Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 1 of 19. PageID #: 1434

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
vs.
CITY OF CLEVELAND,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CASE NO.: 1:15-CV-01046
JUDGE SOLOMON OLIVER, JR.

MOTION REGARDING CLEVELAND
DIVISON OF POLICE PROPOSED
WEARABLE CAMERA SYSTEM
POLICY

Pursuant to Paragraphs 337 to 340 of the Consent Decree, a number of the Decree’s other
substantive requirements, and the Updated First-Year Monitoring Plan in the above-captioned
matter, the Monitor has reviewed a proposed revised policy submitted by the City of Cleveland
(the

“City”)

for

the

Cleveland

Police

Department

(“CPD”

or

“CDP”)

on

“wearable camera systems” (“WCS”), also referred to herein as “body cameras” or “body-worn
cameras,” attached hereto as Exhibit A (the “Proposed Policy”). Pursuant to the Consent Decree,
“[i]f CDP chooses to use body worn cameras, CDP will provide clear guidance and training on

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 2 of 19. PageID #: 1435

their use, and will implement protocols for testing equipment and preservation of recordings to
foster transparency, increase accountability, and build trust, while protecting the privacy rights of
individuals.” Dkt. 7-1 ¶ 337.
As the Monitor has previously indicated, the CPD has recently joined numerous other
police departments in using body cameras in some capacity. Dkt. 65 at 64 (“All CPD patrol
officers are equipped with body cameras, with specialty units (such as personnel working at the
Cleveland Hopkins International Airport) slated to be equipped with units in the near future.”)
Accordingly, because the CPD has undertaken this commendable effort, the Consent Decree
requires that the Monitoring Team review the policy in order “to confirm that the body-worn
camera policy appropriately incorporates community comment, conforms to the Decree’s
specific requirements, and sufficiently promotes the Decree’s other objectives.” Id. at 65.
As described in greater detail below, the CPD crafted their body-worn camera policy in
mid-2015, resulting in General Police Order 3.2.20. The Department of Justice and Monitoring
Team have reviewed that policy and provided multiple rounds of feedback, and the Division has
subsequently provided revisions of the policy, responding to the concerns, to the Department of
Justice. Substantial progress has been made in many areas in the revisions to the Proposed
Policy, and there are a number of components that are consistent with the Consent Decree and
the policies of forward-looking police organizations.
There are, however, three provisions of the policy that, for the reasons summarized
below, cannot receive the Monitor’s approval at this time. First, the Monitor cannot endorse the
Division’s refusal to mandate that officers be required to use body-worn cameras and be subject
to the Proposed Policy when they are engaging in secondary employment. Second, with respect
2

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 3 of 19. PageID #: 1436

to provisions relating to officers viewing body-worn camera footage, the Monitor defers
approval or disapproval pending the City’s subsequent work on policies and manuals relating to
use of force investigations. Third, with respect to provisions relating to camera footage being
provided to the public, the Monitoring Team finds that the provisions are better suited for a more
comprehensive policy relating to the transparency of CPD information and data.
The Monitor recommends that the Court approve the Proposed Policy with the exceptions
of Section V in its entirety, Section I-G, and Section VII-G. The Monitor requests that the Court
convene a status conference to address the issue of officers wearing and using cameras while
employed in law-enforcement-related secondary employment positions. The Monitor suggests
that the Court direct that those at the CPD with expertise in the technology of the WCS, as well
as in related storage and cost issues, be required to attend the conference. The Monitor requests
that the Court defer approval or disapproval of Section I-G until policies and manuals relating to
force and internal investigations are completed. Finally, the Monitor requests that the Court
direct CPD and the City to draft a separate, standalone policy relating to public access to and
disclosure of CPD data and information – encompassing but not limited to captured body camera
footage – for its review and approval.
I.

