There’s position piece circulating out there on officers reviewing body camera videos. It looks like it’s been out for a month or so, though I just tumbled across it. The author is the Daigle Law Group, a Connecticut firm that advises and trains police management on different issues.

I couldn’t disagree more on the core points in the position piece. After describing the Graham v. Connor reasonableness standard in use of force cases, the position paper states:

“This is important to remember, when determining whether to allow an officer to view a video prior to describing his or her perspective of the event at the moment force was used, the high likelihood that such viewing will allow, even encourage directly or subtly, an officer to modify his or her description of the factors. This creates a perspective that is, in effect, unintentional untruthfulness. If we use this process to dilute the standard of review for an officer’s use of force, the courts may begin to reassess the concept of an officer’s ‘perspective.'”

What the Daigle piece completely misses is that many (or most) times, there are two impacts on an officer from the stress encountered in a critical incident: (1) An impact on perception (tunnel vision, auditory distortions, etc.); and (2) An impact on the ability to recall what the officer perceives.

Daigle is only concerned about the first of these, and argues that if an officer reviews body camera video, he/she may end up testifying to something they did not perceive, and that this will somehow weaken the Graham v. Connor standard. I disagree with both of those propositions. I don’t think officers will alter their testimony about their perceptions to fit the video, and find the suggestion pretty troubling. I also don’t see any threat to Graham v. Connor, a case which is alive and well and awfully healthy in the Supreme Court, particularly in light of last year’s Plumhoff decision.

But where I really diverge from the Daigle piece is that it doesn’t take into account how the stress produced by a critical incident can impact officer recall. That this occurs is without question. There’s lots of science behind it, a good portion of it developed by Bill Lewinski and his crew at the Force Science Institute. Anecdotally, after responding to well over 100 critical incidents, I can tell you first hand that in the vast majority of those incidents the ability of officers to recall what they have in fact perceived is impacted. That’s where the review of body camera video becomes so important — it can help the officer recall what she/he perceived, and make their initial statement more reflective of those perceptions.

Put another way, Daigle seems to assume that recall = perception. I think that science teaches us that assumption is wrong, and I know from personal experience that the assumption is wrong.

I’m troubled by lots more in the Daigle piece, and want to briefly address some of more problematic areas:

• Daigle suggests that the officer give a statement before viewing the video, with a supervisor then being allowed to write a supplemental report to clear up inevitable inconsistencies between the statement and the video. Daigle then glides over the heyday a plaintiff’s lawyer will have with those inconsistencies. However, this isn’t a minor point. I’ve heard a plaintiff’s lawyer argue against pre-statement review of videos for precisely the reason that it will give him more evidence when he sues the officer.
• Daigle inappropriately minimizes the way that others will play “gotcha” with any inconsistencies between the statement and the video. It won’t just be plaintiff’s lawyers playing the “gotcha” game, it will be members of the public and, in some places with less kind employment practices (and they exist), police administrators.
• Daigle relies on an “independent operational study” conducted by the Meyers Nave law firm of the 2009 BART shooting, but does not describe Meyers Nave as having an employer-side labor practice. Having litigated a case in Oakland against Meyers Nave, I can assure you, Meyers Nave is a good, aggressive employer-side firm.

You can tell from the length of this post that I’m concerned about the Daigle position paper, particularly if employers start to rely on it to make important decisions about body camera policies. There needs to be a robust discussion of all these issues, and the discussion should involve all those in the law enforcement community with something to offer on the issues. That means police management, management-side lawyers like Daigle and Meyers Nave, police unions, union-side lawyers, psychologists, use of force experts, and Section 1983 defense lawyers, among others.