Smile, You're on Camera

By: David J. MacMain, MacMain Connell & Leinhauser, LLC

In this age of body-worn-cameras, security cameras outside of businesses and homes, cell-phones, social media and thousands of news media of all forms vying for the ‘big story’ or a ‘new angle,’ police officers are under a microscope in all they do and say – both while performing their job, and even in their private life. As a former police officer turned lawyer who defends and counsel law enforcement all over the country, and as the proud father of a young police officer, I advise my clients to assume that absolutely nothing you do on the job is a secret from the outside world, and it is likely to be captured in whole or in part by some form of audio and/or video. What’s more, it is not safe to assume that what you do in your private life is private – it often is not. As the news media – both legitimate and fringe – has shown in recent years, there is an insatiable appetite for ‘bad cop’ stories . . . ‘good cop’ stories – not so much. Further, in the crucible of litigation the net is often wide and deep as to what is ‘discoverable’. Courts often afford great latitude to allow plaintiffs (and indirectly the public) to explore the

David J. MacMain is the Managing Partner of MacMain Connell & Leinhauser, LLC in West Chester, Pennsylvania. www.macmainlaw. com. David is a former Pennsylvania State Trooper who has been representing law enforcement agencies and officers for over 30 years. He defends high-profile law enforcement and corrections cases throughout the country and has successfully tried over 150 jury trials. He can be reached at dmacmain@macmainlaw.com or 484-318-7703.

David J. MacMain Defendant officer’s background, public social media, organizations, and cellphones. An early and prominent example of this is the O.J. Simpson criminal trial in which the defense attacked Detective Mark Fuhrman not so much on his efforts in the murder investigation, but on his racist musings as captured on audio tapes. In recent years, the criminal defense bar has offered continuing legal education courses on how to mine nuggets to attack the arresting officer’s credibility from personnel files, social media and the like. Finally, I have seen in the §1983 federal civil rights cases that I defend for police officers all over the country, examples of how bad or questionable behavior by officers – perhaps wholly unrelated to the case and issue at hand - can shape and overwhelm the incident and cause embarrassment to the officer and department. This article is intended to cover and prevent the kinds of things that police officers and administrators need to be mindful of and avoid at all costs.

VIDEO – THE GOOD, THE BAD AND THE UGLY

Many citizen-police interactions are captured in whole or in part by some kind of video, and in some instances, by multiple sources. These can range from dash-cams, to body-cameras, to cellphones, to business security cameras, to drones. These recording can be ‘good’ and absolve the officer of any wrongdoing and lend support for criminal charges of the

suspect; can be ‘bad’ which is often a relative term as the recording may contain shades of gray that lend itself to differing views depending on the viewer; or can be ‘ugly’ and show the officer behaving very badly. Below are some examples of each. It was a good thing when the officers I was defending in a civil suit had a holding cell video of the plaintiff/arrestee who was claiming he did nothing wrong to warrant his arrest and resulting use of force, apologizing to them for his stupid behavior on the streets and that ‘he deserved to get his a** whooped.’ It was good thing when the Plaintiff/ wife, who claimed in the later litigation that responding officers overreacted to her 911 domestic assault call and unjustly entered her house to confront and later shoot her husband when he emerged from the basement with a rifle, was confronted with the actual 911 call in which she frantically screamed and begged for the police to help her because ‘ my husband attacked me’, ‘ he is going to kill me’, he’s got a gun’, ‘hurry!!’ And finally, it is more often than not have prevented lawsuits, disproven allegations of misconduct, and helped secure guilty pleas and convictions. It was more bad, than good when an iPhone video captured the shooting of a man confined to a wheelchair, or an officer kicking a suspect in the face who was on his knees with hands raised. I say more bad, than good because the snippet showing the use of force, as broadcast all over the local and national news, looked bad and painted the officers in a bad light. However, the portions of the incident that proceeded each of this video snippets – the wheelchair bound man had, in a drug induced stupor wildly fired a handgun in an urban neighborhood and was later found to have that same handgun

