MTS transit officers wear body cameras during their shift to record their interactions with passengers. / Photo by Adriana Heldiz
A lawyer's unsuccessful efforts to obtain a body camera video from the Metropolitan Transit System to defend his client have uncovered gaps in the agency's policy on handling footage, which MTS will soon review externally.
Lawyer Coleen Cusack spent weeks trying to access footage from Rich Brooks, 54, who had been given a ticket last August for allegedly failing to comply with an MTS official's order. According to a Brooks indictment, the video would help with disputes.
MTS deleted the footage before Cusack could reach it.
At a hearing almost four months after Brooks was quoted, Cusack found that the transit agency would automatically delete the video officers' record after 60 days, unless it was marked by the agency and MTS does not directly monitor the footage recorded by its 140 contract security officers of which are armed.
Law enforcement and legal experts who spoke to Voice of San Diego pointed out that MTS needs to improve the control and transparency of body camera guidelines that can affect law enforcement and misconduct investigations.
MTS announced this week that it would ask an independent advisor to analyze and recommend possible changes to its body camera guidelines as part of a more comprehensive review of the agency's enforcement structure and practices. An MTS spokesman said the agency is also investigating the cost of increasing its storage capacity to keep the body camera's footage for extended periods of time.
The retention policies for body camera video can vary widely, and advocates of civil liberties have argued that not all recordings should be kept indefinitely for privacy reasons. However, several other transit and police agencies interviewed by VOSD indicated that they had received low-level quotes like Brooks' shots far longer than MTS, leaving more time to watch videos for legal challenges or to investigate complaints.
Bay Area Rapid Transit, the Southeastern Pennsylvania Transport Authority, the San Diego Police Department, the San Diego County Sheriff Department, and the Sacramento Police Department, who provide officers to assist the region's transit system, all reported video storage with low level quotes for at least two years. Officials who work for the Metropolitan Transit Authority in Harris County, Texas, keep the footage for six months.
In comparison, MTS does not capture videos of quotations or other encounters until 60 days later, unless the officials decide that the footage is evidence of a criminal case, possible lawsuit or complaint, or that violence or physical arrest has been recorded. In such cases, MTS reports that the footage is held indefinitely in accordance with government law, so the footage must be retained for at least two years. The same state law states that footage that contains no evidence should be kept for at least 60 days.
Cusack and Brooks argue that video material from his quote was crucial evidence that it should have been saved for more than 60 days, and that it is unfair for MTS to decide which material to save.
For years, MTS has decided that quotes for offenses such as fare evasion or loitering, the vast majority of its enforcement actions, should be kept for no more than 60 days. In the years since MTS officers were first equipped with cameras in 2014, MTS enforcement of these violations has increased dramatically. Contrary to more serious crimes, violations are usually punished with fines.
MTS police chief Manny Guaderrama said the agency had decided years ago when drafting its guidelines that 60 days would be enough time because public complaints and legal challenges usually occur within this period. He said MTS also had to weigh up significant video storage costs.
Mus officials say Cusack and Brooks are the first to raise concerns about the agency's video retention policy. This would not come as a surprise, since most people who receive violations are not represented by lawyers and may not know that they could request body camera footage to defend themselves – or how long camera footage might be available.
MTS said this week that it is considering whether it could invest in more video storage to allow a longer retention period for low-violation quotes that make up most of its enforcement.
"The cost of video storage was the main reason that violations were only saved for 60 days," MTS spokesman Rob Schupp wrote to VOSD in an email. "While MTS has determined that retention of violation video is reasonable for 60 days, MTS is currently reviewing the costs associated with increasing storage capacity."
Schupp also said that the type and volume of MTS quotes initially recorded and the agency's unique security team, which is made up of contract security officers and MTS inspectors who wear all cameras, make it difficult to follow their guidelines with the Compare police or other transit agencies.
MTS Chairman Nathan Fletcher and City Councilor Monica Montgomery, who heads the Board's Public Security Committee, welcomed a review of MTS's body camera guidelines.
“As a public authority, it is critical that we are very transparent with all of the law enforcement agency staff, regardless of whether they are MTS or contract agents, about the footage from the body cameras. So I think it is appropriate that we look at this policy in its entirety and see if any changes need to be made, ”said Fletcher, a county supervisor.
The step towards analyzing the MTS guidelines for body cameras takes place amid a broader discussion about possible changes to the agency's aggressive enforcement strategy and the structure of its security forces.
