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An attorney’s unsuccessful effort to obtain Metropolitan Transit System body camera video to defend her client has revealed gaps in the agency’s policy for handling footage that will soon get outside scrutiny at MTS’s request.
Attorney Coleen Cusack for weeks tried to access footage of Rich Brooks, 54, being ticketed last August for his alleged failure to comply with an MTS officer’s order, a charge Brooks said the video would help dispute.
MTS purged the footage before Cusack could get to it.
At a hearing nearly four months after Brooks was cited, Cusack learned the transit agency automatically deletes video officers record after 60 days unless it is flagged by the agency and that MTS doesn’t directly oversee footage recorded by its roughly 140 contract security guards, many of whom are armed.
Law enforcement and legal experts who spoke with Voice of San Diego said the case points to the need for MTS to bolster checks and balances and transparency around body camera policies that can impact prosecutions and misconduct investigations.
MTS said this week that it will ask an independent consultant to analyze and recommend potential changes to its body camera policy as part of a broader review it is seeking of the agency’s enforcement structure and practices. An MTS spokesman said the agency is also exploring costs associated with increasing its storage capacity to maintain body camera footage for longer periods.
Retention policies for body camera video can vary widely, and civil liberties advocates have argued that not all footage should be retained indefinitely for privacy reasons. But several other transit and police agencies polled by VOSD reported holding onto footage of low-level citations like the one Brooks received far longer than MTS, allowing more time for video to be pulled for court challenges or to investigate complaints.
Bay Area Rapid Transit, Southeastern Pennsylvania Transportation Authority, the San Diego Police Department, the San Diego County Sheriff’s Department and the Sacramento Police Department, which supplies officers to help police the area’s transit system, each reported storing videos of low-level citations for at least two years. Officers working for the Metropolitan Transit Authority of Harris County, Texas, keep that footage for six months.
By comparison, MTS only holds onto videos of citations or other encounters after 60 days unless officers decide the footage constitutes evidence in a criminal case, potential lawsuit or complaint, or if a use of force or physical arrest was recorded. In those instances, MTS reports that it holds onto footage indefinitely in accordance with state law encouraging footage to be retained for at least two years. The same state law says footage that is not deemed to contain evidence should be kept for at least 60 days.
Cusack and Brooks argue video footage of his citation was crucial evidence that should have been saved for more than 60 days and that it’s unfair that MTS itself decides what footage is worth saving.
MTS has for years decided that its citations for offenses such as fare evasion or loitering, the vast majority of its enforcement actions, do not need to be retained longer than 60 days. In the years since MTS officers were first outfitted with cameras in 2014, MTS enforcement of those infractions has dramatically increased. Infractions, unlike more serious crimes, are typically addressed with fines.
MTS Police Chief Manny Guaderrama said the agency decided when it crafted its policy years ago that 60 days was ample time because public complaints and court challenges usually come up within that period. He said MTS also had to weigh substantial costs associated with video storage.
MTS officials have said Cusack and Brooks are the first to raise concerns about the agency’s video retention policy. That would not be surprising, because most people who receive infractions are not represented by attorneys and may not know they could request body camera footage to defend themselves – or how long camera footage could be available.
MTS said this week it is examining whether it could invest in more video storage to allow for a longer retention period for low-level infraction citations that make up the vast majority of its enforcement.
“The cost of video storage was the primary driver for keeping infraction video for only 60 days,” MTS spokesman Rob Schupp wrote in an email to VOSD. “While MTS has found the retention of infraction video for 60 days to be adequate, it is currently looking at associated costs to increase its storage capacity.”
Schupp also said the nature and volume of MTS citations that are initially recorded and the agency’s unique security force, made up of contract security guards and MTS inspectors who all wear cameras, make its policies difficult to compare with police or other transit agencies.
MTS Chairman Nathan Fletcher and City Councilwoman Monica Montgomery, who helms the board’s Public Security Committee, have said they welcome a review of MTS’s body camera policy.
“It is critically important as a public agency that we are very transparent around the body camera footage for all of our enforcement personnel, whether they be MTS or contracted, and that’s why I think it is appropriate that we look at this policy in its totality and see if there are changes that need to be made,” said Fletcher, a county supervisor.
The move to analyze MTS’s body camera policy comes amid broader discussions about potential changes to the agency’s aggressive enforcement strategy and the structure of its security force.
The agency employs 64 code compliance inspectors and more than double that number of security guards employed by contractor Allied Universal. The inspectors write citations while the guards do not. Neither are state-certified police officers, a designation that would require more substantial training.
