AG Opinion: Texas Cops Under Investigation Can Watch ‘Any’ Body Cam Footage Before Answering Questions

Some fear the policy will let officers get their story straight about questionable police encounters before putting anything on record.

A police officer wearing a body camera.
A police officer wearing a body camera. Flickr/PennStateLive

If a Texas cop outfitted with a body camera shoots someone, they get to review not only their own footage but that of every other body cam-wearing officer at the scene before answering questions about it.

Thanks to a Monday opinion by Texas Attorney General Ken Paxton, that policy will likely soon trickle down to every department in the state that equips officers with body cameras. As I wrote last year, some police accountability advocates fear the policy allows cops to get their story straight about questionable encounters before putting anything on record.

Paxton’s opinion follows a September request by Dallas County District Attorney Faith Johnson to clarify the sweeping body cam law the Texas Legislature passed in 2015, which entitles officers “to access any recording of an incident involving the officer before the officer is required to make a statement about the incident.” As Johnson’s office told us at the time, some Texas police departments interpreted that to mean officers could review only their own body cam footage before going on record, which civil rights groups like the ACLU still criticized as “poor investigative practice” that police would never use on other suspects. Others, including the Dallas Police Department, put that policy on steroids, allowing cops to also review the body camera footage of every other officer who was on the scene before giving a statement, according to Johnson’s office.

In her letter to Paxton last year, Johnson said that the more liberal of those two interpretations — basically, all cops at the scene of an incident get to see everything before any of them are asked to say anything — created a “dilemma” for prosecutors investigating police shootings. Officers could craft a story based on what everyone else saw before going on record, or at the very least be accused of doing so. “Our concern is that this practice, if mandated, may actually detract from the officer’s credibility when testifying,” wrote Johnson, a Republican appointed by Governor Greg Abbott. She asked for the AG opinion right around the time her office indicted two Dallas-area officers for police shootings captured by body camera.

Ken Paxton image cropped for hero purposes
Ken Paxton  Patrick Michels

In his Monday opinion, Paxton writes that while “there may be valid arguments for or against” restricting officers’ access to only the body cams they are wearing, the law passed by the Legislature in 2015 is “unambiguous.” He writes that any Texas law enforcement agency that uses body cams must “adopt a policy that entitles a peace officer to choose which recording or recordings of an incident involving the officer to access before the officer is required to make a statement about the incident.”

Matthew Gossen, a San Antonio attorney who’s litigated cases against police departments over deaths in custody, worries the body cam policy endorsed by the AG’s office will “give officers the opportunity to embellish and rely on something that they really didn’t experience in writing their statement.”

“I think body cam programs are something we desperately need for police accountability,” he told the Observer. “But with the way the Legislature wrote the statute, the only ones who really have unrestricted access to the footage are police officers themselves.”

Another AG opinion issued on Monday reiterated law enforcement’s ability to withhold body cam footage from the public if authorities determine it would “interfere with the detection, investigation, or prosecution of a crime.” While AG opinions aren’t legally binding, government agencies typically use them to interpret state law.

In a prepared statement Monday, Johnson told the Observer her office will send the AG’s share-all opinion to all police departments in her jurisdiction “to ensure uniformity in regard to access to body worn cameras.”

Michael Barajas is a staff writer covering civil rights for the Observer. You can reach him on Twitter or at [email protected].

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Published at 6:54 am CST