In early September, after a South End man used his cellphone camera to snap a photo of a graffiti artist, Burlington Police Chief Michael Schirling cautioned residents  not to take law enforcement into their own hands.
But less than two weeks later, the department loaned a video camera to a North Willard Street resident for the purpose of documenting criminal activity on his property.
Deputy Chief Walt Decker said the resident was instructed to set up the police camera in his living room and aim it at his backyard, where college-aged students had allegedly been urinating, trespassing and making noise. Police records show officers have responded to a half-dozen calls from the resident since April. The resident’s property, on the first block of North Willard, is close to the site of a recent violent altercation between teens fighting over a girl.
Private businesses are free to set up surveillance on their own property — and the footage often helps police, as it did when a Perrywinkle’s Fine Jewelry camera captured an image of now-convicted murderer Brian Rooney with his victim Michelle Gardner Quinn. The Burlington Police Department has been known to provide cameras to local merchants, according to Decker. But this marks the first time the cop shop has outfitted a private resident with one.
Decker said attempting to document crime with a camera from the privacy of one’s home is different from following a suspected vandal and taking his picture, as the South End resident did, because it doesn’t lead to “confrontation.”
“We like to think that we’re fair, we’re balanced, and we don’t engage in something that’s going to violate someone’s civil rights,” Decker said.
But it very well may, said Alan Gilbert, executive director of the Vermont American Civil Liberties Union . By loaning a police camera to a private resident, Gilbert argued, BPD has effectively “deputized” him, and the City of Burlington could be liable under a state law if the subjects of the video surveillance were to sue.
The “Safe Communities Act ,” also known as Act 83, made voyeurism a crime in Vermont. Passed in 2005, the law makes it illegal to photograph or film the “intimate areas of a person,” as well as to disseminate the images.
According to Gilbert, Act 83 protects citizens’ “reasonable expectation of privacy.” He speculated that, if someone who happened to be captured on film filed a lawsuit, “The city would also get sued, because they were the ones who supplied the camera.”
Decker defended the practice. The department isn’t “deputizing” residents, he said, but rather enlisting their help in gathering information, just as an officer might ask a resident not to disturb a crime scene. “Police will, from time to time, engage property owners and encourage them to install and use surveillance systems,” Decker said. “They are both deterrents and important evidentiary pieces in addressing crime.”
Decker said the North Willard Street resident has been working with the department “for a number of years to address and reduce the problems regarding property and behavior in that neighborhood.” He also stressed that the department instructed the resident to restrict filming to his property, and he has no reason to fear that would lead to a violation of Act 83.
“If someone wanted to engage in voyeurism or engage in some type of criminal activity,” Decker argued, “why would they go and engage the assistance of the police department, who could potentially be charging them if they committed that type of crime?”
But, apparently, the department never investigated the legal ramifications before loaning the camera. Burlington City Attorney Ken Schatz said he was not aware that a city resident was using a video camera owned by the police department to videotape trespassers.
But, generally speaking, Schatz said, the city would not be liable for the illegal activities of private residents. He referred additional questions to Chittenden County State’s Attorney T.J. Donovan, whose office handles lawsuits related to state statues.
Like Schatz, Donovan first heard about the BPD security protocol from Seven Days. In a phone interview, Donovan praised Schirling’s efforts to work collaboratively with residents. But he also acknowledged that, if the North Willard Street resident ever used a police camera in an inappropriate way, it could be a violation of his neighbors’ constitutional rights.
“Someone clearly has an expectation of privacy in their home, in parts of their car,” said Donovan, who plans to talk with Schirling when the chief returns from an overseas vacation. “Are we imputing state action to a private individual?”
Decker maintained that other Vermont police departments, including South Burlington, allow property owners to shoot video footage with police cameras. But South Burlington Police Chief Trevor Whipple said his department does not loan surveillance gear to individual residents.
“I don’t know of any handheld video camera that we could loan out,” Chief Whipple said. “We’ve done something similar with radar units, but we have not done anything with video.”
Sgt. Tara Thomas of the Vermont State Police  said that, in 10 years on the job, she has never heard of a Vermont trooper loaning a video camera to a private resident. “It’s just something we’ve never done,” she said. “I guess the fact that we don’t do it should say enough.”
As for the video captured by the North Willard Street resident, Decker said that, after reviewing the footage, the department deemed it too grainy to be used in an investigation.