Lawsuit Against Denver Police Camera Seizure Raises Questions About DPS Video Policy

A civil action was filed this week accusing District 6 Commander Tony Lopez of violating protester Jessica Benn’s constitutional rights when he seized her cell phone as she recorded her husband’s arrest last April. The suit claims that Lopez and the Denver Police Department violated her First Amendment right to record “newsworthy events” in a public place.

Ironically, this January the DPD began disseminating wearable cameras to officers in the name of transparency. The program rolled out first in Lopez’s district, and the commander openly praised its arrival as a way to improve police relations with the public. But considering the discretion officers are given in activating the new gear, those cameras could fail to document the moments when documentation is most needed. 

The high-profile deaths of Michael Brown, Eric Garner, Freddie Gray, Sandra Bland and others sparked a movement of protests across the country; among other things, they call for transparency as a way to help end police brutality. Jessica Benn and her husband, Jesse, were participating in one such event on April 29, 2015, when a fragment of her experience with the DPD was captured in the following video:

Video Credit : Jonathan Cunningham

Digital media has become a symbol of this new wave of civil-rights activism. From short clips like the one above to the emergence of professional live-streamers, primary-source video is now part of the fabric of protest culture.

While citizen media has emboldened activists in their confrontations with police, cameras have also become part of the proposed solution to curb brutality during patrols and protests. In its white paper on the subject, the ACLU says that wearable cameras “have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse.”

In 2014, the DPD ran a 21-week pilot program to test Taser brand wearable cameras. On January 8,  the department announced the gear’s official rollout beginning with the gang unit, traffic officers and District 6, which is headquartered on East Colfax Avenue between Washington and Clarkson streets.

Denver Police Department's Emmy-award-winning Informational/Instructional Segment

“When we first got them,” said District 6 Commander Lopez at one of his monthly public coffee meetings, “you never heard cops whine so much: ‘Oh, my God, Dick Tracy gadget,' this and that.” But his officers learned quickly to appreciate the new technology, he added.

“The second day we had it," Lopez continued, "I had a female officer who helped with a traffic stop, and they had a female in the car that was a drug suspect. They searched her, they didn’t find any drugs, and they let her go. She calls an hour later and she alleges that our female officer had sexually assaulted her. That’s a HUGE allegation.” But footage from the officer’s body camera quickly proved that the accusation was bogus, he added: “That would have been a three-month investigation, minimum.”

According to the DPD policy, police officers are required to activate their cameras during “pedestrian, citizen and/or vehicle contacts,” “reported weapons calls,” “when engaging in a foot chase,” “any encounter that becomes adversarial,” “to assist in documenting warrantless or consensual searches,” and in “any situation that the officer believes the use of the BWC would be appropriate or would provide valuable documentation.”

According to the Police Foundation, both police and the public might act differently under the eye of official cameras due to a “fundamental tendency of rational beings to exhibit more desirable behaviors when they know [they’re] under surveillance.” But what if the camera isn’t rolling?

During the massive Super Bowl rally at Civic Center Park, there was just one arrest. A man allegedly threatened to stab a police officer, then disappeared; minutes later, a traffic cop and other officers began searching the area. The traffic officer drew his gun when they found the man sitting behind a nearby electric box, and the man was soon pinned and searched — while the traffic officer's helmet camera remained aimed straight into the air, as we captured in the photo above.

According to the DPD, there have been no instances of disciplinary action stemming from camera use — or failure to use a camera.

“We allow officers to react to situations safely, and then activate the camera once it’s safe to do so,” says Barb Archer, commander of DPD’s Operations Support Division, who adds that only three months into the program, the department’s expertise with the cameras is still developing. “We’re always working through kinks, but we still do expect the officers to follow the policy,” she says.

In a followup e-mail, Archer points out that the cameras are not fixed and could easily be moved inadvertently. "This is especially true during an emergency situation or physical action," she notes. "The policy accounts for these variables, and when not intentional, are not violations."

And the cameras have definitely been rolling. According to Information Officer Doug Schepman, the department has racked up three terabytes (that's 3,000 gigs) in their encrypted cloud storage over the past three months; the city is paying a million dollars a year for the service. To keep the cost and capacity from increasing, the media is only stored for sixty days — in accordance with the City and County of Denver's retention policy. That means that any DPD camera documentation of the Super Bowl protest is now gone.
Denver Police Department

DPD officials say their body-camera policy is a “living document” that will have to be refined as the department deals with individual incidents and gets feedback from the public.

Even if it comes in the form of lawsuits.