gotten the message.” Maybe some have.  But the statements of the NYPD leadership both during and after the trial strongly supporting the program as it has operated over the past six years shows those leaders want the program maintained, not reformed.

Most importantly, Mr. Timoney bemoans the costs of implementing Judge Sheindlin’s orders, and those costs will be considerable.  But he fails to acknowledge the costs to the many New Yorkers over the years who were stopped, questioned and frisked without reasonable suspicion.  Apparently, Mr. Timoney believes that if the Police Department or the city don’t pay a cost, it doesn’t count.  The judge’s decision makes clear that this simply isn’t true: a huge cost has been paid all along.


An update on my May 22  post on the NYPD stop and frisk case: the U.S. Department of Justice has filed a “statement of interest” in the case to say that if the judge rules against the NYPD, the preferred remedy would be an independent monitor to implement changes and make sure they take root.

According to the Wall Street Journal, Mayor Michael Bloomberg reacted by saying that appointing an independent monitor for the NYPD  would be a “terrible idea.”

Independent monitors are common in cases in which the federal government has sued police departments to impose needed reforms to stop patterns or practices of constitutional rights violations in those departments.  For example, police departments in Seattle, Detroit, and East Haven, Connecticut currently have federal monitors; federal monitors have been used in now-completed cases in Los Angeles, Cincinnati, Pittsburgh, and other cities.   Samuel Walker, professor emeritus at the University of Nebraska, explained in the Wall Street Journal article that “monitoring the department would entail a team of people who would conduct audits of reports officers must file for every stop…The team would follow up by interviewing officers and their supervisors about the stops and filing reports to the judge.”

The DOJ Statement of Interest is not binding on the judge; in fact, the DOJ is not a party in the lawsuit.  It was simply used by the DOJ to say that IF the judge found the NYPD to have violated the Constitution (she has made no finding yet), the proper remedy for the violation should include an independent monitor.

Last week, a judge in Florida ruled that the trial of George Zimmerman in the death of 17-year-old Travon Martin will begin next week, as scheduled.  The case will put Florida’s “stand your ground” (SYG) law front and center.  How does Florida’s SYG law work?  What was it supposed to do, and does it accomplish those goals?

I was interviewed on SYG laws on WESA Public Radio’s Essential Pittsburgh on June 3.  (The interview is here.)  Here’s a brief rundown of what I know.

For centuries, Anglo-American law on homicide and self-defense have had a singular goal: avoid violence and death.   If a person is faced with an illegal forcible attack, he or she can engage in self-defense, using as much force as necessary but no more.  An attack with fists can be met with fists, but not with firearms. (Possible exception: the fists of a trained fighter or martial arts expert.)  If one is faced with deadly force, one can use deadly force in self-defense, but if there is a way that one can retreat from the threat  in absolute safety — that is, if the victim can get away without putting himself at risk — the law required him to retreat and avoid the fight.  This was consistent with the overall idea: avoid injury and death if at all possible.

The one exception to the rule of safe retreat was that one did not have to retreat within one’s own home.  This was called the Castle Doctrine: your home is your castle, your ultimate place of safety, and one should not have to flee to safety when they are already at home.

Florida’s SYG law changed this.  A person under deadly attack did not have to retreat in his home, or in any other place that he had a right to be.  There was no more obligation to retreat outside the home; rather, the person could stand his ground and resort to deadly violence in his own defense, even if there was a safe way out of the situation.  In addition, the Florida SYG law put in place strong presumptions preventing a victim who killed an attacker from being criminally charged, and preventing him from being sued.  Most SYG laws have some or all of these features.

SYG laws were supposed to do three things.  First, advocates said the laws would lower the rate of serious crime, because criminals would be deterred.  Second, SYG laws would be a particular deterrent against homicides.  Third, they would put an end to criminal charges against people engaged in legitimate self-defense and the lawsuits that these people were facing from the criminals who they shot (or their survivors).

How has this worked out?

I am a member of the American Bar Association’s National Task Force on Stand Your Ground Laws, which is currently holding a series of hearings on SYG laws around the U.S., and collecting the relevant research studies on these laws and how they work in practice.  (The next hearing is in Philadelphia on Thursday, June 6, and is open to the public; complete information is here.)   The studies show something different than advocates for these laws expected.  The leading scholarship on SYG laws, from researchers at Texas A & M University, shows that in states that have passed SYG laws, serious crime is unchanged — not down — and homicide has shown an overall increase of 8 percent.  (Here is another study that also shows how homicide increases.)  And as far as criminal charges and/or lawsuits, those seem not to have been anything more than anecdotes in the first place.

I’ll post more on what we learn as the Task Force does its work.

On Monday, May 20, Judge Shira Scheindlin of New York heard final arguments in a trial about stops and frisks by the New York Police Department (NYPD).  The Center for Constitutional Rights and a number of individuals has sued the NYPD.  They allege that the NYPD has used stops and frisks for the last ten years in violation of 1) the Fourth Amendment right against unreasonable searches and seizures,  and 2) the Fourteenth Amendment right to equal protection of the laws, because stops and frisks have overwhelmingly targeted racial minorities — chiefly black and Latino men.   The judge’s decision may not  come for some months.  I discussed the case on NPR’s Tell Me More on May 21 (here) along with Delores Jones-Brown of John Jay College of Criminal Justice.

Here’s a short course on stop and frisk in American law, codified by the U.S. Supreme Court’s case of Terry v. Ohio (1968).  Generally, an arrest or a search requires that police have probable cause to believe that the suspect is involved in a crime.  Probable cause is less evidence than “proof beyond a reasonable doubt,” and less evidence than “more probable than not” (the usual 50.1% of evidence required to win a civil case in the U.S.).  A stop and frisk is less intrusive than a traditional arrest or search: it is a temporary detention (stop) and a pat down of the outer clothing for weapons (frisk).  So it requires only reasonable, fact-based suspicion — an amount of evidence less than probable cause.  To use the Supreme Court’s terminology, an officer may perform a stop when he/she has reasonable suspicion that crime is afoot and that the suspect is or was involved; the officer may also perform a frisk when he/she has reasonable suspicion that the suspect is armed.  Reasonable suspicion is a very low standard of evidence, but it is enough for stop and frisk because the stop is supposed to be brief and temporary, and the frisk is cursory and only for weapons, not a general search for evidence.

In 2002, the NYPD’s own statistics showed that officers performed 97,000 stops and frisks; by 2011, the number had increased to about 700,000.  (You can access the NYPD’s  statistics here.) Crime was already at historic lows in 2002 and is even lower now.  The NYPD claims that the continued drop in crime shows the effectiveness of its intensive use of stops and frisks, even though only about ten percent of these actions yielded any contraband or resulted in an arrest.  Over the same period, roughly 88 percent of those stopped and frisked were black and Latino men, leading to charges that the NYPD stop and frisk program was a form of racial profiling.

Judge Scheindlin’s comments during the final arguments on May 20 lead me to think that she will decide that the stop and frisk activity of the NYPD violates the Fourth Amendment requirement of reasonable suspicion.  She said she thought that getting results in only about ten percent of the cases — and finding guns (the objective of the NYPD’s stop and frisk activity) in far fewer cases than that — showed that the police were acting without even enough evidence to meet the very low standard of reasonable suspicion.  “A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun…[T]he suspicion turns out to be wrong in most of the cases.”  Proving that the racial skew in the statistics is racial profiling is more difficult, requiring both convincing statistical evidence and evidence of actions by the NYPD that target racial or ethnic minorities.

What do you think?   I’ll be keeping you posted.