For years at Albuquerque police, option to delete body-cam video was widespread

Emails show practice had ended but was discussed again just after Boyd shooting

Police Body Cam Photo

ALBUQUERQUE (KRQE) – For nearly three years, Albuquerque police officers had a choice with their body-worn cameras at the end of each shift: save every video, or delete whichever recordings they wished before anyone else ever saw them, documents obtained by KRQE News 13 show.

APD brass had a camera on every officer by early 2011. City officials were touting the cameras as a transparency tool; one that would protect citizens, officers and the department’s flagging image and describing APD as the first law enforcement agency of its size in the country to mandate body cameras for the entire force.

The city’s aggressive public relations campaign for the cameras was less transparent. No one outside city government seemed to have any idea officers could delete video.

Civil rights and criminal defense lawyers who spoke to KRQE News 13 said the revelations about officers’ ability to delete videos raise questions about transparency, public policy and potential impacts on many types of cases in which body camera video has become integral.

News 13 obtained more than 300 emails and several internal memos through the New Mexico Inspection of Public Records Act. They show that many at APD, from street cops to higher-ups, were well aware that cameras made by two different manufacturers left up to officers the decision of which videos survived.

In November 2013, then-Police Chief Allen Banks was beginning to change course. Banks set a new de facto policy for the department that would strip officers of their ability to delete videos.

But four months later, under the new leadership of Chief Gorden Eden, APD officials were reconsidering. The documents obtained by News 13 suggest that, on March 19, Eden’s three deputy chiefs met with APD technical staff and discussed allowing officers “to manage their videos” -i.e. delete certain clips before uploading them to a secure storage server.

“If I change the setting in Evidence.com to allow offline mode this will give the officer the ability to manage their videos…”Christopher Whigham, APD Detective.

The meeting came just three days after two APD officers shot James Boyd in the foothills at the eastern edge of the city, killing the homeless man who had been illegally camping in city open space. The shooting had been captured by the helmet camera of one of the officers, but the public hadn’t seen it.

Two days after the meeting of department brass and tech staff, APD released the video. It led to protests, renewed demands for reform at APD and marked a low point for the department.

The officers who shot Boyd, Dominique Perez and Keith Sandy, have since been charged with murder and are awaiting trial. Prosecutors have said the video made all the difference in their unprecedented decision to pursue criminal charges.

It is unclear whether APD command ever allowed officers to begin deleting videos again. Also unclear is how many videos may have been deleted through the years. The department has refused to answer questions about the practice for months, saying in October only that officers are not “currently” allowed to do so.

But the documents obtained by News 13 show the conversation continued within the department well into the summer of 2014. An officer with the department’s technical unit recommended a return to the system in which officers could select videos for deletion. That officer sent his recommendations to APD administration and to the office of Mayor Richard Berry.

As recently as May of this year, officials from other police departments were asking Chief Eden about APD’s experience with allowing officers to pick and choose which videos were stored and which ones were not.

Neither Frances Crockett Carpenter, an attorney working in civil rights, nor Ousama Rasheed, former president of the New Mexico Criminal Defense Lawyers Association, was aware APD allowed officers to delete video until News 13 aired and published a report about the practice on Oct. 13.

“I don’t believe the public knew at all that there was an option to delete the videos. And neither did we.” – Ousama Rasheed, Defense Attorney

“I think that the public expects if the officer is out of their vehicle and walking around, that should be on the recording,” Rasheed said in an interview. “I don’t believe the public knew at all that there was an option to delete the videos. And neither did we.”

Carpenter said: “The public has a general perception of officers, because it’s ingrained in us from birth, that officers are truth tellers and that they’re held to this sort of high, starlight level … I had no clue that they could delete the videos. I’m a lawyer, I’ve been doing civil rights for over 10 years, and I was shocked when I found out that they had the ability to delete.”

KRQE News 13 sent a detailed list of questions about this story to APD spokeswoman Celina Espinoza. Late Tuesday, Espinoza sent a comment that did not respond to any of those queries. Rather, it reiterated the fact that the department currently uses online mode as a “global option.”

