(photo: Ed Reed/Mayor's Office)
A new evidence-sharing agreement between the NYPD and its civilian watchdog agency around the department’s handling of police body-worn camera footage has the potential to significantly change the way misconduct investigations are carried out. But despite the NYPD’s recent commitment to greater transparency and cooperation, to be successful the agreement will require an element of trust in an interagency relationship marked by obfuscation and obstruction.
Under the new agreement, the Civilian Complaint Review Board will have more direct access to body camera video, which officials say will dramatically improve its ability to pursue police officer misconduct allegations. But the agreement also hints at the ongoing imbalance among the police department, the CCRB, and the public in terms of who controls footage captured by a system meant to make officers more accountable and policing more transparent.
In November, after months of negotiation, the NYPD and CCRB announced a memorandum of understanding establishing an intricate process that will allow officials from both agencies to view requested body camera video together without redaction, before it is subject to editing by the police department. The announcement closely followed a City Council oversight hearing and a series of articles by Gotham Gazette on the body camera program, including several on the CCRB’s struggle to obtain necessary footage.
“It is a real compromise and it’s going to let the CCRB do its job and provide effective, independent oversight of the NYPD,” said CCRB Executive Director Jonathan Darche in an interview with Gotham Gazette.
The CCRB is an oversight agency appointed by the mayor in partnership with the City Council and police commissioner to investigate civilian complaints related to excessive force and abuses of police authority, among other defined types of officer misconduct. The proliferation of body cameras across the police force gave advocates, reformers, and others hope that more misconduct claims could be verified or definitively dismissed.
In March, Mayor Bill de Blasio and then-Police Commissioner James O’Neill announced the full implementation of 20,000 officer-worn cameras to rank-and-file cops, and another 3,000-4,000 were handed out to specialized divisions later in the year.
Around the same time, the backlog of CCRB video inquiries skyrocketed and the number of the agency’s cases with pending requests roughly doubled. While CCRB investigators are relying more on evidence from the cameras to help substantiate claims, they are also having a harder time obtaining the footage. When they do, the footage is often censored or cut by the police department. In dozens of substantiated instances, the NYPD has falsely denied to the CCRB that it has body camera footage the Board has requested.
The new agreement calls on the city to create a “secure room” within CCRB headquarters that will function as an NYPD facility with access to the department’s BWC database. When CCRB investigators request footage, a representative will be present in the secure room while police officials search their system. That representative will be allowed to pass on notes about the raw video to CCRB investigators who can then request specific sections of tape. Once a narrowly described section of video is requested and subjected to NYPD editing, it can be shared outside the secure room.
“From neighborhood policing to body cameras for all patrol officers, this Administration has led a paradigm shift in the way our city is policed. We applaud the Police Department and Civilian Complaint Review Board for cutting red tape and working together to promote transparency and accountability,” wrote Olivia Lapeyrolerie, a spokesperson for Mayor Bill de Blasio, in an email.
The change is likely a big step forward for the police watchdog. Under the current system, the NYPD acts as the sole owner of body camera footage with complete discretion to censor and redact footage and the ability to delay releasing it to the CCRB from the outset. Officials say the new approach allows the CCRB to monitor the video transfer process from as close to the beginning as possible (once an inquiry is made). It also helps deter “false negatives” in which the NYPD denies the existence of footage in its possession, an ongoing concern and repeat problem for the CCRB.
In the most serious cases of excessive police force, the NYPD may still “lockdown” footage if it is part of an internal inquiry by the department’s Force Investigation Division. Footage under lockdown will be searchable by a CCRB rep but not shared with CCRB investigators until after the NYPD division’s investigation is concluded.
To the extent that it outlines the parameters for interagency body camera video sharing, the agreement is an acknowledgement of the NYPD’s de facto ownership of body camera technology and the evidence it records. It still leaves the NYPD with ultimate access to the secure room and the footage database, unlike in other jurisdictions where the oversight body has direct access to video without having to go through the police department.
"While the latest MOU between the NYPD and CCRB may provide quicker access to some footage for the CCRB, it cements the NYPD's unilateral control of footage, including the ability to redact and restrict footage as it sees fit,” wrote Kesi Foster, a spokesperson for Communities United for Police Reform, an advocacy coalition, in a statement to Gotham Gazette.
“The MOU makes no explicit allowances for survivors of police violence or their families to view footage and allows the NYPD to block CCRB access to footage in serious cases where excessive force is used - which are the exact cases that the public and CCRB should have immediate and unfettered access to footage,” Foster wrote.
Since the complete rollout of body-worn cameras, the NYPD has reserved the right to edit footage before release to the CCRB and the broader public (including the news media), saying state and federal privacy laws require it to do so (an NYPD policy memo issued in October, explicitly states this for release to the public, but not to the CCRB). The result has been a growing backlog of unfulfilled body camera footage requests to the CCRB that hamper its investigations, which need to be completed within an 18-month statute of limitations.
As of the end of October, the CCRB reported 574 cases (27 percent of all its investigations) in which body camera footage requests had not been fulfilled by the NYPD. Over half of those requests have been pending for more than 30 days.
The backlog and the NYPD’s ability to edit footage before turning it over to the CCRB have created a system where investigators are limited in what evidence they have access to, even when they are aware material footage exists. By contrast, the NYPD shares video of an arrest with prosecutors completely and almost immediately, suggesting that the new technology is being used more to prosecute civilians than investigate police misconduct.