The agency employs 64 code compliance inspectors and more than twice as many security guards as Allied Universal. The inspectors write quotes, the guards don't. There are also no state-certified police officers, a term that would require more extensive training.
As part of his contract with MTS, Allied Universal provides officers with body cameras and takes care of storing their footage. The Allied Universal contract also includes a clause stating that the video material is not considered a public record. This means that the public needs a court order to view the material recorded by more than two thirds of the agency's security forces.
Cusack, who had preloaded body camera footage of Brooks' encounter with MTS, was unable to access video footage because she unwittingly missed a deadline to request it after volunteering to represent Brooks pro bono. She now argues that videos of MTS quotations should be kept until they can be tried in court and that the process for requesting footage should be clarified.
"You can't just say," In 60 days we will destroy the evidence, "said Cusack.
Brooks, who is homeless, said he was contacted by an MTS security team last August after parking his motorhome in an MTS parking lot. Brooks said the MTS officer and two guards treated him aggressively when he tried to approach a surveillance camera so the encounter could be filmed. He believes that MTS body camera footage would show that he has not acted inappropriately or openly disregarded the MTS officer's instructions.
Cusack requested the footage from the public prosecutor's office in mid-September. She later heard that the city's lawyers did not coordinate the evidence-taking efforts for most MTS lawsuits.
Cusack then requested the footage from MTS. It was too late.
At a trial in November, the MTS officer, who oversees the agency's camera footage and ensures that the footage to be tagged is preserved, found that the MTS official's video of the Brooks encounter was automatic after 60 days was deleted.
MTS security system administrator Jeremiah Johnson also said at the November hearing that two Allied Universal security officers were also likely to have recorded the Brooks incident, but MTS was not responsible for the handling of their footage.
"They manage their own body-worn camera shots," Johnson said in November. "I'm not sure what policies and procedures apply to your cameras."
In a statement, Allied Universal spokeswoman Vanessa Showalter wrote that security guards must follow the company's guidelines for body cameras.
This policy, provided by MTS VOSD, requires the guards to store footage "that is reasonably expected to result in civil law suit, criminal prosecution, or personnel complaint".
With that in mind, Brooks' footage should probably have been kept since MTS ultimately pursued a lawsuit against him that was filed in court.
Showalter did not answer questions about whether Allied Universal officials comply with MTS camera policies when working for the transit agency.
Guaderrama informed VOSD that Allied Universal guards must comply with MTS body camera guidelines and that the contractor, like MTS, will label the footage and provide it upon request.
"You were very cooperative," said Guaderrama. "Part of their agreement was that they would provide (video) for criminal cases, and they always did."
Cusack never received Allied Universal footage about Brooks' case at her request to MTS.
Cusack argued in a March hearing that MTS should be despised in court for failing to comply with their subpoena and providing footage. She also argued that prosecutors should be sanctioned for lack of support.
An MTS lawyer argued that the agency had supplied all the documents it had at the time of the Cusack request. The prosecutor did not appear in court, and spokeswoman Hilary Nemchik told VOSD that her lack of involvement was due to the law firm not processing evidence in most MTS cases.
A judge rejected the applications, but left open the possibility of a further challenge.
Michael Gennaco, a Los Angeles area police supervisor and former attorney general, said he believed MTS should keep body cameras until the lawsuit is complete.
"If there is a violation and a subsequent enforcement action is being considered, I believe that this would trigger an automatic collection of evidence, and in my eyes, the body camera footage is evidence," said Gennaco.
He also said MTS should ensure that Allied General Officers follow the same protocols.
Rachel Levinson-Waldman, deputy director of the Brennan Center for Justice Program for Freedom and National Security at the School of Law at New York University, said MTS should conduct audits to ensure that its policies are followed by both its officers and those Allied Universal Guards to be followed The public knows how long the footage will be kept and how it can be released.
"As far as officials are concerned with the public, it also looks to the public whether they are dealing with a contractor or a uniformed officer from the transit agency," said Levinson-Waldman. "I think it's incredibly important that the same procedures are followed as the footage is handled."
Brooks, whose case Cusack continues to fight in court, is disappointed that the footage from the MTS body camera has not been recovered. He believes the video would have shown that he wasn't acting inappropriately.
"I think it's a big problem," said Brooks. “It may not seem to the natural observer why the body-worn camera is so important in smaller cases like mine, but what it allows (without the publication of footage) is to allow them to dictate what justice or injustice occurred during the arrest and to include the entire narrative in their testimony and say that this happened and you have no evidence that anything else happened. "