SUMMARY OF CONSENT DECREE REQUIREMENTS REGARDING BODYWORN CAMERAS
CPD has elected to join the more than 6,000 estimated police departments across the

United States that are using body cameras.1 Agencies are continuing to adopt the technology

1

Katie Delong, One-third of United States police departments using body cameras: They’re
expensive,
so
are
they
worth
it?,
FOX6NOW.COM
(Mar.
2,
2015),
http://fox6now.com/2015/03/02/one-third-of-united-states-police-departments-using-bodycameras-theyre-expensive-so-are-they-worth-it/ (last visited Dec.19. 2016).
3

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 4 of 19. PageID #: 1437

because it promotes officer safety, public safety, and police accountability. In San Diego, for
instance, the use of body cameras led complaints to fall by 40.5 percent and officer use of
“personal body” force – or officers going “hands-on” with subjects, which are circumstances that
typically lead to a higher rate of injuries to officers – to fall by some 46.5 percent.2 Similarly, in
Mesa, Arizona, officers using body cameras had 65 percent fewer complaints than non-users –
and saw a 60 percent decline in their own number of complaints as compared to the year before
beginning to use the cameras.3 Many other jurisdictions report similar benefits.
The “use of body worn cameras is not required” by the Consent Decree. Dkt 7-1 ¶ 337.
However, “[i]f CPD chooses to use body worn cameras,” a number of requirements are
activated. First, the Decree requires that the Division “provide clear guidance and training on
their use . . . to foster transparency, increase accountability, and build trust . . . . “ Id. The
Division must likewise implement protocols for “testing equipment,” id. ¶¶ 337, 339 and
preserving recordings, ¶ 337. The Decree outlines CPD supervisor responsibilities for viewing
recorded incidents and “conduct[ing] adequate random and directed audits of body-worn camera
recordings. . . to confirm compliance with C[PD] policy.” Id. ¶¶ 338-39. The CPD must also
ensure that officers are “subject to the disciplinary process for intentional or otherwise
unjustified failure to activate” cameras in accordance with CPD policy. Id. ¶ 340.

2

Tony Perry, San Diego police body camera report: Fewer complaints, less use of force, L.A.
TIMES Mar. 18, 2015, http://www.latimes.com/local/lanow/la-me-ln-body-cameras-20150318story.html.
3
Michael D. White, Police Officer Body-Worn Cameras: Assessing the Evidence, OFFICE OF
JUSTICE PROGRAMS DIAGNOSTIC CENTER, U.S. DEP’T. OF JUSTICE, 21 (2014)
https://ojpdiagnosticcenter.org/sites/default/files/spotlight/download/Police%20Officer%20Body
-Worn%20Cameras.pdf (summarizing Mesa Police Department’s 2013 On-Officer Body Camera
System: Program Evaluation and Recommendations).
4

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 5 of 19. PageID #: 1438

II.

PROCEDURAL HISTORY
The Court-approved First-Year Monitoring Plan provided that the Monitor would

“review and assess CPD’s current body-worn camera policies and practices,” which would
“include the collection of input from” a host of community stakeholders “about CPD’s current
body-worn camera policies and practices.” Dkt. 44-1 at 53. In March and April 2016, the
Monitoring Team met with police officers, received input from community organizations such as
the American Civil Liberties Union (ACLU), and talked with residents who were knowledgeable
about the Division’s prior process for developing the body-worn camera policy. On April 11,
2016, the Monitoring Team circulated a memorandum to CPD and the City regarding the
Division’s Body-Worn Camera (Wearable Camera System) Policy, General Police Order
Number 3.2.20. Stakeholder focus subsequently shifted to work on new policies related to force,
new policies and protocols for crisis intervention, operational manuals for the Office of
Professional Standards and Police Review Board, and on the City’s preparation for the
Republican National Convention in July 2016.
Pursuant to revised deadlines in the Updated First-Year Monitoring Plan, Dkt. 80-1 at 19,
CPD and the Parties continued work on revising the body-worn camera policy in October 2016.
The Monitoring Team affirmed its original comments and recommendations, from its April 11
memorandum, on October 18, 2016. The Department of Justice provided detailed comments on
October 19, 2016. CPD provided a revised version of the policy on November 1, 2016. The
Monitoring Team circulated specific edits and comments, along with the Team’s prior
memorandum of recommendations, to CPD on November 2, 2016. The Division circulated
another draft on November 23, 2016. Between November 23, 2016 and December 16, 2016, the
5

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 6 of 19. PageID #: 1439

Parties, CPD, and Monitoring Team discussed potential further refinements of the policy. The
deadline for the Monitor to “recommend[] approval or disapproval of the Final Draft Body Worn
Cameras Policy to the Court, either in whole or in part” is, with the Parties and Monitor agreeing
that a seven-day extension of the deadline was “warranted and acceptable,” December 19, 2016.
Dkt. 80-1 at 3, 19.
III.

