Members of Palo Alto's Human Relations Commission are concerned over the public's right to access police videos and audio as the city prepares to equip more officers with body-worn cameras.
Police officials unveiled their draft revised Field-Based Video Policy to the commission on Thursday as the first step before bringing it to the Policy and Services Committee and the City Council. The presentation regarding the use of body cameras in addition to the current recordings from patrol car-mounted cameras was informational and sought comments from the commission, but no formal deliberation was scheduled to take place. The department recently completed a pilot program of 10 officers wearing body cameras in addition to its five cameras and audio on each of its patrol cars.
By June, the city wants to purchase an additional 50 cameras and the department aims to revise its policy to include a section on the use of body-worn cameras before fully equipping all officers with the devices.
But commissioners -- particularly Steven Lee and Deepali Brahmbhatt -- had concerns about transparency and public access to the recordings. Some members wanted to take a deeper dive into the policy and potential changes, perhaps even to ask the City Council to allow the commission to make formal recommendations. The audio-video policy is scheduled for consideration by the Policy and Services Committee and for deliberation and a vote by the City Council in the coming months.
Police watchdog Aram James, a defense attorney, told the commissioners that policy allows for arrested persons to obtain the footage of the incident as part of the evidence-gathering practice when a case is going to court.
"But there is no similar right for a person, as an example, brutally beaten by the police, but not arrested, to obtain the same footage. We the public pay for the cameras and should be entitled to view the footage where we believe the police have acted inappropriately, whether we were arrested or not. Often the police will release body-worn camera footage, or footage captured by police car cameras, when the footage shows the police in a favorable light, while refusing to release footage police believe will expose police misconduct," he said.
Capt. Zach Perron, head of the field services division, said that recordings are not released as part of Palo Alto police policy. California Public Records Act requests for recordings are vetted by the record manager, and, if necessary, by the city attorney, but they have discretion based on justification to release the documents. To his knowledge, the department has never released any video or audio recordings from the mobile audio-visual equipment, he said.
Video and audio were released after the fatal police shooting of William Raff on Christmas night 2015 -- by the Santa Clara County District Attorney's office -- and not by Palo Alto police, Perron said. Raff, who suffered from severe mental illness, charged officers with a table knife outside his Forest Avenue group home and was killed. The Santa Clara County District Attorney's Office found the officers were justified in shooting Raff and the death was an orchestrated suicide by the 31-year-old man.
Commissioner Jill O'Nan noted that police reticence to release that video after the fatal incident created lingering issues.
"I, too, had some transparency concerns. I know that this is a complicated area with federal law, state law, local law sort of converging. But like many people of the public, I was perturbed by the Christmas night shooting a few years back and I would like us to have a clearer policy around the release of recordings," she said.
O'Nan was not in favor of releasing the Raff video generally and did not want to violate the privacy of Raff's family, she said.
"But when questions from the community come up, there does need to be a way for us to feel like we can access information. Having the DA -- for the county to have to come in and make that call outside of Palo Alto -- made it uncomfortable for some of us," she said.
Commissioner Steven Lee was perhaps the most vocal in his concern. He asked the commission to put a follow-up discussion regarding options for an HRC response to the council, if they choose to make one, on the next agenda. Brahmbhatt seconded that motion.
Lee wants to draft a letter to Policy and Services and the City Council with the commission's concerns and questions. Also, he wants to ask the council to direct the commission to work on the draft policy and make recommendations.
"This issue is a very hot issue and one that merits additional consideration by this commission. I think it's one of the biggest policy areas that we can have a large impact on this year," he said.
Lee said he wants to learn more about the criteria for releasing information. He also wants the city attorney's opinion regarding whether state law gives the city discretion on its policy to release the videos. "Sometimes municipalities have more discretion than may be suggested otherwise," he said.
Chair Valerie Stinger summed up the commission's general feeling: "We are looking at an adaptation of a policy. I would like to see that it is consistent with access to written information ... so this does not stand out as restrictive."
Brahmbhatt suggested that police put the policy on the city's website for edits and comments from the public.
