Opinion | Say 'no' to pre-review of body-worn camera footage

Portland Police Association wants PPB to have ability to review footage before reporting force

by Eben Hoffer | 7 Mar 2023

In February, the Oregonian editorial board noted, rightly, that the police officers who beat Tyre Nichols to death were dismissed and charged only because there is video evidence of the incident. The board also noted this degree of accountability would not have happened in Portland because Portland Police Bureau, or PPB, officers do not use body-worn cameras, or “BWCs."

Indeed, we know what would have happened if Tyre Nichols had been killed in Portland because his story is so similar to that of James Chasse, killed by Portland police in 2006. Unlike the situation in Memphis, Chasse’s killers were not caught on video, kept their jobs and walked free. Perhaps BWCs would have made a difference for Chasse and his family, and perhaps they could for Portlanders in the future.

We have haggled over BWCs for years in this community. Now, in 2023, the city of Portland is under a federal court order to move forward on a BWC program. But the process is stuck in negotiations with the local police union, the Portland Police Association. Reasonable people may look at this situation and ask, ‘how did we get here, and what is ahead?’

The city is in a “settlement agreement” with the federal government because the U.S. Department of Justice, or DOJ, determined Portland police were consistently violating people’s constitutional rights by over-using physical force. (In this context, “force” means tear gas, bullets, punches, hitting people with cars and so forth.)

The DOJ sued the city over that behavior. To settle the case, the city agreed to institute changes at the PPB. Those agreed-on changes became a binding court order. The process of implementing those changes started over ten years ago.

Body-worn cameras were not part of that initial court order. But, while under the order, the city and the police association decided to start a BWC program on their own. The program they came up with was extraordinarily lopsided — it would have given officers broad access to footage in order to defend themselves or press charges against community members but restricted use by community members and even by the officers’ own supervisors. Very few Portlanders who were not police association members supported this plan, and it fizzled.

Body cameras did eventually become part of the court order because of events in 2020. Early that year, in the final year of the Trump administration, the DOJ announced the city largely made the changes required by the settlement agreement. With a judge’s approval, the whole case could soon end. But during the summer protests, PPB simply stopped keeping records of when and how they were using force.

In an agreement designed to end the PPB’s unconstitutional overuse of force, keeping records of the use of force — especially when keeping those records is not easy to do — is a really big deal. Not keeping records of force was a serious violation of the court order.

The DOJ hauled the city back to court over this violation. They decided together to add BWCs to the court order. If the city could not be relied on to keep written records of force, Portland police would now need to wear cameras so there would always be some record of each force incident.

Because the BWCs were being implemented for the express purpose of protecting people’s constitutional rights, the rules for the cameras would need to be more balanced than what had been proposed before.

The DOJ gave the city a short list of things the new BWC policy would have to include in order to be useful for protecting constitutional rights, and a reminder that ignoring the list would be unacceptable and would land the city back in court. The city took that list, wrote a draft policy, and went to the police association for negotiations to hash out the details.

That brings us back to where we started: After a year of negotiations, now months after the DOJ asked for BWCs to be in service on the street, the city and the police association have reached a deadlock.

What is that deadlock about?

The police association insists officers should be allowed to “pre-review,” which is to say to watch their and their colleagues’ BWC videos, before reporting on when and how they used force. The police association wants to “pre-review” in all force cases, up to and including when their members kill people.

But in their list, the DOJ has been clear “pre-review” must not be allowed in Portland. Instead, officers must document their use of force before watching the videos, and then add information to the report if needed. In cases where an officer kills someone, there would be no watching of the videos at all without the District Attorney’s say-so.

By insisting on “pre-review,” the police association is saying they do not think the federal government actually has the right to tell a local police officers’ association what their BWC policy should be — not even to stop that police association’s members from violating constitutional rights.

That is a big legal claim and the police association knows it. They say they intend to fight for it in the press, in State Arbitration, and all the way to the Ninth Circuit Court of Appeals — one step before the Supreme Court.

The police association has already started to make its case for “pre-review.” As the spin plays out over the coming weeks and months, it will be helpful to have facts to return to:

The officers who killed Tyre Nichols in Memphis were not allowed to ‘pre-review’ BWC video of the fatal beating. Memphis’ BWC policy does not allow “pre-review” in critical force cases without the signature of Police Chief Cerelyn J. Davis. As Davis explained, “If officers were allowed to view video footage, then they would have fashioned their statements based on the video footage as opposed to their real recollection of what actually occurred.”

To be explicit: Davis is saying if the officers “pre-reviewed,” they would have been able to coordinate their stories and omit anything they did that wasn’t captured in the video.

Allowing suspects to coordinate in this way makes prosecuting a homicide very difficult. No civilian suspected of homicide is ever allowed to watch surveillance video and discuss it with other suspects before talking to police.

The primary purpose and effect of “pre-review” is to give police a legal advantage when they face punishment for their actions. That is why the police association cares about it, and that’s why all Portlanders should care too.

Davis’ decision should also remind us “pre-review” is not a uniform national standard. Among cities of Portland’s size (like Memphis), about half of all BWC policies control “pre-review” in “critical” cases where police kill, seriously injure, choke, or shoot at a person. A smaller number of cities employ the same policy the DOJ has laid out for Portland, and require officers to first attempt to document any use of force from memory before consulting video.

Documenting force from memory is the current practice of the Portland police. Keeping the existing reports and adding video-informed postscripts would not make the reports less accurate.

However, watching video before writing a report from memory can harm the accuracy of a report because the legal standard for police use of force has everything to do with what the officer knew at the time they decided to act, not what they knew after watching the tape.

In the landmark case Graham v. Connor, the Supreme Court ruled “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

In a literal sense, “pre-review” is a practice of overwriting the on-scene perspective with hindsight. As the Tucson Police Department policy handbook explains:

“Viewing video, like speaking with a witness, is likely to distort or interfere with the officer’s memory of the incident, potentially undercutting the principles of Graham. The officer’s memory of the incident is critical, and is the best evidence of the officer’s perceptions at the time of the incident.”

Police association fighting for a “pre-review” policy among the least progressive in the country

The Mental Health Alliance thinks a homicide is a homicide. Everybody in this community — police and civilians alike — should have to face the same kind of meaningful investigation if they kill someone.

We think the police association’s intense commitment to “pre-review” speaks volumes about its priorities, values and character.

We think both the city and the DOJ have been poor stewards of their responsibility to protect the people of this city by letting this conflict drag on for so long.

And for you, the person reading this who cares: we think you shouldn’t despair. Instead, stay informed on this issue, speak to your neighbors about it, tell City Council what you think.

And finally, we ask you to join Mental Health Alliance in calling on lawmakers in Salem to put an end to the question of “pre-review” before the police association drives it to the doors of the Supreme Court. Contact the members of the Senate Judiciary Committee. Urge them to take up SB 236, institute uniform state-wide police force reporting and end the practice of “pre-review” not just in Portland but across the state of Oregon.

Eben Hoffer is a member of the Mental Health Alliance.

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