‘Funny I’m the only one who can’t’

APD started experimenting with body cameras for officers in August 2010. After five months and a hard push from longtime Chief Ray Schultz, every officer was wearing a camera made by a company called Scorpion.

At the time, Schultz said outfitting officers with the cameras would be a watershed moment for the department. “I think it’ll change everybody’s behavior, knowing that this event now is being recorded,” he told News 13.

What he didn’t say was that officers had discretion over which videos they kept. But emails, APD memos and a user manual for Scorpion cameras produced by the department show that they did.

Schultz had his officers wearing Scorpion cameras for more than two years. During that time, videos were stored locally on officers’ laptop computers and on the department’s servers. At the end of each shift, officers plugged their cameras into laptops and selected which videos to upload, documents show. The rest could be deleted.

In any case, the Scorpion cameras proved too unreliable for APD, according to an April 2014 memo looking back on the body camera experiment written by officer Christopher Whigham of the technical services division. Because officers wore the cameras on their chests, video was often obscured when they drew their guns or stun guns. Furthermore, officers “often forgot” to turn the cameras on in the early days. Even when they did remember, Whigham wrote, the Scorpion cameras were sometimes “non-functional and failed to record.”

As Schultz pushed ahead with the Scorpion body camera experiment, the chief began requiring officers to record all contacts with citizens rather than just certain types of interactions.

The department began to look at other camera options in early 2012, and by November, Schultz had asked APD staff for a “roadmap” to roll out body cameras from a new manufacturer: Taser International, a company for which he would later go to work as a consultant. The chief wanted it done by mid-February 2013. By the following April, 75 APD officers were using the Taser-made Axon-Flex cameras and the company’s cloud-based video storage system, Evidence.com.

The Taser cameras can be set up in one of two configurations: “online mode,” in which all videos are automatically uploaded to Evidence.com, and “offline mode,” which allows officers to choose which recordings are stored. From the beginning, APD left the decision up to officers, according to emails and internal memos.

“That’s funny I’m the only one who can’t change it to offline.” – Jeremy Dear, Former APD Officer

One officer, however, was denied the choice. And he wanted to know why.

“Reference the Taser camera that I was issued, I was going to see if I could change my thing to offline and not online,” officer Jeremy Dear wrote in an email to Whigham on June 17, 2013, “I would like the availability to delete. Please let me know. Thank you.”

Whigham responded three days later. He told Dear that because of the “position (Dear) was in,” then-Deputy Chief Allen Banks would not authorize offline mode for Dear.

“Ok cool,” Dear wrote back. “That’s funny I’m the only one who can’t change it to offline.” (The “position” Dear was in stemmed from his failure to record numerous use-of-force incidents. Later, he fatally shot 19-year-old Mary Hawkes in Southeast Albuquerque. There was no video of the shooting captured on his Taser camera. The department and Dear indicated it “malfunctioned,” though a test by Taser determined that the camera was in working order and was either unplugged or not recording when he shot Hawkes. Dear was fired for what APD called insubordination and untruthfulness, but the city personnel board recently overturned the firing. The city is appealing that decision.)

In November 2013, Banks, who had ascended to interim chief after Schultz’s retirement, moved the whole department to online mode only, emails show. That meant no more option to delete videos for officers.

Banks left APD at the beginning of the following year when Mayor Berry hired Gorden Eden to run the department. The issue of online vs. offline mode appeared to be settled by then until the meeting three days after the Boyd shooting on March 19, 2014. The next day, Whigham wrote a synopsis of the meeting and sent it to three deputy chiefs.

“If I change the setting in Evidence.com to allow offline mode this will give the officer the ability to manage their videos before the go up to Evidence.com,” Whigham wrote. “This will give you the result that you want … ”

Whigham compiled a retrospective of APD’s camera program in April 2014. In it, he wrote that “uploading all files to Evidence.com is now mandatory,” but he included a section titled “policy suggestions” in which he called for a return to offline mode as a choice for officers.

