SAN MARCOS POLICE DEPARTMENT
The city of San Marcos released a new Crisis Communication Policy that became effective July 12 in response to public outcry for transparency related to officer-involved shootings. According to the city, this is the first policy of its kind. When it comes to the release of body-worn camera footage in an officer involved shooting, the policy stipulates that it may be released to the public or the family of the deceased if it “furthers a law enforcement cause.”
“The purpose of the Crisis Communications Policy is to ensure that San Marcos residents, residents in the surrounding area, city employees and their families, visitors and the media are kept informed in case of a law enforcement crisis,” the policy states. “This plan will serve as a framework for how to communicate effectively with stakeholders during a law enforcement crisis.”
San Marcos Police Chief Stan Standridge released a video detailing the new policy.
“We gathered feedback from community comments, including those voiced during council meetings, insights from the citizen-led Chief’s Advisory Panel, input from the [Hays County] District Attorney [Kelly Higgins], and our own experiences as we’ve walked through crisis situations,” Standridge said. “Our primary goal with this policy is to ensure that during a crisis, whether it is a mass casualty incident, an officer- involved shooting or any other critical situation, that we communicate timely, accurate and effective information.”
During a crisis, senior management from the Police Department and the City Manager’s Office will implement the Incident Command System, which will be established based on the scope and severity of the crisis. If warranted, a full Unified Command will be established by the Police, Fire and EMS departments within the first hour of the crisis. When this occurs, crisis communications are the responsibility of Unified Command, until delegated.
The policy states that for other crises that do not necessitate full Incident Command System implementation, the Police Department will identify Incident Command at the site. This includes officer-involved shootings.
The Police Chief or his designee will be the official source of information during the crisis, and he will work with the Director of Communications to communicate with internal and external stakeholders. The Director of Communication’s role is to assist with accurate and timely messaging and serve as an alternate spokesperson when appropriate.
The policy states that a communications specialist will respond to the site to coordinate media inquiries and updates. This specialist, with coordination from the Director of Communications or his or her designee, will use appropriate public messaging to provide timely information to citizens.
Initial information about the nature of the crisis will be released within two hours, and updates will be provided as new information becomes available. The Police Chief or his designee will hold a scheduled press conference within one to two business days, if not sooner, to provide timely information. “A written release shall accompany the press conference and be communicated to citizens.”
“As new details emerge, we will strive to keep you updated through our social media, our website, press releases and within two business days, if not sooner, a press conference,” Standridge said.
The policy states that media updates will be provided as needed as facts become known to the Police Department, either through a press conference or other appropriate public message avenues, to ensure accurate information is communicated. This is intended to ensure the public understands what is happening and how departmental policies and priorities are being implemented.
No later than 30 calendar days after a crisis event, the Police Chief will provide a briefing to the City Council in Executive Session to allow for the discussion of legal or personnel matters.
For matters involving a potential prosecution associated with the crisis, the Police Chief will consult with the District Attorney to determine whether the release of specific facts or evidence may interfere with the potential prosecution.
If the crisis relates to a police officer’s use of deadly force during an interaction with police, when feasible, and not more than 30 calendar days after the crisis as well as after consultation with the District Attorney, the Police Chief will coordinate a meeting with any deceased person’s immediate adult family members over the age of 18 and their legal representative, if any.
The policy states that if any part of the crisis was recorded by a body-worn camera, then the department must comply with Chapter 1701 of the Texas Occupations Code and Chapter 552 of the Texas Government Code governing the handling of footage captured by bodyworn cameras used by law enforcement agencies in the State.
Body-worn camera footage, which is or could be used as evidence in a criminal prosecution, is subject to the requirements of Chapter 552 of the Texas Government Code, and Chapter 1701.660(b) of the Texas Occupations Code. These provisions allow a law enforcement agency to release bodyworn camera footage if doing so furthers a law enforcement purpose. “In deciding what constitutes furthering a law enforcement purpose, the Police Chief shall discuss the matter with the District Attorney as to whether the agency will release the footage to the public.”
Texas Occupations Code 1701.660 Recordings as evidence states that a recording created with a body worn camera and documenting an incident that involves the use of deadly force by a peace officer or that is otherwise related to an administrative or criminal investigation of an officer may not be deleted, destroyed or released to the public until all criminal matters have been finally adjudicated and all related administrative investigations have concluded. The exceptions under this law are that law enforcement can permit either the person depicted in the video or, if deceased, the authorized representative to view the video if the law enforcement agency determines that the release “furthers a law enforcement purpose.” It also states that the video can be released to the public if it “furthers a law enforcement purpose.”
