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Police Body Cameras – What’s Ahead

Recent national and local news stories have brought to the forefront of public attention the issue of police body cameras. Cruiser cameras have been widely used in Maine for many years. The use of cruiser cameras has been welcomed by the law enforcement community; cruiser cameras have almost universally supported the steps taken by Maine police officers. This is a testament to the outstanding caliber of the men and women of Maine law enforcement.

In light of the significant national focus on the issue of officer involved shootings, there has been substantial national debate about body cameras. In Maine, many police departments are now embarking upon the institution of body cameras. South Portland has recently adopted a policy which now has its patrol officers wearing the cameras. Portland is currently putting together a pilot project which should have some of its officers wearing cameras later this year; the use of cameras may be department-wide sometime in 2018.

As people are discovering nationally, and as departments in Maine that have started to utilize cameras are finding out, the use of body cameras is not as simple as purchasing the cameras, strapping them on, and going to work. There are many technical and legal issues that come into play. When a department decides to institute body cameras, the prudent course is to proceed in a measured manner. First, there is a question of funding. Second, the right cameras must be purchased. If possible, it makes sense to purchase cameras that can sync with cruiser cameras. Third, as discussed in greater detail below, the agency should work with its union representation. Of paramount importance is that all parties invested in the issue should have a voice in the development of the policy.

There are several significant issues that should be understood and addressed by the involved parties. First, just as with cruiser cameras, there will be limitations. Even if the camera functions properly and is recording at the scene of an event, there may be obstructions in the view of the camera. Further, the camera can only record the roughly 180° view of what the officer is looking at. If there is only one camera in play, there may be key events that the camera will not record.

A second key issue is one of privacy. Obviously, there will be times during the day when the officer will be engaged in personal activities which should not be recorded. More importantly, even while in the field engaging in law enforcement activities, there are many events which should not be recorded due to privacy concerns of the citizens in contact with the officer, particularly some witnesses and victims. These privacy issues must be looked at closely while putting together the policy.

The threshold question for law enforcement unions is whether to support or oppose the use of body cameras. I have found that to a very significant degree, Maine law enforcement officers are not opposed to body cameras; in fact, they welcome the transparency. However, I am often faced with the question of whether or not a union could, if it desired, preclude the adoption of the body camera policy. This is an unsettled area of the law, both nationally and in Maine. Under Maine labor law, if the public employer desires to change a “working condition”, it can only do so after negotiation; it cannot do so unilaterally. On the other hand, an employer is authorized as a management right to change most work rules. The demarcation between working condition and a work rule is not always clear. The scope of the management rights clause in the particular collective bargaining agreement may be relevant to this analysis.

This issue has been fought about nationally with no clear resolution. In New York, the police union alleged that body cameras could only be adopted after agreement with the union. Litigation ensued and it was resolved with the agreement to pay officers an additional one percent in pay. In Boston, the police union attempted to get an injunction to prevent the use of body cameras after it claimed that the City violated an agreement regarding a pilot project. The injunction was denied, however, the court specifically left open the labor issues to be resolved in another forum.

Although far from certain, the Maine Labor Relations Board, or the Maine courts, could determine that the institution of body cameras is merely a change in the work rules which could be imposed as a management right. However, this should not mean that the union does not have a seat at the table when the issue of body cameras is being considered. The requirement of body camera utilization is significantly impactful upon the officers such that, at a minimum, the union has a right to what is called ”impact bargaining”. The union should be entitled to negotiate the impact that the use of body cameras has upon the work life of its members; this will provide to the officers a voice in the development of the policy.