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Body Worn Camera Video

Good criminal defense attorneys spend a lot of time watching videos from body-worn cameras, body-mounted cameras, dashboard cameras, and surveillance systems. When the video isn’t provided as part of discovery, the criminal defense attorney might need to spend time tracking it down.

The use of these body worn cameras are increasing. In early 2020, the Tampa Police Department had 60 body worn cameras. In June of 2020, the city council approved 650 additional body worn cameras. Shortly after that, officers with the Tampa Police Department were trained on how to use body worn cameras correctly.

This article discusses some of the most common problems that arise when a criminal defense attorney is trying to get a video.

Why Did the Officer Turn the Body Camera Off?

In early 2015, the Pasco Sheriff’s Office (PSO) adopted a full-scale body camera program. Every Deputy Sheriff on patrol in Pasco County wears a body worn camera.

Unfortunately, the deputies have become very good and turning the video equipment on and off when it suits them. Be aware that the officer might write the following statement in their report:

“My Body Worn Camera was activated during this incident and captured events during the investigation; however, the camera footage may have been paused or interrupted if taking up a static post and/or during the passing of sensitive, tactical, or confidential information.”

What good is the body camera if the officer can decide when to turn it on and off during the investigation?

Release of Video to the Person Being Recorded

A video can be released to the person being recorded or their representative, under F.S. 119.071(2)l(4)b (body worn camera footage). Whether the case is criminal, civil, or administrative has no bearing on the release of the video.

Requesting the Video through a Public Record Request

Although the prosecutor should turn over all exculpatory evidence, the officer that has the video might not turn it over. Officers can be very creative when they are worried about something shown on the video.

If you suspect that body camera evidence will be helpful to the defense, make a public record request directly to the agency that has possession of the video so that it is not destroyed at the end of the 90 day retention period.

If you request a copy of the video from the agency, the prosecutor is often alerted to that fact. Sometimes the video evidence might hurt your case, so get your client’s written permission before requesting the video.

The prosecutor with the State Attorney’s Office has an obligation to provide discovery under Rule 3.220, Fla. R. Crim. Pro., if the defendant files a demand for discovery. Additionally, constitutionally required Brady material must be produced regardless of the defendant’s election to participate in the discovery process.

So after you make the public record request, send the request to the prosecutor and ask for their assistance in determining if any Brady material is contained on the requested video.

The prosecutor will often contact the agency and tell them to release the video to you so that they can avoid litigating a motion to compel.

Excessive Charges, Fees, and Costs for a PRR

Recently, I’ve run into a problem with the Tampa Police Department claiming that it has to blur the faces of all officers on the video before it can be released. For example, in October of 2019, the custodian of a video at TPD sent my office an email explaining:

“…Our video tech estimated several days to blurr any/all officers who are in the video. It is a very time consuming process. For BWC and dash cam of your clients incident, he spent 20 hours @ $30/hour as there was extensive blurring due to officers in and out of frame, moving, etc. $600 is the cost for his time for both videos…. “

Who can afford $600 for a public records request (PRR) for two video? If you ask me, it makes no sense that TPD is blurring the faces of police officers on videos unless it is for the purpose of discouraging the public record requests by making it cost-prohibitive.

That time and money could be put to better use. More importantly, innocent people will be convicted of crimes they did not commit if getting to the truth becomes cost-prohibitive.

Section 119.071(4)(d)2.a., F.S., does exempt “home addresses, telephone numbers, dates of birth, and photographs” of law enforcement officers. However, TPD is taking the position that “[a] video is nothing more than a series of photographs.”

That argument is incorrect. Consider the fact that Section 119.07 contains:

  • the word “photograph” at least forty (40) times;
  • the word “video” at least twenty (20) times;
  • the word “image” two (2) times;
  • the phrase “home addresses, telephone numbers, dates of birth, and photographs” at least sixteen (16) times.

For example:

  • Section 119.071(2)(h)1.c. provides: “A photograph, videotape, or image of any part of the body of the victim of a sexual offense… regardless of whether the photograph, videotape, or image identifies the victim.”

Furthermore, the term body camera is defined in 119.071(2)(l)1.a as “a portable electronic recording device that is worn on a law enforcement officer’s body and that records audio and video data in the course of the officer performing his or her official duties and responsibilities.”

Nowhere in that definition does it say that a body camera records “photographs.”

Expressio Unius Est Exclusio Alterius

First, the plain language of the statute is clear. Furthermore, the basic rules of statutory construction apply.

The most fundamental canon of statutory construction provides that “the express mention of one thing excludes all others.” This cannon is called “expressio unius est exclusio alterius.”

It means that when a statute includes a list of specific items, then the list is presumed to be exclusive. So the provision in the statute applies only to the listed items and not to other items not listed.

Clearly the legislature knew the difference between the word photograph and video. Each word has its own definition and you can’t lump them in together. A video is clearly not a series of photographs.

How much money is TPD spending on its Body Worn Camera analysts to redacted the so-called confidential information?

This article was last updated on Thursday, August 6, 2020.

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