As part of its contract with MTS, Allied Universal provides its officers with body cameras and handles storage of their footage itself. Allied Universal’s contract also includes a clause stating that its video footage is not considered a public record, meaning members of the public need a court order to view footage recorded by more than two-thirds of the agency’s security force.
Cusack, who subpoenaed body camera footage of Brooks’ encounter with MTS, was unable to access video footage because she unknowingly missed a deadline to request it after volunteering to represent Brooks pro bono. She now argues video of MTS citations should be retained until they can be addressed in court and that the process for requesting that footage should be clarified.
“You can’t just say, ‘60 days in, we’re going to destroy the evidence,’” Cusack said.
Brooks, who is homeless, said he was approached by an MTS security team last August after parking his RV in an MTS lot. Brooks said the MTS officer and two guards treated him abrasively when he tried to move toward a security camera so the encounter could be filmed. He believes MTS body camera footage would show he didn’t act unreasonably or flagrantly disobey the MTS officer’s orders.
Cusack requested the footage from the city attorney’s office in mid-September. She later heard city attorneys do not coordinate efforts to provide evidence for most MTS court cases.
Cusack then requested the footage from MTS. It was already too late.
At a November court hearing, the MTS official responsible for overseeing the agency’s camera footage and ensuring that footage that should be flagged is retained revealed the MTS officer’s video of the encounter with Brooks had been automatically deleted after 60 days.
MTS security systems administrator Jeremiah Johnson also testified at the November hearing that two Allied Universal security officers had also likely recorded the incident involving Brooks, but that MTS was not responsible for handling their footage.
“They manage their own body-worn camera footage,” Johnson said in November. “I am not sure of their policies and procedures pertaining to their cameras.”
In a statement, Allied Universal spokeswoman Vanessa Showalter wrote that its security guards are required to follow the company’s body camera policy.
That policy, which MTS provided to VOSD, calls for guards to save footage that is “reasonably anticipated to result in a civil claim, criminal prosecution or personnel complaint.”
Under that verbiage, the footage of Brooks likely should have been retained since MTS ultimately pursued a charge against him that was filed in court.
Showalter did not respond to questions about whether Allied Universal officers adhere to MTS’s camera policies when they work for the transit agency.
Guaderrama told VOSD that Allied Universal guards are required to abide by MTS’s body camera policy and that, like MTS, the contractor flags footage and provides it upon request.
“They’ve been very cooperative,” Guaderrama said. “Part of their agreement was they would provide (video) for criminal matters and they’ve always done that.”
Cusack never received Allied Universal’s footage of Brooks’ case following her request to MTS.
Cusack argued in a March hearing that MTS should be held in contempt of court for its failure to comply with her subpoena and supply footage. She also argued the city attorney’s office should be sanctioned for its failure to assist.
An attorney for MTS argued that the agency had supplied all the records it had at the time of Cusack’s request. The city attorney’s office did not appear in court and spokeswoman Hilary Nemchik told VOSD its lack of involvement stemmed from the fact that the office does not handle evidence in most MTS cases.
A judge dismissed the motions but left open the possibility of another challenge.
Michael Gennaco, a Los Angeles-area police oversight expert and former federal prosecutor, said he believes MTS should retain body camera footage until court processes have concluded.
“If there’s an infraction and a subsequent enforcement action is contemplated, I would think that should trigger an automatic capture of any evidence and in my mind, the body camera footage is evidence,” Gennaco said.
He also said MTS should ensure Allied Universal officers follow the same protocols.
Rachel Levinson-Waldman, deputy director at the Brennan Center for Justice’s Liberty & National Security Program in New York University’s School of Law, said MTS should conduct audits to ensure its policies are being followed by both its officers and Allied Universal guards, and that the public knows how long footage is retained and how it can be released.
“Insofar as officers are dealing with the public, it looks exactly the same to the public whether they are dealing with a contractor or uniformed officer of the transit agency,” Levinson-Waldman said. “I think it’s incredibly important there be the same procedures for how that footage has dealt with.”
Brooks, whose case Cusack is continuing to battle in court, is disappointed the MTS body camera footage couldn’t be recovered. He believes video would have shown he didn’t act unreasonably.
“I think it’s a big issue,” Brooks said. “It might not seem like it to the natural observer why the body-worn camera is so important even in smaller cases like mine but what (not releasing footage) allows them to do is allow them to dictate what justice or injustice occurred in the arrest, and to take the entire narrative in their testimony and say this happened, and you have no proof that anything else happened.”