Burlington police officers powered down body cameras during a September encounter with a man in Colchester, Vermont who was later shot by officers. Burlington Police are now looking to learn more about the devices’ inner workings, and share what they find with the force, according to the department’s deputy chief.
The announcement that the cameras were shut off was made Monday when prosecutors announced police committed no crime in shooting James Hemingway, 20, who survived wounds to his foot and abdomen. Chittenden County State's Attorney T.J. Donovan announced Burlington Police Dept. Det. Richard Volp and Sgt. Brian LaBarge would not face any criminal charges for their role in the shooting.
Donovan said on September 20, Volp and LaBarge responded to Hemingway’s Colchester home to assist Colchester officers who had been called by Hemingway's relative. She was concerned her loved one might have been drunk, agitated, and threatening to harm himself.
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During the standoff, which was developing around 3:30 a.m., according to police records, Donovan said Hemingway repeatedly threatened to shoot officers. He was holding what officers believed to be a high-powered rifle, Donovan said.
About two hours later, as Hemingway got into his vehicle and began driving away, Donovan said police shot at the car, then shot at Hemingway himself after he exited the vehicle. A civil attorney for Hemingway said his client is still recovering, but is now well enough that he has returned to work.
"Firing their guns in the direction of Mr. Hemingway is excused, as being in the lawful defense of themselves," Donovan said of the police use of force in this case, explaining officers also saw what they thought may be a metallic weapon in Hemingway's waistband.
That metallic object turned out to be salad tongs, Donovan added, and what police thought was Hemingway's high-powered gun turned out to be an air rifle. Nonetheless, police perception over the threat the items posed was reasonable, Donovan concluded.
Volp and LaBarge had been on paid leave from the Burlington Police Dept., but now that they have been cleared of any suspicion of criminal wrongdoing, they are back on the job, according to Dep. Chief Bruce Bovat of the Burlington Police Dept.
Hemingway was cited to appear in court Tuesday on simple assault and aggravated disorderly conduct charges, Donovan said.
While the investigation into the appropriateness of officers' actions has ended with no charges, there are new questions over the way the police utilized body cameras the night of the non-fatal shooting.
Donovan said Volp and LaBarge, as well as other officers who responded, turned off the body cameras that could have recorded their interactions with Hemingway.
Police explained the decision was made to power down the cameras because they display a red light when recording, and make an occasional beeping noise, Donovan recounted. On the dark night of the standoff, police feared those lights could become targets, right on the chests of officers who said an agitated James Hemingway wanted to "hunt" them.
"We all stand here today and recognize the importance and development of body cameras in terms of providing the best evidence of what happens," Donovan said. "We support that. And we also believe in transparency. We understand the larger narrative that's going on in criminal justice not only in this state but in this country. But we're not going to do that at the jeopardy of a police officer's life."
Donovan went on to say this experience with the technology, which is relatively new to several Vermont police agencies, raised officer safety concerns he said he hopes police departments address.
"I think when you look at it from a common sense viewpoint, anybody would turn off a light that would disclose their location if somebody intended to harm them," Donovan noted, adding that Burlington is doing the right thing by asking the cameras’ manufacturer, Taser, for more information on the devices’ functions.
Hemingway's civil attorney, Ben Luna, who said he is looking into possibly filing a federal civil rights lawsuit, insisted Hemingway was not the threat police perceived him to be.
"The idea that my client would somehow be able to see a tiny pinhead red light [on a body camera], I think is a gross exaggeration," Luna said.
Luna told reporters Monday that the loss of body cam footage now means the whole case relies on the police officers' accounts. He said his client has a different perception and recollection of events from that night.
"They said my client was walking around in a hunting position," Luna said. "My client was not walking around in a hunting position looking to hunt police officers. My client was walking around in a very passive state."
Luna noted that Hemingway was experiencing a personally trying time that night, due to a recent breakup. He said Hemingway was "traumatized" by the shooting, and that he is still recovering from physical and emotional pain.
The Burlington Police Dept. said it is now actively talking with Taser, as well as revisiting training on the Axon point-of-view devices. Dep. Chief Bovat said he and his department are looking to learn if and when they can disable the red lights and sound effects during certain situations.
Chief Jennifer Morrison of the Colchester Police Dept. noted there are valid reasons for the red lights to be on cameras, because it gives people interacting with police an indicating they are being recorded. Morrison described the move to shut off the cameras as a rare one, given the unusual nature of the situation.
"How often are the police officers being 'hunted' by the person they're recording?" Morrison asked, suggesting officers wanted to shut off the red lights from their bodies as quickly as possible when they realized the lights could make them targets.
Morrison’s officers do not wear body cameras yet, she noted.
Bovat noted the situation was incredibly tense and was unfolding rapidly, and said the decision to power down the cameras was made purely out of officer safety concerns.
"The amount of thought processes with these officers as they're trying to digest everything that's unfolding around them is immense," Bovat said. "So for them to have the [wherewithal] and the mindset to think, 'This may be giving away my position' while digesting everything else? I commend them for shutting it off."
Bovat said the Burlington Police Dept. continues to believe body cameras can be great tools both for evidence gathering and transparency.
Monday evening, Dep. Chief Bovat issued an additional statement regarding the department's use of body cameras, noting there was insufficient awareness among members of his department regarding of all of the cameras' functions.
Previously, Vermont Public Radio had reported there are steps users of the cameras could take to disable the red lights but still record video.
The statement from Bovat, in full, reads:
"The investigation into the recent Colchester police-involved shooting shows that the department’s eagerness to field body cameras for the sake of increased accountability outpaced officers’ knowledge about how to use them and the creation of comprehensive policies and training for their deployment. These deficiencies will be remedied in the coming weeks.
The State Attorney’s concern that certain members of the Department may have given the State Police investigators inaccurate information about the capabilities of the camera deserves further review. The Department will fully cooperate with any investigation aimed at clarifying what was relayed to investigators and why.
The Burlington Police Department remains committed to its partnership with the region’s law enforcement agencies and will take great pains to maintain relationships of mutual trust."
Even though there was little or no video of the encounter, police and prosecutors said there is audio of the standoff. That would include a threat made over a 911 call in which Hemingway allegedly said if officers didn't leave his home, someone was going to get hurt, Donovan indicated, noting there were several subsequent threats made that evening.