Would a body camera have answered questions about Michael Brown’s shooting?

August 21

In posts over the last several days, found here, here, and here, I wrote about criminal charges that might (or might not) be appropriately filed in the Michael Brown shooting case, depending on the evidence that might become available.  Today I want to write about evidence that we know will not become available: evidence from a body camera worn by the shooting officer.  Of course, the officer was wearing no such camera.  Should he have been?

Interestingly, the Ferguson police department this spring reportedly had purchased two dash cams and two body cameras, but ultimately lacked the money to install them.  Other police agencies around the country are in the process of examining whether to more generally provide body cameras, with media reports in the last week suggesting that testing is ongoing in cities such as Houston, Rochester, and elsewhere.

The logic behind body cameras is obvious: The video recording will provide an objective record of what happens in police-citizen encounters, thus providing both an incentive for the officer to behave properly and a later record to prove that he behaved properly if questions are raised.  But is the logic sound?

A recent study from the U.S. Department of Justice’s Office of Justice Programs suggests that we really don’t know one way or the other.  The study reports that:

„Independent research on body-worn camera technology is urgently needed. Most of the claims made by advocates and critics of the technology remain untested. Federal agencies that support research and development should consider providing funding streams for comprehensive research and evaluation of body-worn camera systems. Researchers should examine all aspects of the implementation and impact of the technology—from its perceived civilizing effect, evidentiary benefits, and impact on citizen perceptions of police legitimacy to its consequences for privacy rights, the law enforcement agency, and other outside stakeholders.

The study also suggests some problems to implementing body cameras, which perhaps are less obviously recognized.  Perhaps the most serious problem is the question of citizens’ privacy.  If the body camera includes audiorecording, for example, it might run afoul of state law requiring consent for two-party recordings.  The Seattle, Wash. Police Department, for example, concluded that implementing body cameras would expose officers to civil suits unless a legislative exemption were added to the recording law.

Another concern has come from police officers themselves. For example, in 2013, a federal judge ordered NYPD officers to wear cameras to prevent abuses during stop-and-frisk activities.  Reportedly the response from the officers has been “almost universally negative.” Among the officers’ concerns is the ability of supervisors to go on fishing expeditions to try and find some grounds for discipline.  Some police unions have also suggested that requiring officers to wear body cameras is a change in working conditions that must be approved through collective bargaining.

Not surprisingly, another concern (demonstrated by the experience of Ferguson’s police department) is the expense of body cameras.  The expenses comes not so much from the cameras themselves (they seem to run about $500) as associated costs from storing the images, dealing with public records requests (including redaction issues), and coordinating the prosecutors officers to produce the evidence.

In spite of these concerns, however, my sense is that powerful benefits may result from using cameras.   Earlier this week, the Wall Street Journal published a story about the use of body cameras by police in Rialto, California.  According to the story, “the use of force by officers declined 60%, and citizen complaints against police fell 88%.”  The story was based on a study by the Police Foundation, and for those interested in the full report, it can be found here.  Anecdotal evidence from other police agencies suggests similar results, as found in this Washington Post story from last fall about the Laurel Police Department.

Last fall the ACLU called for uniformed police officers to wear body cameras, providing that appropriate privacy protections were put in place.  The idea certainly seems worth serious exploration, particularly given the tremendous public concern that Ferguson has prompted about police shootings.  My sense is that recordings could well have the potential to defuse controversy about police behavior.  Twenty years ago, I suggested that police should record custodial interrogations, arguing that this would be a better approach to regulating police questioning than the inflexible Miranda rules.  If the concerns listed above can be overcome, then more broadly recording police behavior would seem to be a good thing.  Certainly the existence of a recording of the events surrounding the Michael Brown shooting would have been useful in eliminating some speculation about a police “cover up.”

An illustration of  how things could have played out with a recording comes from my home town of Salt Lake City. Michael Brown was shot on Aug. 9.  Two days later, on Aug. 11, a Salt Lake City police officer shot an unarmed man here outside of a 7-11.  The shooting has been controversial, and there were even protestors about the shooting several days.  But the concern about whether the police were somehow “covering up” what happened has, I believe, largely dissipated with the announcement that the shooting officer was wearing a body camera.  The Salt Lake City Police Department has promised that they will release the video of the shooting in several weeks, at the conclusion of the investigation.

The introduction of body cameras has been a new innovation, designed to increase “transparency” in the Salt Lake City Police Department.  Salt Lake City Police Chief Chris Burbank has said  that his officers know “they’re going to be exposed a little bit to public scrutiny.  That’s not a bad thing because I am convinced that the majority of the time it will document outstanding police work. And it has thus far.”

The public will probably never know for certain whether the shooting of Michael Brown was  completely justified or completely unjustified.  But the old adage is that cameras never lie.  It’s time for to seriously explore expanding the use of body cameras by uniformed — and armed — police officers.

Update: An alert reader (bharshaw) points out that the New York Times has an article on police body cameras today, found here.

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah.
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