STANDARD OF REVIEW
“As an agent of the Court,” the Monitoring Team must “assess and report whether the

requirements” of the Consent Decree “have been implemented.” Dkt. 7-1 ¶ 351; accord id. ¶
352 (requiring the Monitor to “review . . . policies, procedures, practices, training curricula, and
programs developed and implemented under” the Decree). The task of the Monitor here is to
determine whether the most recent revised proposed policy on body-worn cameras dated
December 16, 2016 complies with the Consent Decree’s requirements. Id. ¶¶ 337-340. “[I]n
some instances, the evaluation of whether the policies include what the Decree requires is
relatively mechanical.” Dkt. 83 at 14. The Monitor needs to determine, for example, whether
the policy complies with the fairly specific requirements laid out in the Decree for supervisor
review of recordings and random audits, id. ¶ 339, and whether the policy provides for adequate
discipline for failure to activate a camera consistent with the policy, id. ¶ 340.
“However, in other instances, the [policies] must comply with more general provisions or
provide more significant detail than the Consent Decree provides.” Dkt. 83 at 14. Because the
provisions of the Consent Decree regarding the body-worn camera are not necessarily as
comprehensive or detailed as other provisions in the Decree, the review of the body-worn camera
policy falls broadly within this type of analysis. Accordingly, “the task of the Monitor is to
6

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 7 of 19. PageID #: 1440

determine whether this additional material is consistent with the Consent Decree’s overriding
guidelines, requirements, and principles.” Id. at 14. As always, the Monitoring Team’s
assessment of these elements is informed substantially by the policies of other police
departments across the country that have implemented body-worn camera technology; the
resources and work of national organizations including the Department of Justice’s Community
Oriented Policing Services (COPS) Office and the Police Executive Research Forum (PERF);
and the experience and technical backgrounds of Monitoring Team experts.
As the Monitor has noted previously, the Decree requires that all policies are not only
developed but also are effectively implemented. Dkt. 83 at 13; Dkt 7-1 ¶ 351. Policies “must
exist not simply on paper but in practice such that” officers are “affirmatively comply[ing] with
them, day in and day out.” Dkt. 83 at 13. Here, the Monitoring Team observes that CPD’s prior
Wearable Camera System policy, General Police Order 3.2.20, “has been in effect since
February 2, 2015.” Cleveland Division of Police Divisional Notice Number 16-372 (Dec. 1,
2016). However, it has only been since December 1, 2016 – 22 months after being initially
published – that “members found to be in violation” of the camera policy “shall be subject to
disciplinary action.” Id. Thus, it is not clear whether any policy related to body cameras could
fairly be considered effective in practice within CPD at this time.
III.

ANALYSIS OF THE POLICY ON WEARABLE CAMERA SYSTEMS
This section summarizes the main provisions of the proposed policy on wearable camera

systems, including describing various provisions which have been revised to comply with the
Monitor’s recommendations and which the Monitor now deems sufficient. It then addresses the

7

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 8 of 19. PageID #: 1441

specific problems with regard to the Policy’s continued failure to require that officers use bodyworn cameras while engaging in secondary employment.
A.

