In general, courts have held that Fifth Amendment protections against self-incrimination pertain to testimonial evidence, not broadly to any possible evidence that might be incriminating.
The Fifth Amendment does not extend to physical evidence or other non-testimonial evidence, even if such evidence is potentially incriminating. For example, courts have held that things like blood samples, fingerprints, handwriting samples, and even video or audio recordings do not fall under the protection of the Fifth Amendment because they are not considered testimonial in nature.
The report notes that it is the police chief, not a lawyer representing him, who is making the preposterous argument that the Fifth Amendment justifies his conduct. Any lawyer who tried to make that argument would be made a laughing stock.
Indeed, I would think that this internal affairs report, where the chief is essentially admitting that he knew he'd done something wrong and was trying to prevent incriminating evidence from being recorded, would be pretty damning in front of a jury, because it establishes that he was well aware of the recklessness of his conduct.
While I agree with OP that this is a clear cut case of no 5th amendment protections, I can't agree with your reasoning: the fact that police officers have qualified immunity means that in theory they can, in fact, plead the 5th when charged with something that would fall outside of the qualified immunity. We've had several high-profile cases of police officers being charged with murder recently, and I don't believe a single one was compelled to testify against themselves.
> they can, in fact, plead the 5th when charged with something that would fall outside of the qualified immunity.
True, but this is not an arbitrary process, it must actually be adjudicated, which is where I would expect the protections to apply. The judge could, after removing the immunity, then decide that the bodycamera of the incident cannot be submitted into evidence without further proceedings.
Right, but that's where OP's point that these don't count as testimony comes in anyway. Qualified immunity does not imply no 5th amendment protection, so the question of whether these count as testimony will come up because pleading the 5th is possible.
They weren't acting in the scope of the job that qualified them to have immunity. If they were, it would apply, and seemingly they could testify about that specific job duty that they are unable to be prosecuted for.
> Since police officers enjoy blanket qualified immunity they absolutely do NOT have 5th amendment protections when it comes to their jobs.
Qualified immunity for police is a civil liability doctrine and not relevant to criminal charges.
The 5th amendment most certainly applies to criminal charges brought against any citizen, police included. AFAIK, it is applicable in civil lawsuits as well in order to protect a defendant from testimony being used against them in future charges, although adverse inference can be surmised in civil cases.
Right, and then they just enjoy defacto immunity in the criminal system due to their proximity to the other arms of justice (judges, prosecutors, etc).
So that hardly ever matters, even if it is technically possible.
In the political arena of recent years, lawyers and judges "being made a laughing stock" has not turned out to the be the deterrant it was once thought to be.
It was never a deterrent. There was a whole generation of old white guys who wrote phrases like "emanations from penumbras" with a straight face--waving their hands to establish what their legal analysis could not--who are held in high esteem today.
Douglas' "emanations" argument was that the right to privacy can be inferred from other enumerated rights (First, Third, Fourth, Fifth, and Ninth Amendments), i.e. a constitutional interpretation that unenumerated rights exists. Arguments against implied but unenumerated rights in the constitution can easily be made, but summarizing this as hand wavy leaves out a lot of detail.
The law is far more rigorous today than it was 50 years ago. The dumbest legal theory in recent memory, that the vice president can refuse to certify the election, is more rooted in in the constitutional text—the 12th amendment does assign the vice president at least a ceremonial role in the process—then a bunch of established mid-20th century precedent. Which is not to suggest that the VP certification theory isn’t terrible—it is. But at least it pretends to be a legal argument, based on constitutional text, rather than philosophical or sociological braying.
The fact that the 5th protects from self-incriminating, WTF is a police chief saying officers are doing that would be incriminating? Like what an absolute asshat of a position to take.
The question I always ask is, why is there even an off button? It defeats the entire point of the camera as it’s meant to keep cops honest and not abusing the inherent power of their position.
When they go to the bathroom. If they have to take a personal call. This police chief is an idiot, but we shouldn’t let him let us dehumanise police in general.
Mentioned on the a similar comment regarding bathrooms. I think there's other ways to engineer a mutually acceptable solution. Just requires some intent and planning. The off button is just rolling over on accountability when it can be used at will. It's the lazy approach and it's absolutely a byproduct of them not wanting accountability yet being the ones procuring body cameras (eg. they asked for off buttons)
They should be under surveillance that they cannot disable 100% of the time they are receiving tax money, full stop.
Schedule bathroom breaks and have the devices shut off then for a defined period of time. Stagger them to make criminal conspiracies harder. Prohibit fraternizing with coworkers in off hours on penalty of termination. Automatically make public all video and audio surveillance more than 180 days old.
Talking to an informant or source. Having that recorded might make them vulnerable to retaliation or more reluctant to talk to the police because of the fear of retaliation.
The theory of police since Sir Robert Peel created the Met has been that the links between the police and the community they serve are the most important thing. It is the connection between the force and the people that provides them with the information to prevent crime from happening, to identify them when they have happened, and to solve them once they have been committed. So these links and friendships should be the basis for the the philosophy of policing in the past centuries. And those could indeed be compromised by being recorded.
Modern American policing doesn't work, and seems to this outsider to oftentimes be more based on a military occupation force than a police living inside their own community, but this is how it is supposed to work.
