Localities would set policies on body-worn cameras

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Police departments may be required to es­tablish a written poli­cy for the use of body-worn cameras in Virginia, under a bill now awaiting the gov­ernor’s signature.

“The whole purpose of body cameras is to engender trust between the police and the com­munity they serve,” said the bill’s sponsor, Del. Mark Levine, D-Alexandria. “But when you have no clear, written policy, that could lead to a situation where, on an ad hoc basis, police officers use body-worn cameras at their own will.”

Under House Bill 246, localities would be required to create usage policies pri­or to implementing body-worn cameras, using a model policy established by the Virginia Department of Criminal Justice Services, or VDCSJ, as guidance.

However, the bill would not require lo­calities without an established body-cam system to adopt such equipment.

“As an accountability piece, it makes sense,” said David Johnson, executive director of the Virginia Indigent Defense Commission. “[A policy] allows me to make sure those procedures, which pre­sumably were put into effect for good rea­son, are followed.”

The VDCSJ policy includes provisions on purpose and procedures, including use of body-worn cameras generally, equip­ment, officer/duty responsibility, supervi­sor responsibility, privacy and restricted use, access and video retention.

The guidelines also suggest when body-worn cameras can be turned on and off – a rule that Johnson said varies among departments. He said that some jurisdic­tions requires police officers to hit “re­cord” when approaching a citizen and to let them know the interaction is being taped, while others leave it up to the po­lice officer’s digression on when they start recording.

“I think that’s a problem,” Johnson said. “If we’re truly trying to capture what happened and preserve the evi­dence, then everything should be record­ed. That’s what the equipment’s for.”

The bill would also require police de­partments to consider public comments before implementing body-worn camera policies.

“I don’t think this should be done in secret. I think it should be open and transparent and with public comments,” Levine said.

Levine introduced the first iteration of HB 246 in 2016, which would have re­quired localities to adhere exactly to VD­CJS guidelines, rather than having the freedom to create their own.

He quickly met opposition to this re­quirement.

“I was persuaded that that was a little too prescriptive… That localities all have different needs and should develop their own policy,” Levine said.

John Jones, executive director of the Virginia Sheriffs’ Association, said he sup­ports HB 246 because it would offer a “lo­cal option” and allow police departments to adopt a policy that best suits them.

However, the bill has been criticized by the Virginia chapter of the American Civ­il Liberties Union, which first raised con­cerns about a lack of uniformity among the use of body-worn cameras in 2015, when the organization reviewed the mod­el policy of the VDCJS and 59 body cam­era policies throughout the state.

It concluded that none of the policies, including some from Southwest Virginia police departments, fully address multi­ple issues of concern, including how the devices are used, privacy concerns, offi­cer accountability and how long videos should be kept.

“The lack of thorough, consistent pro­tocols to assure citizens of the common­wealth that their rights are being protect­ed no matter where they live or when they cross jurisdictional boundaries threatens, rather than protects, the public interest,” said Claire Gastanaga, executive director of the ACLU of Virginia.

Johnson said a universal policy would make it easier on lawyers who are re­quired to watch hours of body-worn cam­era footage.

In 2019, the Virginia Criminal Justice Conference surveyed nearly 500 public defenders and court-appointed attorneys on the impact that use of body-cams has on their workloads. The results found that 93% of public defenders have dif­ficulty in finding time to review all the footage, and 73% said they were unable to do other case-related work.

“We have some offices that represent multiple jurisdictions,” he said. “It would certainly be advantageous if four or five different law enforcement agencies that they’re dealing with have the same poli­cies and procedures.”

Levine agrees that uniform guidelines would offer bureaucratic and adminis­trative ease. But he noted that as long as localities have the freedom to establish their own policies, the VDCJS can better determine a universal policy to introduce down the road.

“My hope is in time we will see that the policy in Danville was a really good one and in Norfolk was a really bad one and Alexandria was somewhere in between, and then VDCJS can learn from local ex­periences, from different local experienc­es and come up with the best guidance for the future so that maybe in 10 years it will all meld into a uniform policy,” Levine said.

In September, Fairfax County became the latest locality to adopt body-worn cameras in the commonwealth. Under a unanimous vote by the Fairfax board of supervisors, the county moved to purchase 1,210 body cameras for its police force.

“It’s about accountability,” said Super­visor John Cook, who introduced a motion to spend $11 million over the next three years to buy the body cameras, train offi­cers and hire 34 people to handle the new equipment.

HB 246 passed in 62-38 and 36-3 in the House and Senate, respectively. The bill is now on Gov. Ralph Northam’s desk.

If signed, it would go into effect July 1.