Summary of Proposed Body-Worn Camera Policy

The Proposed Policy “establish[es] guidelines for the use, management, storage, retrieval,
and supervision regarding the [WCS].” Ex. A at 1. It sets forth that the policy of the Department
is that “WCS shall be deployed to ensure transparency and foster trust in our community.” Id. at
1. It then sets forth clear and straightforward guidance regarding when the WCS must be
activated, id. ¶ I-A – that is, placed into “event mode” from “buffering mode,” in which ongoing
footage is captured but “recorded over” in a security-camera-style recording loop of
approximately thirty seconds or so. The Proposed Policy provides that, if placing the camera in
“event mode” is “not feasible due to an immediate risk to the safety” to the officer or others, the
officer shall activate it “as soon as the immediate threat has been addressed.” Id. ¶ I-B. The
Proposed Policy then gives a non-exhaustive list of examples for when the camera must be
deployed, id. ¶ II-B-1-a, and sets forth those circumstances in which the camera can be returned
to buffering mode, primarily to protect citizens’ privacy or in situations where consent is needed
to record and is not given. Id. ¶ II-C. This is a substantial improvement on earlier versions of
the Proposed Policy which contained convoluted and unnecessarily confusing language
governing when to place the BWC unit into event mode. The Proposed Policy prohibits officers
from editing, deleting, or altering the recordings, id. ¶ I-C, has a number of other provisions
regarding officers’ responsibilities for handling their cameras, id. ¶¶ I-C, I-E, I-F, and also
requires comprehensive and continuous training, id. ¶ IX. Although the Monitoring Team still
believes that the exceptions to the “default rule” regarding when cameras must be activated could
8

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 9 of 19. PageID #: 1442

be further streamlined and structured, it finds that, overall, the Proposed Policy succeeds in
“provid[ing] clear guidance and training on their use,” as required by the Consent Decree. Dkt.
7-1 ¶ 337.
The Proposed Policy further sets forth that officers “shall be subject to the disciplinary
process for intentional, repeated or otherwise unjustified failure to activate their WCS in
violation” of the policy, ¶ I.I, consistent with the Consent Decree’s requirement that “[o]fficers
will be subject to the disciplinary process for intentional or otherwise unjustified failure to
activate body worn cameras in violation of CDP policy.” Dkt. 7-1 ¶ 340. It properly requires
documentation of the reason that the camera “has been returned to buffering mode” from event
mode. Ex. A, ¶ II-B-h. It also delineates the responsibilities of supervisors, satisfying the
Consent Decree’s requirements that supervisors “review recordings” in various situations, Dkt.
7-1 ¶ 338, Ex. A ¶ III-A-5, and “conduct adequate random and directed audits” of recordings.
Dkt 7-1 ¶ 339; Ex. A ¶ IV. Finally, the Proposed Policy sets forth various rules regarding the
retention and storage of the recordings. Ex. A ¶ VIII.
Collectively, the Monitoring Team concludes that, with the exceptions of Sections I-G,
V, and VII-G, the provisions and requirements of the Proposed Policy represent substantial
progress toward meeting the Consent Decree’s requirement that, having chosen to use bodyworn cameras, CPD “will provide clear guidance and training on their use, and will implement
protocols for testing equipment and preservation of recordings to foster transparency, increase
accountability, and build trust, while protecting the privacy rights of individuals.” Dkt. 7-1, ¶
337.

9

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 10 of 19. PageID #: 1443

B.

The Proposed Secondary Employment Provision Does Not Satisfy the Consent
Decree.
Section V of the Proposed Policy fails to satisfy the Consent Decree because it does not

require that officers engaged in secondary employment use WCS consistent with the Proposed
Policy. Under the Proposed Policy, the “[u]se of WCS while working authorized secondary
employment is recommended but not required.” Ex. A ¶ V. “Secondary employment” means
“any occupation, vocation, profession, trade or business (other than Division employment) for
which wages or anything of value is received.” Id. at 2. Thus, the Proposed Policy sets up two
different sets of rules: one for officers wearing the uniform and carrying City-issued equipment
when they are working a City shift and another for officers wearing the uniform and carrying
City-issued equipment when they are working for private employers.
There are a number of reasons that it is necessary – and indeed essential – that officers
engaged in law-enforcement-related secondary employment be required to wear body-worn
cameras consistent with the requirements of any consistent and transparent body-worn camera
policy. First of all, the Department mandates that “[t]he rules and regulations of the Division
govern its members when engaged in secondary employment,” and Division personnel are
required to “carry their Division issued” equipment when working secondary employment. See
GPO 1.1.25 at 1. Even though they are not directly working for the CPD, officers engaged in
secondary employment – for example, serving as security at sporting events or in other public
venues – are subject to the same rules regarding carrying firearms and wearing their uniforms as
they would be when serving as officers. There is no logical reason to carve out the use of
something as important as WCS from these requirements.