I don't buy this argument. As an informant how can I be absolutely sure it's not recording? The only way to be certain it's not recording is to not bring it to the 'meeting'.
Why should someone betraying their community's trust be protected from reprisals? We've seen how the police operate our whole lives. Collaborating with occupying armies has always carried a dangerous social cost. It's absurd for a snitch to think they'd be insulated from the social costs of betraying their community.
When body cameras first rolled out, someone (an actual person) had to review the footage. Officers had to wait for that review to be completed before ending their shift. If I recall correctly, that wait was overtime at first and then policy was modified and it became unpaid time.
No offense, but that _sounds_ like a super-specific policy :)
Also, how would that even work? Is there a second person who's watching the first cop's entire day? Like, even at 8x speed that's an hour for to watch an 8 hour shift.
It seems like a more reasonable / likely policy is that the video footage is automatically archived and then deleted after a reasonable time (3 months? 6? a year?) if it's not requested by anybody.
That way someone can request the relevant footage when a (hopefully infrequent) complaint is made, possibly after the requester has gotten a lawyer (etc), but the 99% of the footage that isn't useful never consumes anyone's time ("Watch as Officer Smith.. PATIENTLY WAITS FOR THE LIGHT TO TURN GREEN!!!1!!!1" :) ).
It can absolutely vary by department. However, the NYPD historically has set trends other departments follow.
From their Patrol Guide, below is what an officer is to do with video before their next tour of duty. My local department adopted this language almost verbatim.
These cameras are not upload and forget it. I'd encourage you to read on some of this as your comment "how would that even work" tells me your jaw is about to be on the floor when you read about the levels of red tape attached to these. To be clear, I'm pro camera and accept these costs of oversight. That doesn't mean the system cannot be improved.
Fun, but sarcastic idea: YouTube is filled with First Amendment Auditors. @AuditTheAudit has 818,495,408 views... let's let departments upload and have would be FA auditor viewers review, and if needed, tag videos for Internal Audit review. The People were going to give their time away anyhow, might as well save some fellow tax payers money... Wait, I take this back. I can see the officers now starting the body cam footage to talk about Better Help and Express VPN... never mind!
NYPD Patrol Guide 212-123:
16. Access the video management system on the Department Intranet or
Department smartphone to classify videos based upon the nature of the event.
a. Select one category for BWC video retention from the dropdown
list in the following priority order:
(1) Arrest,
(2) Homicide,
(3) Summons,
(4) Investigative Encounter, and
(5) Uncategorized.
b. Document the nature of event from dropdown list (e.g., EDP, DV
incident, home visit, etc.),
(1) If the nature of the event cannot be selected from the
dropdown list, enter a description of the event and include
the associated ICAD number.
c. If related to an arrest, enter the complete arrest number, beginning
with the borough letter designation in the appropriate field, and/or
d. If related to a Terry Stop/Level 3 Encounter not involving an
arrest, enter the Stop Report number in the appropriate field.
17. Categorize all BWC videos by the end of next scheduled tour
Cops radio dispatch for everything, dispatch could disable it during their breaks. Simple checks and balances.
This might not be the ideal solution, it's the one that I thought of in 20 seconds of reading your response - which admittedly, I hadn't even considered. But instead of taking this as an absolute solution please take it as the, "maybe we just need to put some thought into things and we could figure out the better solution that doesn't involve an on demand off button" because that is essentially shrugging off the accountability concern most citizens have.
Probably not. But, no less than she'd want to talk about it in front of a jury which we completely accept as part of the judicial process.
My opinion is this is a bit of a straw man argument. Video and digital recordings are just increasingly part of the modern world. Everyone, victims included, need to come to terms with that. And, in turn, agencies need to secure the footage and make sure victim footage remains private, just like any evidence needs to be protected/private. Are there any cases of footage like this being hacked/leaked without the victims consent? While possible, it shouldn't hamstring our police policies around bodycams. It's also a conversation that doesn't necessarily need to occur with the uniformed cop in the field. The officer needs to take her in to the station and have that conversation with a detective and such. It's almost always recorded there (AFAIK in these types of crimes.)
This is why abolitionists were mostly always against body cameras from the beginning. They would never have allowed them to become widespread without a way to control the usage of the camera and release of the footage. It is just another thing they can use against you but is powerless against them. It was never going to be a tool of accountability.
Tools and training aren't the problem with police, tools and training won't fix the problems with police.
Nah. Being a police officer has implicit trust and, trivially and obviously, responsibility to the community served that being a private citizen does not.
Pretending they’re the same, or that being an officer is essentially identical to any other profession, is absurd.
The Fifth Amendment does not extend to physical evidence or other non-testimonial evidence, even if such evidence is potentially incriminating. For example, courts have held that things like blood samples, fingerprints, handwriting samples, and even video or audio recordings do not fall under the protection of the Fifth Amendment because they are not considered testimonial in nature.
The report notes that it is the police chief, not a lawyer representing him, who is making the preposterous argument that the Fifth Amendment justifies his conduct. Any lawyer who tried to make that argument would be made a laughing stock.
Indeed, I would think that this internal affairs report, where the chief is essentially admitting that he knew he'd done something wrong and was trying to prevent incriminating evidence from being recorded, would be pretty damning in front of a jury, because it establishes that he was well aware of the recklessness of his conduct.