• thomascantley

Reflections on Denver's protests, police body cameras, and SB 20-217

After weeks of protests in Denver, Colorado's police reform bill, SB 20-217, was signed by the Governor on June 19th 2020. Shortly thereafter the protests in Denver ended. But what does the police reform bill actually do to address policing practices?

The bill includes a requirement that police officers in Colorado be equipped with body cameras by 2023. However, the bill also provides police a variety of loopholes to circumvent this requirement.

Police need not wear a body camera if: (1) They are recording personal information that is not case related; (2) When working on an unrelated assignment; (3) When there is a long break in the incident or contact that is not related to the initial incident; (4) During administrative, tactical, or management discussions; (5) When working undercover. The bill creates a rebuttable presumption that unrecorded statements not exempted by these exceptions are inadmissible at trial, but this rule does not apply if either the body-worn camera was not activated due to a malfunction the officer was unaware of, or the body-worn camera did not record due to a malfunction the police was unable to rectify even if the officer was aware of it, "provided that the law enforcement agency's documentation shows the peace officer checked the functionality of the body-worn camera at the beginning of his or her shift."

While all this sounds reasonable on paper, an experienced criminal defense attorney knows that this is likely to be problematic in practice. I have been questioning police officers about the failure to activate body-worn cameras for years, and it is common to hear claims that the unrecorded material was not relevant to the investigation, or claims that the body camera malfunctioned. Unfortunately, the bill doesn't do much to address the gamesmanship that has always existed with body-worn cameras. A statement certifying that the body-worn camera was checked for functionality will be copy-pasted into police reports, and if there is something the police do not want to record, then they may simply claim that it occurred during a "administrative, tactical, or management discussion," or claim that the body camera malfunctioned. And it is unclear how the presumption of inadmissibility might be rebutted - but certainly, this will be play out differently in different courtrooms. I have found in the past that unrecorded parts of investigations that are favorable to the accused seem to conveniently fall within these exceptions, and a judge may simply take the police's claims at face value.

A good criminal defense attorney will not rely on this bill and assume that the police are properly complying with it. Many police officers will do their best to use their body camera's in accordance with SB 20-217, but it is not a criminal defense attorney's job to assume that an investigation was conducted properly. It will still be necessary to carefully analyze the police recordings of an investigation, and challenge an officer's failure to record. I have found that even though the failure to record may not be significant to a judge prior to trial, it is almost always significant to a jury at trial!

Kudos to Corey Contee for the photograph.

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