10

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 11 of 19. PageID #: 1444

Second, a system where one set of rules applies to officers working a City shift while
another set of rules applies to officers working for a private employer fosters confusion, not
confidence, among the Cleveland community. To members of the public, it is not apparent
whether the officer is serving in his or her capacity as an officer employed by the CPD, or is an
officer of the CPD engaged in secondary employment. Indeed, the Monitoring Team suspects
that relatively few Cleveland residents know that the officers wearing their CPD uniforms and
carrying their CPD-issued equipment at Cavaliers and Browns games are typically being paid by
those organizations – not the City.
Moreover, when engaged in secondary employment, officers are often called upon to
exercise their law enforcement responsibilities – including exercising the use of force as
appropriate. Indeed, that ability to demonstrate, and if necessary exercise, the authority of law
enforcement is a significant reason that private employers want to hire officers. Under the
Division’s Proposed Policy, uses of force, “investigative or enforcement contacts with the
public,” or “other contact[s] . . . that may or do[] become adversarial” are required to be filmed
by body cameras. Id. ¶ I-A. The public is not able to differentiate between an officer serving as
an officer and an officer engaged in secondary employment. If an officer engaged in secondary
employment were to, for example, use force (as has happened on occasion), the public would not
be aware that that officer – in uniform, carrying a Department-issued firearm – was actually not
serving as an officer but was in fact off the job and engaged in secondary employment. The
failure of that officer to be using a body-worn camera in such circumstances and the absence of
such footage would foster confusion and ultimately detract from the goals of transparency,
accountability and trust that are at the heart of the Proposed Policy and the Consent Decree. Ex.
11

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 12 of 19. PageID #: 1445

A at 1; Dkt. 7-1 ¶ 337. Given that the line between an officer acting as an officer or acting in
secondary employment is blurry at best to the public, it is simply not possible to draw a line
between the two with regard to policies regarding the use of body-worn cameras, at least not if
the purpose of the body-worn cameras is to “foster transparency, increase accountability, and
build trust while protecting the privacy rights of individuals.” Dkt 7-1, ¶ 337.
There are also no legitimate policy reasons not to include secondary employment in the
Proposed Policy. As noted above, most of the Division’s other rules and regulations typically
apply to officers engaged in secondary employment, for good reason – since they are offered
such employment precisely because they are law enforcement. Numerous other departments
require their officers to comply with their body-worn camera policies while engaged in
secondary employment.4 The City argues that, in at least some of the jurisdictions where officers
must wear and use body cameras when engaged in law-enforcement-related secondary
employment, the secondary employment programs are centralized, administered, and overseen
by the department or city itself. Accordingly, the City says that a requirement to wear and use
cameras during secondary employment is not feasible because the City has no relationship with
the secondary employer. However, the Monitoring Team understands that the Cleveland Police
Patrolmen’s Association has been supportive of a system of administering secondary
employment more centrally, along the lines of how secondary employment works within the

4

These departments include, but are not limited to: Louisville, Kentucky; Mount Rainier,
Marlyand; Prince George’s County, Maryland; Queen Anne County, Maryland; Minneapolis,
Minnesota; Asheville, North Carolina; Concord, North Carolina; Durham, North Carolina;
Greensboro, North Carolina; Oklahoma, City, Oklahoma; Pittsburgh, Pennsylvania; Murphy,
Texas; and Suffolk, Virginia.
12

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 13 of 19. PageID #: 1446

Columbus Division of Police.5 Thus, if the centralization or lack of centralization of secondary
employment is a significant enough issue to impose a barrier on implementing a body camera
requirement – which the Monitoring Team does not believe – the City, CPD, its officers, and
secondary employers desiring the skills of CPD personnel might make changes in the way that
secondary employment works within the Division. Further, although the Division’s secondary
employment is not centrally administered or overseen, the Chief of Police and Director of Public
Safety have ultimate oversight, as they are able both to authorize original secondary employment
requests and “revoke authorization to work secondary employment based upon the operational
needs of the Division.” GPO 1.1.25 at 1. Thus, the Chief and Public Safety Director can put
secondary employers, and CPD officers, on notice that body camera use while working such jobs
is now a practical, community, and operational need of CPD.
Importantly, the use of body-worn cameras in secondary employment does not present
any serious logistical complications. The main concerns with regard to mandating the use of
cameras on secondary employment that the City and CPD have identified are: (1) the possibility
that the officer may have to spend time categorizing, tagging, and uploading the video from the
secondary employment shift and ensuring that the camera is sufficiently charged and powered up
before the officer is required to use the camera on a shift with the Department, and (2) the need
to provide storage space for that video. The City and the CPD do not want to be responsible for
compensating the officer for time taken to do these activities in connection with the video from
the secondary employment or for absorbing the costs of storage.