He began sharing the document with department higher-ups that July, and he sent it to a spokeswoman for Berry the following month.

Meanwhile, APD’s use of Taser cameras in offline mode appears to have spread around the law enforcement community nationally.

As Whigham was sharing the document in the summer of 2014, he also sent it to staff at the Miami-Dade Police Department.

And just this past May, a corporal with the police department in Gillette, Wyo., sent an email to Chief Eden. “We are preparing to purchase a number of body cameras for our line officers,” the corporal wrote. “I was recently made aware your department purchased Taser cameras and are using them in the offline mode. I am hoping to speak with someone in your agency about how you are managing the data and the general process as it pertains to downloading the information.”

Eden wrote the corporal back straight away, referring him to a technical services employee at APD and saying ” … data download, storage and recovery are each critical steps most agencies fail to research and fund.” Eden did not mention offline mode in his response.

Reached by News 13 via telephone, the Gillette corporal said he heard about APD’s body cam usage through an officer at another New Mexico police agency.

Gillette police ended up ordering Taser cameras and will begin training their officers to use them this week. The department chose to use its body cameras in online mode.

‘Like finding a murder weapon but throwing it in the trash’

Rasheed, the criminal defense lawyer, and Carpenter, the civil rights lawyer, said APD’s practice of allowing officers to delete videos, regardless of if or when it was halted, has consequences from a public trust perspective. It could have consequences for how cases are dealt with in court too.

“Officers shouldn’t be able to pick and choose what they’re uploading or not uploading,” Rasheed said. Deleting video clips is “just like finding a murder weapon but throwing it in the trash as they’re on the way back to the substation. The most clear, non-judgmental, factual evidence is gone.”

For the most part, he said, officers do a reasonable job of recording contacts with citizens. That works in the officers’ and the department’s favor, because more and more, judges and juries want to see video from the police when criminal cases make their way into court.

“Before the whole advent of the videos, you had an officer get up there, testify (about) what happened, you cross-examined him as best you could and that’s how cases went,” Rasheed said. “But now with the advent of video, the game is entirely changed. They want to see something other than an officer telling a story.”

Knowing that a camera is rolling and that others may see the footage later  changes the behavior of officers and the people they interact with, he said, echoing the sentiments of Chief Schultz in 2012. That is the public’s expectation of the cameras’ role in policing, and it cuts both ways. Rasheed said he’s won cases and lost them on what’s shown in body-camera video. When it matches the story of an officer who has followed procedure and accurately characterized the actions of someone who has broken the law, defense lawyers struggle; when the video shows the opposite, his clients have a better chance of being acquitted.

But when there is no video, regardless of the reason, officers lose some credibility in court, Rasheed said, adding that he was troubled to learn officers could delete any videos they chose.

“I don’t believe in coincidence, and I don’t think that it just keeps happening.” – Frances Crockett Carpenter, Civil Rights Attorney

“If there’s any question as to why a video isn’t able to be produced, that’s a problem in the criminal justice system,” he said.

It is possible that deleted video could lead to the dismissal of a criminal case, Rasheed said. To get that far, a defendant would likely have to prove that an officer intentionally destroyed potentially exculpatory evidence in an attempt to skew the outcome of a case.

That’s a high bar in both criminal and civil cases, said Carpenter, the civil rights lawyer. It is also difficult to prove.

“You can make a spoilation claim and say, ‘Well you’ve destroyed this evidence,’ but the hard part is proving it,” she said. “Because they’re not admitting it.”

Carpenter said she’s seen little from APD to indicate the department has contemplated a potential problem with missing body camera video. “Why isn’t the police department taking that serious? Why aren’t they saying, even with the Scorpion cameras, or with the Taser cameras, ‘You guys can’t touch these at all?’

“‘You guys can’t be the judge, the jury … on these cases,’ and that’s really what they’re letting officers be by way of allowing them to manipulate or otherwise delete videos.”