The November agreement is a step away from that status quo. It creates certain checks on the NYPD’s ability to withhold or delay footage and improves trust in the body-worn cameras program as a police oversight system.
“There are a few takeaways from the agreement. The first is it’s going to significantly reduce the backlog once it’s fully implemented. The second is that it assures the CCRB that we are receiving all the relevant video in a case,” said Darche.
“It also takes the NYPD’s security concerns into account, and it assures civilians and members of the NYPD that their privacy rights won’t be violated,” he added.
The NYPD has maintained that, for releasing video to either the CCRB or the public, it must edit footage to ensure legally protected subject matter isn’t publicly disseminated. Police representatives have said the identities of minors and victims or survivors of sex crimes must be censored and any depiction of medical treatment redacted, pursuant to statutory privacy protections. Reviewing and editing footage is what causes the delays in transmitting evidence to the CCRB, officials say.
“One of the areas in dispute was the NYPD felt those statutes applied. We did not feel that those applied. The NYPD felt that blurring the faces of people allowed them to then release the video to us and that was a compromise we were willing to accept,” Darche said, referring to part of the agreement that deals with footage being shared outside the secure room.
The new agreement puts much more onus on the CCRB to request only the relevant footage as a way to reduce the burden on the NYPD to process the video. CCRB investigators will be required to “diligently conduct as many investigatory steps as reasonable” to determine whether potential video is relevant to their investigation before making a footage request, rather than submitting blanket requests for all potentially relevant footage.
“Under this agreement, CCRB investigators will obtain relevant records such as an arrest or summons associated with complaints prior to making a body-worn camera footage request, in order to make the search and viewing processes more efficient,” wrote Ethan Teicher, the CCRB press secretary, in an email to Gotham Gazette.
The additional costs to staff new positions in the secure room and to meet the additional investigatory requirements are yet to be determined, but officials think it will ultimately improve the process and lead to better, more coherent video searches.
Examining the raw footage “will be a shared responsibility between the NYPD and the CCRB, and it is the CCRB’s hope that involving Agency staff in the initial review of body-worn camera footage will provide additional, case-based knowledge that will make the process more efficient,” Teicher wrote.
“The CCRB will need to work with OMB [the Office of Management and Budget] and DCAS [Department of Citywide Administrative Services] for additional funding for the secure space. Initially, we expect both the NYPD and the CCRB to each have four staff members in the room, while the other terminals will be used by investigators tasked with reviewing the footage,” he added. The agency currently has roughly 100 investigators, according to a CCRB spokesperson in October.
In addition to a backlog of video request, the CCRB has reported a large number of false negatives in responses to requests for body camera video. In a July memo to CCRB board members, staff cited 147 cases where the police department said requested footage did not exist only to find out later that it did. In some cases the denied footage was leaked to the press, and in others officers under investigation reported reviewing footage that was previously said not to exist. As of July, the NYPD had acknowledged accidental false negatives in 19 cases, according to the memo.
“[T]he CCRB cannot accurately track the number of cases in which it received ‘false negatives’...because the Agency does not know what video the NYPD possess,” the memo stated.
The CCRB believes the new agreement changes that dynamic. “Having a presence in the secure room when a search is conducted should reduce the chance of generating a false negative,” Darche told Gotham Gazette.
While the agreement makes a commitment to involve the CCRB in the initial search for requested footage, it still establishes a lopsided relationship with the NYPD.
A footage search must be conducted by a member of the NYPD in the presence of a CCRB representative. Yet nothing under the agreement prevents the NYPD from accessing the secure room outside of established business hours, and allows the department to audit CCRB electronic access to the system. On the other hand, the CCRB will only have access to the room during agreed-upon hours and does not have the ability to audit the NYPD’s use of the room.
“As the secure room will be an NYPD facility, the Department will have access to it outside of business hours. However, the CCRB does not expect NYPD personnel will use the facility to work on CCRB-related matters without CCRB present,” Teicher wrote.
“The CCRB will not at this time be able to audit the logins at the secure facility,” he added. “If an issue is ever raised, the CCRB will make every effort to work with the Department to resolve it.”
The agreement does not go into effect until the secure room is built, after which other protocols will be established. The text of the agreement does not specify a timeline for that.
“We will continue to work with OMB and DCAS to secure the necessary funding for the facility, and hope to have it set up in the first half of 2020,” wrote a CCRB spokesperson in an email.
In an email to Gotham Gazette, Chris Dunn, legal director of the New York Civil Liberties Union (NYCLU), wrote of the new MOU, “we are concerned about how long it will take to get the new system up and running and about how much time this agreement gives the NYPD to turn over videos. A police department as sophisticated as the NYPD should be able to deliver videos in a matter of hours, not weeks.”
The agreement was hashed out under the administration of former Police Commissioner James O’Neill over weeks or months in the lead up to its announcement in November, which was first reported by the Daily News. It will have to be implemented under his successor, Dermot Shea, who was sworn in at the beginning of December after serving as Chief of Detectives, among other roles at the NYPD.
“I am confident this agreement between the CCRB and the NYPD will be preserved under incoming Police Commissioner Dermot Shea. This compromise is a step toward significantly reducing the body-worn camera backlog, ensuring police accountability, and allowing the CCRB to carry out its essential public safety mission on behalf of all New Yorkers,” CCRB Chair Fred Davie wrote in an email.
by Ethan Geringer-Sameth, reporter, Gotham Gazette