5

See COLUMBUS POLICE DIVISION DIRECTIVE 9.15, (2015), http://www.columbuspolice.org/
FormsPublications/Directives/Directives/DirectivesNew2015/9.15.pdf.
13

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 14 of 19. PageID #: 1447

These granular logistical and extremely limited budgetary implications, while important,
are not so critical as to justify creating a gap in the use of body-worn cameras that will impede
the transparency, accountability and trust that the Proposed Policy, and the Consent Decree, are
designed to foster. First, there is no indication that time and costs will be prohibitive. The
filming, tagging, and uploading of video will not be required after every secondary employment
stint but, instead, only when the camera had to be activated pursuant to the Proposed Policy – or,
in other words, in connection with “investigative or enforcement contacts with the public, or
other contact with the public that may or does become adversarial after the initial contact.” Ex.
A ¶ I-A. It is not clear how often such circumstances occur, but none of the CPD, City,
Department of Justice, or Monitoring Team have reason to think that they happen on every or
even on most secondary employment jobs. More importantly, and regardless of how often they
happen, these are circumstances in which the officer is expressly pivoting to law enforcement
activity – and which could result in potential use of force, which is unambiguously the subject of
the Consent Decree. These are, as well, the exact situations in which the public will view the
officer, though engaged in secondary employment, as in fact a law enforcement officer. In turn,
these are the exact circumstances in which body-worn cameras are essential to ensuring public
trust and accountability in the CPD. The Monitoring Team believes that, although the uniform
use of cameras during secondary employment shifts would be a change from past practice within
CPD, the City of Cleveland and the Division should explore proactive and creative ways to
address the logistical issues that they say make a secondary employment BWC requirement
impossible. The Monitor suspects that it may be possible, for instance, for the City and CPD to
assist its members in ensuring that secondary employers get the skills and experience of CPD
14

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 15 of 19. PageID #: 1448

officers while minimizing any potential costs to the City. Because private employers derive
tremendous benefits from hiring CPD officers, hire them precisely because they are CPD
officers, and have to be approved by the CPD to do so, the Monitoring Team suspects that many
secondary employers will believe it eminently sensible to absorb the minimal costs associated
with time for officers to tag and log incidents captured during their shift.
In short, the Monitoring Team believes that the same rules must apply to officers engaged
in secondary employment as on their regular shifts with the CPD with regard to using body-worn
cameras. Such uniformity will minimize public confusion and mistrust when officers engaged in
secondary employment exercise law enforcement authority or use force. The availability of
video regardless of the nature of the officer’s employment will ensure that the CPD’s body-worn
camera policy is employed to maximize public trust, accountability, and transparency – and that
use of force and other critical incidents will be captured on video, regardless of what employer is
paying a CPD officer for their services.
The Monitoring Team must emphasize here that it is expressly not attempting to make it
more challenging or problematic for officers to work jobs outside of CPD. Indeed, the Team is
aware that the current salaries and wages paid to CPD personnel – which is lower than the
compensation of most nearby police departments and of similarly-situated urban police
departments nationally – make it necessary for many officers to work second jobs to provide for
themselves and families. Nothing about the opportunity for CPD personnel to work second jobs,
given those opportunities are vetted and approved by the Division to ensure against conflicts of
interest or job duties that would conflict with the Division’s rules, is inherently problematic.
G.P.O. 1.1.25 at 1 (requiring “written permission by the Chief of Police and the Director of
15

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 16 of 19. PageID #: 1449

Public safety” to “engage in secondary employment if the work does not interfere with Division
employment and there is no conflict of interest between the work and the Division”); see Richard
B. Weinblatt, “Managing Off-Duty Jobs: A Clear Policy Is the Key to Success,” 47 LAW &
ORDER 84 (1999) (“Given that police officers view off-duty employment as essential,
particularly in locales where officer pay is low, law enforcement managers are responsible for
ensuring that clear policies and guidelines for such employment are in place.”). Instead, the
Monitor only contends that CPD’s officers should be able to benefit from the same technology,
tools, and standardized understanding that the Division’s rules apply to them regardless of who is
paying them or under what circumstances they are wearing the uniform.
C.