a good thing that body-cameras far in his waistband, and the facekicked suspect just robbed a strip club at gunpoint and had reached into his waistband several times before the infamous face-kick – tell a different and more complete story. However, the damage in the public and potential jury pool, and to the officers was already done when the bad snippet was widely broadcast. That is not to say that an officer needs to hesitate or think ‘how is this going to look?’ when her/his wellbeing is in jeopardy, but the reality is that video of an incident can look bad, even if an officer is justified and acts properly. And then there is the UGLY- the audio or video that just cannot be explained, justified or looks just plain wrong. Take for example the officers who after a lengthy and dangerous pursuit, can be seen high fiving one another as they gloat over the crashed suspect vehicle in a ditch. Or the officers who congratulate themselves on tape on a ‘good shoot’ after the suspect is shot and killed and lay dead in the street. There may be a necessary shot, a justified shot or a life-saving shot, but a ‘good shoot’ that ends someone’s life (no matter how justified) is not to be gloated over or self-congratulated – a jury will be offended, and it paints the officer(s) as callous and disrespectful of human life. Three final points about video of any sort. First, because of what I do currently and did in a former life, I understand that the use of force is necessary and is not always pretty to watch. But I think there is a negative shock value or lack of understanding when most lay persons see the reality of an officer using force. I liken it to the Vietnam War whereas it was the first war that the public watched on their television and could see firsthand the harshness and violence that is war. It was no different or more violent than prior wars, but it was hard to watch, and many people reacted negatively and recoiled. So too with the prevalence of videos showing officers using force – something lay people have not previously seen. It is not pretty, pleasant, or easy to watch, but it is no more violent than it was 10, 20 or 30 years ago. However, in the past, the incident and force used was described in reports, and by

the officers and witnesses verbally – it was not replayed and shown via video on the evening news. I do think officers need to be mindful of this and be aware that there may be an initial negative reaction to even the most justified uses of force that need to be overcome and explained. Second, officers would be well advised to be mindful that they are always ‘on camera.’ They need to watch making off-hand comments, profanity, off-color jokes, demeaning statements, a lack of compassion, and a general sense of looking, saying or acting like a jerk. Conversely, being (or at least looking) extra-patient, fair, compassionate, professional and humane will go a long way to not only avoiding a suit, but portraying the officer in the best light possible and buying her/him some good-will and understanding with the viewer. Third and finally, the only thing worse than bad video, is missing video. Police departments must have rigorous and consistent retention and preservation policies for all forms of video and audio evidence. Consider a case I defended several years ago wherein a fight between the suspect and the officer erupted in the processing area with the suspect being charged with several crimes for what occurred in the holding area, including assaulting a police officer. The suspect claimed that the officer got him off-the-street and behind closed doors wherein the officer was going to teach the suspect a little lesson about respect. When the processing area video, which captured the incident was requested, it was discovered that key portions of the video were ‘compromised’ and recorded over with several uninvolved officers claiming that they had watched it to see what had happened, but that it was fine when they viewed it. No one knew or admitted what had happened. While in my heart-of-hearts I believed that the ‘compromised’ tape was a stupid mistake of someone hitting the record button accidentally, to the rest of the world, it looked like a purposeful destruction of evidence. Video and audio evidence must be guarded, preserved, protected and saved as its ‘compromise’ or destruction can be fatal.

NICKNAMES, TATOOS AND SLOGANS

Police departments are paramilitary organizations, and many officers have served and continue to serve our nation with their military service. This is a good thing and brings many wonderful benefits to law enforcement – prior training, selfdefense experience, discipline, espirit-de-corps, self-sacrifice, and an understanding of the chain of command. However, as the public of today is increasingly expecting a ‘kinder and gentler’ police force, some of the spill-over from the military to law enforcement can be problematic. I have seen this in slogans on shirts such as “Don’t F*@# with ____ Police Department” or “You Mess With The Best, You Lie Like The Rest [with the agency’s name underneath]”, or “Make My Day [With a gun and the police department badge underneath]. This can come in form of a squad nickname such as “The Killers” or “Wolfpack”. It can come in the form of an officer’s tattoos – that have an offensive picture or nickname or something that a plaintiff’s attorney would argue appears to glorify violence or death. I have seen it on weapons – particularly with special units such as SWAT-- where there may be a tally of how many ‘kills’ or contain some offensive “artwork.” And it can come in form of officer’s nicknames – “Stick” (the officer was quite proficient with his baton) or “Sparky” (the officer who tended to “overuse” his electronic control weapon). I routinely ask Plaintiffs about what tattoos they have – seen and hidden - at their deposition. I am looking to see if their tattoos tell me – and someday a jury – something about them such as they belong to a gang, have racist views (e.g. swastika, KKK, etc.), etc. I ask Plaintiffs if they have any nicknames. Of course, Plaintiff’s counsel sometime asks the same things of the officers. Simply put, while I understand and appreciate the need for comradery, brotherhood and some goodnatured ‘teasing in law enforcement, and among platoons and special units, law enforcement – both officers and administration - need to be cognizant that slogans, nicknames, t-shirts, tattoos and emblems may tell an implicit story to a jury that does not reflect well on the officer and department.

