Legal Corner: Viridian Weapon Technologies
How and why officers did not have their Body Cameras activated in Memphis OIS
Matthew Plowman, J.D.
General Counsel and Chief Legal Officer
The fall out continues from SEPTEMBER’s tragic shooting in Memphis of Martavious Banks following a chase and traffic stop. As we have seen so many times, the focus is not on what really happened but on how and why the involved officers did not have their Body Cameras activated. Facts are still sketchy, but we understand from media reports that Banks was originally pulled over in a traffic stop and did not have ID or proof of insurance and officers report that a gun was spotted. This original encounter was captured on BWCs. The next report is that Banks fled, starting a chase, and the shooting occurred as the officers were attempting to apprehend Banks. Inexplicably, the BWCs were turned off for that critical event.
The scrambling done by Memphis police and city officials has featured logic that is, quite frankly, absurd. The City paid $11.5 million to issue 1600 BWCs to its officers in 2016-17. In the aftermath of the Banks shooting, a Memphis City Council member named Jamita Swearengen questioned a Memphis police spokesman report that the cameras deployed at the tragic event either malfunctioned or were turned off. Logically, each officer is required to check the camera for functionality before each shift and three BWCs malfunctioning at once seems unlikely. Memphis PD Deputy Director, James Ryall, said this event “could be the outlier” because if a fight or tussle occurred, the cameras may have become non-operational. Swearengen called him on it. As quoted in a published story from Maya Smith of the Memphis Flyer newspaper.
“Still, Swearengen said both the body cameras and the car dash cameras of all three officers shouldn’t have been malfunctioning at the same time."
[City Council] Chairman Berlin Boyd agreed, saying that it seems unlikely for multiple officers to have equipment that didn’t work.
“I’m just curious as to what transpired,” Boyd asked. “What could have happened? I could see if it was one officer, but I can’t see how it would happen to several officers. That’s kind of puzzling to me that all of the officers cameras weren’t working.”
This is another “something in the milk aint clean” moment as was quoted in Houston, Texas when its newly implemented BWCs failed to capture their first two OIS events after implementation, causing the program to be suspended for a time in 2017.
The City Council chairman then went to the heart of the issue.
“Let me speak from the banker's perspective,” Boyd said. “We gave you guys taxpayers’ dollars and if the system is malfunctioning, we need to have a real hard, robust discussion.”
Boyd suggested that MPD might need to implement a system that doesn’t allow officers to control their own cameras. Instead, the cameras would remain on throughout the officers’ shifts.
At this point, Boyd and the Memphis City Council are probably not aware of our WMC that indeed, due to the Instant-On technology, does not allow officers to control their own cameras. While the cameras, I would bet, were probably manually turned off by the officers after the initial encounter for whatever reason (I prefer to think as a severe procedural mistake rather than something worse), I am guessing the guns were drawn immediately on efforts to apprehend Banks which would have kept the WMC recording outside of the officers’ control. Be assured that we are contacting Mr. Boyd and other City of Memphis officials about his suggestion.
'We will get to the bottom of this'
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When used as a supplement to a existing BWC program, the FACT Duty WMC is only an additional 5% of the cost.
Even more absurd was the reasoning of Memphis mayor, Jim Strickland (as reported in a published story by Memphis TV station, WREX). Despite this unquestionable horrible circumstance of a controversial shooting without the $11 million + BWC program assisting in any way with transparency, Mr. Strickland managed to say, "Three and a half million recordings. Fifty or 60 times that cameras have not been turned on. That's 99.99% success rate. We want 100% success rate. We want to drive that non-use down to zero. But overall I think the system is working very well."
Just . . . . WOW! I am usually not at a loss for words. I will not insult our audience by pointing out the flaws in Mayor Strickland’s reasoning, but I would be surprised if any public officials did not agree with the point Viridian continually makes. That point is that it is the most critical, often low frequency but high severity events that are the most critical reason to implement an evidentiary recording system. If I was a Memphis citizen or City official, I would say “who cares about the 99.99% success rate mainly consisting of innocuous interactions if the BWC fails when our City (for liability and community trust purposes) needs it most?” That is like saying that the seat belts worked in my car every time except for when I had a crash.
We will be contacting Memphis officials to suggest the WMC as a low cost supplement to their BWC program. Memphis is rightly concerned about capturing the vast majority of encounters that do not result in an Officer Involved Shooting. But, if transparency overall is the goal, transparency for these critical events must be included. Memphis should work to fix this mess that has resulted by giving the best chance to know what really happened if another OIS takes place.