The Proposed Policy’s Treatment of When Officers May and May Not View
Captured Video Is Premature.
Section I-G of the Proposed Policy outlines rules and regulations relating to when

officers may and may not view video. That issue is important. However, because the Consent
Decree process has only just begun to focus on policies and manuals relating to use of force
incidents and internal investigations, any definitive conclusions about how video and force
investigations simply cannot be definitive at the current juncture. Consequently, the Monitoring
Team neither approves nor disapproves of Section I-G of the Proposed Policy at this time,
pending approval by this Court of policies and manuals relating to force investigations and
internal investigations.
D.

The Proposed Policy’s Treatment of Public Access and Disclosure Issues Is
Better Suited for a More Specific and Comprehensive Policy on Public
Disclosure Of, and Access To, CPD Information and Data.
Section VII-G of the Proposed Policy addresses how the Cleveland community may be

able to view incidents captured on body-worn cameras. The Monitoring Team finds the uniform
16

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 17 of 19. PageID #: 1450

mechanism of a public disclosure request to be overly formal, time-consuming, inefficient,
onerous, and insufficiently consistent with the Consent Decree’s express objective of
“increas[ing] transparency.”

Dkt. 7-1 at 1.

The Monitoring Team observes that other

departments and other cities have extensive, standalone policies and protocols governing the
release to the media, individuals, and the general public of captured video. Although the
Monitoring Team agrees that public access and disclosure issues must be addressed by CPD and
City policy, the Monitoring Team concludes that the provisions are better suited for a more
specific, comprehensive policy relating to the transparency of CPD information and data.
Consequently, the Monitoring Team recommends approval of the Proposed Policy without the
inclusion of Section VII-G.

VII.

CONCLUSION
The task of the Monitor was to duly consider whether the City’s submitted proposed

policy on WCS satisfies the terms of the Consent Decree. The Monitoring Team concludes that,
with three exceptions, it does.
First, because it does not mandate the use of body-worn cameras pursuant to the
Proposed Policy while officers are engaged in secondary employment, Section V of the Proposed
Policy does not meet the Consent Decree’s requirements of fostering transparency,
accountability, and trust. The Monitoring Team requests that this Court convene a public

17

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 18 of 19. PageID #: 1451

hearing to explore this deficiency and determine a specific process and timetable for the City to
comply with the terms of the Decree.
Second, because work on policies and manuals relating to force and internal
investigations needs to be completed before parameters as to when officers may and may not
view video may be definitively determined, the Monitoring Team neither approves nor
disapproves of Section I-G of the Proposed Policy at this time – but expects that the Proposed
Policy will be revised in light of the proposed policies and manuals on force and internal
investigations. The Monitor recommends that the Court neither approve nor disapprove of
Section I-G until it can consider those policies and manuals.
Finally, because CPD and the City of Cleveland’s protocols on public access and
disclosure to captured video must be substantially more comprehensive, the Monitoring Team
recommends approval of the Proposed Policy without the inclusion of Section VII-G and
requests that the Court direct the City and CPD to develop a separate, standalone policy on
public access to, and disclosure of, CPD information and data – including but not limited to body
camera footage – for its approval.

Respectfully submitted,

/s/ Matthew Barge
MATTHEW BARGE
Monitor
234 5th Avenue, Suite 314
New York, New York 10001
18

 Case: 1:15-cv-01046-SO Doc #: 92 Filed: 12/19/16 19 of 19. PageID #: 1452

Tel: (202) 257-5111
Email: matthewbarge@parc.info

CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2016, I served the foregoing document entitled
Motion Regarding Cleveland Division of Police Wearable Camera System Proposed Policy via
the court’s ECF system to all counsel of record.

/s/ Matthew Barge
MATTHEW BARGE

19