The Washington PostDemocracy Dies in Darkness

Opinion Police cameras are important, but they’re useless without policies to ensure they’re used properly

There’s no question that, had the Ferguson, Mo., Police Department mandated that its officers wear body cameras, use dashboard cameras or both, there would be far fewer mysteries about the events leading up to the shooting of Michael Brown. The department apparently had these cameras; it just hadn’t gotten around to using them.

But simply mandating that the cameras be used isn’t enough, as City Lab reports from San Diego:

Here in San Diego, our scandal-plagued police department has begun outfitting some officers with body cameras, and the City Council has approved a plan to roll out hundreds more.
Officers wearing the cameras were present during at least two shootings earlier this year. Yet we’re still not any closer to knowing what happened in those chaotic moments — whether the perpetrators can be easily identified, what kind of interactions the officers had with those present, nothing.
That’s because the department claims the footage, which is captured by devices financed by city taxpayers and worn by officers on the public payroll, aren’t public records. Our newsroom’s request for footage from the shootings under the California Public Records Act was denied.
Once footage becomes part of an investigation, the department says it doesn’t have to release them. SDPD also said during the pilot phase of the camera program that it doesn’t even have to release footage from the cameras after an investigation wraps.
I called the department Friday to see whether it’s updated any policies surrounding the cameras now that more are being doled out and the program is kicking into full swing.
“We have had very positive feedback from the officers who are using them in the field” but “there are no policy changes to the releasing of evidence from body cameras,” SDPD spokesman Kevin Mayer tells me in an email.

This is absurd. The police work for the public. The cameras were purchased with public funds. Government employees are answerable to the public, especially those who have the power to detail, arrest and kill. A police department that refuses to release dash-camera or lapel-camera footage to the public after a controversial incident is basically saying just trust us. But if the optimal goal is for the public to unquestioningly trust the police, there’s no reason to outfit cops with cameras in the first place. (It will be interesting to see if SDPD adopts the same policy when a video clearly exonerates a police officer of false allegations.)

But even when the video is considered public record — or at least is at least released to a criminal defense and attorneys filing civil rights claims during discovery — there is another problem. There have been too many examples in which an officer has “forgotten” to turn on a camera, a camera has coincidentally malfunctioned at a critical tim, or video has gone missing. I wrote about this problem in March.

In the College Park case, a campus police surveillance camera was pointed at the area where Jack McKenna was beaten. But there’s no security video of the incident. Campus police say the camera coincidentally malfunctioned at the time of the beating. A local news station reported that the officer in charge of the campus surveillance video system is married to one of the officers later disciplined for McKenna’s beating.
This is not the first time a police camera in Prince George’s County has malfunctioned at a critical time. In 2007 Andrea McCarren, an investigative reporter for the D.C. TV station WJLA, was pulled over by seven Prince George’s County police cars as she and a cameraman followed a county official in pursuit of a story about misuse of public funds. In a subsequent lawsuit, McCarren claimed police roughed her up during the stop, causing a dislocated shoulder and torn rotator cuff. McCarren won a settlement, but she was never able to obtain video of the incident. Prince George’s County officials say all seven dashboard cameras in the police cruisers coincidentally malfunctioned.
Last March, Justice Lee Ann Dauphinot of the Second Court of Appeals in Texas complained in a dissent that when defendants accused of driving while intoxicated in Fort Worth challenge the charges in court, dash-camera video of their arrests is often missing or damaged. “At some point,” Dauphinot wrote, “courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for.”

These aren’t the only examples. In fact, it has previously happened in Ferguson, Mo. Michael Daly reported in the Daily Beast last week that, when Ferguson cops beat Henry Davis after mistakenly arresting him in 2009, a jailhouse camera was supposed to be recording the area where he was beaten. Somehow, the footage of the incident was destroyed.

More recently, on Aug. 11, New Orleans police officer Lisa Lewis claims she was engaged in a struggle with motorist Armond Bennett just before she shot him in the head. New Orleans officers are outfitted with cameras, but there’s no video to verify Lewis’s version of events because she says turned her camera off just before the incident. NOPD Superintendent Ronal Serpas called this a “snafu.” One could understand if a critic were to opt for another word, like coverup. 

So in addition to making these videos public record, accessible through public records requests, we also need to ensure that police agencies implement rules requiring officers to actually use the cameras, enforce those rules by disciplining officers when they don’t and ensure that the officers, the agencies that employ them, and prosecutors all take care to preserve footage, even if the footage reflects poorly on officers.

One policy that would go a long way toward achieving those three objectives is what defense attorney Scott Greenfield calls the missing video presumption. Currently, the courts generally treat important video that goes missing as a harmless mistake. They assume no ill will on the part of police. If you discover that the police were or should have been recording an encounter that would vindicate you of criminal charges or prove that the police violated your rights, and that video goes missing, you’re simply out of luck.

Under the missing video presumption, if under the policy agency’s police there should have been video and there isn’t, then the courts will assume that the video corroborates the party opposing the police, be it a criminal defendant or the plaintiff in a civil rights lawsuit. The state could still get over the presumption by presenting other evidence, such as witnesses, medical reports, and so on. But if it’s the police officer’s word against his antagonist’s, there should be video to validate one side or the other, and that video mysteriously goes missing while in police custody, the police should have to pay a penalty in court. Otherwise, there’s just too strong an incentive for vindicating video to be leaked and for incriminating video to disappear.