The policy states that in addition to the protections found in Government Code Chapter 552 and in the absence of the need to further a law enforcement interest, there are mandatory provisions requiring the withholding of these body worn camera videos in Chapter 1701 of the Texas Occupations Code. Occupations Code Section 1701.660(a) provides that body worn camera videos related to use of deadly force or administrative or criminal investigations of an officer may not be released until related criminal matters are finally adjudicated and all related administrative investigations have concluded, or in other limited circumstances found in the Texas Occupations Code. The determination of when the criminal proceeding is finally adjudicated and when the administrative investigations have concluded will depend on the facts of each situation. In some cases, the criminal proceedings are concluded after a grand jury issues a “no bill” and the District Attorney subsequently declines to prosecute anyone involved in the incident. In other cases, a grand jury may indict persons involved in the incident that resulted in the use of force, sometimes including police officers. In these instances, the criminal proceedings would not be concluded until a much later time. The length of this process will vary depending upon whether the proceedings result in a trial, plea bargain or appeal. Any administrative investigations may be concluded before or after the criminal proceeding, if any, is concluded.
Standridge said that he understands that impacted families need answers.
“We’ve consulted with our Hays County District Attorney Kelly Higgins who emphasized that these incidents are thoroughly investigated and reviewed by a Grand Jury,” Standridge said. “A Grand Jury, a group of citizens representing our community, determines when there is probable cause to formally charge someone. To protect the integrity of those investigations, any video footage, such as body-worn camera recordings, will be withheld from public release until after the grand jury has reviewed the matter. This prevents any undue influence on witnesses, and it ensures that the Grand Jury’s decision is based solely on the facts and evidence.”
While Higgins has remained steadfast in his opinion that the release of such video could jeopardize the integrity of investigations, it isn’t an opinion shared by all.
The American Bar Association published Ethics and the Pretrial Release of Police-Involved Shooting Videos by J. Vincent Aprile II in Criminal Justice, Volume 37. In that article, Aprile argued that if body-worn camera footage is favorable to the officers, their legal defense team will likely present it at trial. If it is unfavorable to the officers, the alleged victim or perpetrator’s defense team, or legal team representing the family, will likely present it at trial or in a civil proceeding.
“If the video of the shooting is relevant and admissible and will undoubtedly be shown to the fact-finder in any subsequent trial, whether criminal or civil, how then could its precharging release ‘have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter?,’” Aprile wrote. “The almost immediate public release of a police-shooting video has little chance of creating ‘clear and present danger’ to a subsequent trial.”
Under Texas Government Code 552.108 Exception, notwithstanding other law, a prosecutor may permit a person to view the following evidence of a crime that resulted in the death of a person and that occurred in the prosecutor's jurisdiction, including video evidence of the crime, if the person viewing the video is a victim of the crime or a family member of a victim of the crime. A person permitted to view video evidence may not duplicate, record, capture or otherwise memorialize the information. A prosecutor may require a person to sign a confidentiality agreement before permitting the person to view the information.
“The policy allows for discussions about permitting family members to view the footage in accordance with the law,” Standridge said.
The policy states that section 1701 .660(a-l) and (b) of the Occupations Code contain exceptions to the mandatory withholding provision found in Section 1701.660(a). In particular, a law enforcement agency may release video footage captured by a body-worn camera that depicts an officer’s use of deadly force if the agency determines the release will further a law enforcement purpose. The policy gives this example of furthering a law enforcement cause; the video depicts a suspect who poses an immediate threat to the community, and dissemination of his or her photo from the video will assist in their identification. The term “law enforcement purpose” is not further defined in the statute. The policy further states that this situation would “rarely occur.” It states that the decision to show the body-worn camera footage to the public, if made by the Police Chief, would be communicated to the City Council by the Police Department, the City Manager or the Communications Division. Before releasing a video, the Department will evaluate whether or not the video or parts of the video must be withheld from the public under other law, such as Occupations Code Section 1701.661(f ).
For footage depicting the use of deadly force by a police officer, the Police Chief, after consultation with the District Attorney, may allow the immediate family members or authorized representative of a person killed by the use of deadly force to view the footage at the Department if the Police Chief determines that the viewing furthers a law enforcement purpose or at the offices of the District Attorney if the District Attorney determines the viewing may aid in their investigation in connection with a possible prosecution related to the incident. The persons viewing any such recordings may not duplicate or capture the video, and measures must be taken to ensure such persons do not have recording devices when viewing.
The policy states that the name or names of the involved officer or officers involved in a deadly force incident will not be released until after a Grand Jury review or other final determination in writing from the District Attorney that no prosecution related to the incident will be pursued.
Standridge said that he knows that through actions and not words alone.
“That is why we have included measures to review and improve our communication strategies after each crisis,” Standridge said. “We will gather feedback to ensure that we are always improving and serving you better. We are committed to keeping San Marcos safe and informed.”