In addition to the possibility of deleted videos, Carpenter said another problem is the infrequency with which officers and their supervisors are disciplined for failing to record videos particularly in contentious interactions with the public such as uses of force. She pointed out only a few of the nearly 40 police shootings in Albuquerque since officers began wearing cameras have been recorded.

“I don’t believe in coincidence, and I don’t think that it just keeps happening,” Carpenter said.

In terms of public policy and transparency, she said, the cameras do not have the positive impact the department promised if officers are either deleting videos or not recording at all.

“The citizens of Albuquerque, these Taser cameras were bought on their backs, taxpayer money: millions of dollars to get these cameras,” Carpenter said. “It was gonna help, and we were gonna get those costs back, right? That money was gonna come back into the city because we weren’t gonna have anymore lawsuits. And so somehow the citizens were gonna get some of that money back, or it was gonna flush out. Well, it hasn’t.”

The Taser cameras have been a point of contention for Mayor Berry and his police department. A series of News 13 reports cast doubt on the propriety of the relationship between the company and APD. As the city was signing on as the company’s largest client for body cameras, Schultz, who was still the chief at the time was both negotiating a $2 million no-bid contract and angling for a job with Taser.

News 13’s reports led to a series of government investigations. The state Auditor’s Office found that Schultz and possibly others within the city essentially rigged the contract with Taser. A report from the city’s Office of Internal Audit reached similar conclusions, as did the city’s Inspector General.

The Berry Administration has denied any wrongdoing, but Attorney General Hector Balderas is still investigating the Taser contract case for possible criminal charges.

Although APD has repeatedly refused to answer questions about its practice of allowing officers to use offline mode and delete videos, the emails and internal memos obtained by News 13 show that Chief Eden and others are concerned with how the revelations will look to the public.

After News 13’s October report, Eden sent an email to Taser’s general counsel and the company’s chief financial officer. The chief remarked that the Albuquerque Journal had referenced the News 13 report in explaining what online and offline modes were. He asked for “thoughts.”

The emails obtained by News 13 show Eden’s inquiry bounced around Taser internally before the company’s attorney responded. In part of the email chain, a technical staff member at Taser wrote that “In order for a user to be able to switch his camera from online to offline, the ‘Offline Configuration’ checkmark must be enabled agency wide.” Taser had a built-in warning for administrators who were contemplating the change. The staff member attached a screenshot of the warning.

A screenshot sent by Taser executives to Chief Gorden Eden in October. The photo indicates a system administrator would have to set the entire department’s Taser Axon Flex cameras to “offline mode” if the department wanted any of its officers to be able to delete videos. (Courtesy: Taser International)
A screenshot sent by Taser executives to Chief Gorden Eden in October. The photo indicates a system administrator would have to set the entire department’s Taser Axon Flex cameras to “offline mode” if the department wanted any of its officers to be able to delete videos. (Courtesy: Taser International)

More than five years after APD officers began wearing body cameras, the emails show, the department is still pushing a positive narrative about transparency and benefits for both the community and officers.

As other news organizations began picking up the October story about offline mode, Espinoza, the APD spokeswoman, consulted with Eden before contacting conservative radio host Scott Stiegler with a set of talking points for his drive-time program that day.

“Listening this afternoon,” Espinoza wrote as she began a brief history of the department’s body camera program.

She then added, “When KRQE’s reporting refers to ‘offline mode’ it is important to note this is a blanket term within the technical community.”

The term “offline” has achieved something close to common usage, but Taser, as the screenshot indicates, has a very specific definition of offline mode. Indeed, a Taser spokesman in October likened offline mode to a digital camera, where the recordings and their preservation or deletion were under the complete control of the user.

“Older models and those that were first utilized as the nation (and APD) started to implement cameras, only had an ‘offline mode’,” Espinoza continued, correctly, revealing a capability that hadn’t previously been publicly disclosed by APD.

“Our current Taser platform uploads ALL recorded videos,” Espinoza wrote before signing off: “Thank you for everything.”

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