"Criminal attorneys could red line that policy and identify areas of problems for them. I think even if the City Council were to refer it back to us, I don't think we are experienced to know all the incidents and all the ins and outs that go around the police work. We need criminal defense attorneys. That would make it more balanced," she said.
Brahmbhatt also asked if the public knows they are being recorded. A person must be warned of a recording during a phone conversation, she noted.
But Perron said officers are neither generally required to advise or obtain consent from the public to record when in a public place nor turn off the devices in a location where there is an expectation of privacy when they are lawfully present.
"The public has no right to privacy when speaking with an officer on shift," he said. But officers often will tell people they are being recorded. Sometimes that knowledge has the added benefit of diffusing tense situations, he added.
"It's a safe assumption to make in today's day and age, especially in Silicon Valley, that if you're coming into contact with a uniformed police officer -- if you get stopped for speeding on Alma on your way to an HRC meeting -- you're going to be recorded more than likely by at least one camera video and by one channel of audio, and that's true of almost every police department these days in the Bay Area," Perron said.
Officers are prohibited from recording conversations between a person in custody and their attorney, religious adviser or physician unless all of the persons to be recorded give their explicit consent. And conversations with other officers cannot be made surreptitiously, except with a court order or when authorized by the chief of police to conduct a criminal or administrative investigation, according to existing policy.
James, the police watchdog, told commissioners that some camera policies allow police to turn off their cameras when interviewing informants.
"The rationale often given is that police informants will be reluctant to talk with police out of fear of exposure if they are recorded. One of the leading causes of wrongful convictions is the false testimony of police informants. The better policy is to require that conversations between police and informants should be recorded, but not released to the defense or prosecution without appropriate protective orders," he said.
City policy does not detail whether to record informants.
Palo Alto police first started using audio/video recording technology in its patrol vehicles in 2007. In 2017, the department started a six-month pilot of 10 body-worn cameras. The department found the body cameras, in conjunction with the five patrol car video systems, provide a 270-degree view of what's going on during police encounters, officials said.
Currently, Palo Alto patrol cars are equipped with four cameras that shoot video and audio looking out from the vehicle and one camera captures video looking into the back seat. Charlie Cullen, city director of technical services, said the body-worn cameras will help officers to record incidents that occur where the patrol car cameras cannot go, such as in a building or when out of sight during a foot chase.
Officers are expected to make every reasonable effort to activate the video system during all contacts, including, but not limited to, enforcement or investigative activities, vehicle or pedestrian stops, consensual encounters, citizen flag downs, searches, making or attempting to make an arrest, use-of-force incidents, issuing citations and any dispatched or self-initiated call for service, Administrative Services Capt. Andrew Binder said.
The cameras also automatically record when the patrol vehicle's emergency lights, siren or public-address system are activated, when the rear door of a K-9 unit or the rear door of a patrol vehicle is opened, if the car crashes and if the patrol vehicle speeds up to 80 mph, according to the draft policy.
The recordings are retained for two years and they cannot be erased or altered, Perron said. There are strict protocols for access and use and the video library is controlled by a technology manager.
Police Chief Robert Jonsen, who led the Menlo Park Police Department until about two months ago, said Menlo Park has had integrated body cameras and car video cameras since 2013 and found them "tremendously valuable" toward reviewing and clarifying situations, particularly if there are complaints against officers.
James said there is substantial controversy over allowing officers to review footage from body-worn cameras, and in-vehicle camera footage, prior to officers writing their police reports. The draft policy allows officers to review footage before drafting reports.
"This is much like allowing witnesses to an incident to compare recollections of any incident before testifying. Fact-finders, the court sitting alone or a jury should be allowed to hear the independent testimony of each witness uncontaminated by the statements or recollections of other witnesses. It is for this reason that courts exclude witnesses from a courtroom while other witnesses to the proceedings are testifying. An officer should not be allowed to alter his or her independent recollection of events by viewing footage of the incident he or she may not have actually observed while the incident was occurring," he said.
Perron said that viewing video and audio before or while writing a report increases accuracy since an officer relying on handwritten notes might not get a defendant's statements down verbatim. The accuracy protects both the officer and the defendant.
Discrepancies between the notes and video or audio that later turn up in court can raise questions about the officer's credibility, he said.