SOCIAL MEDIA

Where do I begin when it comes to the horror stories that social media bring? Consider the police shooting case wherein the decedent was AfricanAmerican, and his family alleged that the Caucasian officer used force unjustly and was motivated by racism. The officer denied this, but Plaintiff’s counsel uncovered some posts on the officer’s social media page commenting about AfricanAmericans and expressing racist views. Or the phone call I received from one of my police chief clients outraged about a social media post that an about-to-graduate cadet had posted on his site –pictures of the cadet at a Halloween Party dressed in blackface. “I was just

joking around – I didn’t mean anything” the police cadet replied when confronted by the chief, and was thereafter told he was fired as such ‘jokes’ were not tolerated and not funny. Fortunately, Plaintiffs can be even worse and leave lots of nuggets on their social media sites that refute the claims they are making in the case, paint a very different picture of their claimed injuries, or place them in a very unflattering light. There was the plaintiff who claimed that the officers overreacted and came loaded for bear with the SWAT team to serve a search warrant. What the Plaintiff failed to note is his lawsuit was that the officers were justly concerned because Plaintiff’s website was replete with videos of him bragging that he was a gangster, affiliated with a gang, waved around weapons and talked of shooting a cop. His pleas that the guns were plastic, and the videos a “spoof” to get more social media “traffic” fell on deaf ears and his lawyer promptly dropped out of the suit. Or the female plaintiff who claimed that she incurred significant back problems because of an arrest – yet her social media page reflected she was ‘shaking her groove thing’ every weekend at one of the local strip clubs. Or my favorite, the Plaintiff who claimed that her arrest caused her “embarrassment” and loss of “reputation.” However, her ‘work’ webpage – as a saleswoman for a cigar shop chain - was filled with several ‘risqué’ photos of her with a stogie in her mouth and described her as “an eccentric gal who doesn’t like to play by the rules . . . and with a body to die for. Her striking physique is radiated by a killer body that features shapely legs that seem to extend for miles. This tantalizing temptress . . . has a glamorous face that can lure even the most discerning man, especially when her lips are locked around her favorite cigar, and, her intoxicating body can make any man drunk on love.” The case was dismissed soon after her deposition and our exploration of how the arrest affected her “reputation” in a negative way (as opposed to helping support her ‘tantalizing’ and ‘dangerous’ reputation). Social media posts, pictures, “likes”, and organizations are fair game and can tell an entirely different story than the officer or a plaintiff wishes to portray to the outside world or a jury at trial. They are goldmines for cross-examination fodder and painting a person in a vastly different light than they would like the outside world to see.

CONCLUSION

Image and perception are critically important to law enforcement, particularly in these times. Recent months have been filled with stories casting officers in a bad light – sometimes justifiably and sometimes unfairly. Law enforcement has an extremely difficult and public job, and too often find that the rest of the world gets unlimited hours to re-play, zoom in, freeze-frame and second-guess the split-second decision that an officer makes. That is not going to change; in fact, it will only become more prevalent as more homes and businesses install cameras, more people carry smartphones, and more departments issue body-worn-cameras and install cameras in cruisers. Officers are, and will increasingly be, actors on a very public stage. How they play their part, what they say and how they say it, can and will make a big difference in shading how the viewing public, and seated jury view and judge them. Officers and administrators are well-advised to use the technology, and the words and actions they capture, to tell the story in a way that paints the most flattering picture as possible. I realize that this is not always possible, but officers should be mindful, trained, and have it engrained that they are always on the stage and need to act and speak their best. This can shape– in a good or bad way- how an officer or department is viewed, both in individual incidents and overall.

Image and perception are critically important to law enforcement, particularly in these times. Recent months have been filled with stories casting officers in a bad light – sometimes justifiably and sometimes unfairly. Law enforcement has an extremely difficult and public job, and too often find that the rest of the world gets unlimited hours to re-play, zoom in, freeze-frame and second-guess the split-second decision that an officer makes.