In Albuquerque, a city with a long history of police brutality and corruption, police officer Jeremy Dear was fired in December 2014 after repeated incidents in which he failed to activate his body camera just before using force, including just before shooting and killing a teenaged girl. Dear also has a history of allegations of excessive force. Even after Dear was explicitly told to record all of his interactions with citizens, he sent an email asking to use his camera in “offline” mode, which would have allowed him to delete videos before they were uploaded to a cloud server. Last November, the city’s Personnel Board voted 3-2 to reinstate Dear on the police force.
In San Diego, police officials have said they (and only they) will determine which videos are released to the public and when, a policy that does little to increase transparency and public trust. A Washington Post investigation last fall found similar problems across the country. Cops accused of misconduct or excessive force were given access to footage of controversial incidents, but that footage was rarely made public.
In a hearing before a committee of the state legislature late last year, law enforcement leaders in Tennessee raised another potential barrier to the widespread use of body cameras: the cost of complying with open records requests. They raised the possibility of activist or watchdog groups requesting huge caches of video that they claimed would require weeks of labor to fulfill.
But body cameras are coming. A recent survey of the nation’s largest police departments found that 95 percent planned to implement a body camera program sometime in the near future. Body cameras are a piece of technology. And like any technology, the policies that control how they’re used will go a long way toward determining if they’re a tool for transparency and accountability, or if they’re ineffective or even counterproductive to those goals.
To that end, the Brennan Center has just completed a study of the body camera policies in the 24 police departments around the country that have so far implemented them. Of the 24, 9 programs are still in the pilot stage. For comparison, the Brennan Center also included three model programs from the ACLU, the International Association of Chiefs of Police, and the Police Executive Research Forum. The authors of the study then broke the policies down into several charts, “Recording Circumstances,” “Privacy and First Amendment Protections,” “Accountability,” “Retention and Release,” and “Security.”
So what did the Brennan Center find? Rachel Levinson-Waldman, one of the authors, says she was surprised by the inattention to privacy. “Several cities have policies prohibiting things like recording in locker rooms, bathrooms, or doctor’s offices — places where there’s concern about privacy of the body,” she says. “But there’s little concern for recordings made in people’s homes.” Only four cities prohibit officers from recording in a private home without the owner’s permission during a consent search. Another 14 cities don’t address the home at all, four explicitly allow police to record in a private home without consent, and no city prohibits recording in a home altogether.
But there are tradeoffs between privacy and accountability. Most police officers will tell you that domestic disputes are among the most contentious and potentially dangerous calls they make. There’s a strong argument for barring video of these incidents in order to protect the privacy of the victims. On the other hand, to prohibit video of those encounters would prohibit footage of a significant percentage of officer-involved shootings. That’s a problem both for determining accountability in those cases (and of course video can vindicate an officer just as easily as it can implicate) and for using real-world scenarios for, say, training in deescalation or conflict resolution. According to the Brennan Center, several police agencies leave to the officer’s discretion on whether or not to record when responding to a domestic dispute. That seems like a bad policy. But it also isn’t clear what the ideal policy would be. San Diego explicitly requires recording them, in order to document a victim’s injuries.
The same tension is at play when recording protests. Given the long history in this country of law enforcement officials identifying, tracking, and otherwise spying on political protesters, there are some understandable First Amendment concerns with providing police agencies with reels of footage of the faces of protesters. On the other hand, protests too are often the scene of violent clashes with police, and better footage of those encounters could helpful for determining who was at fault and for training purposes in the future. The privacy issues here seem less pressing than in domestic abuse cases, given that protesters have already chosen to demonstrate in public. But they aren’t without merit, either.
Another issue is who gets access to the footage. This is a important detail. As a journalist, I’d love to see all the footage made available to the public, at least in some way. Police leaders say that’s impractical, although it appears that Seattle has found a way to put the videos online while anonymizing the faces of people who appear in them. There are also questions about how long the videos should be stored. For practical reasons, indefinite storage of all body camera footage isn’t feasible. And here too, there are privacy concerns. Civil liberties groups like the ACLU would prefer video be stored for a shorter period of time to prevent misuse. But we often don’t learn about problem police officers until they’ve accumulated incidents for a number of years. So again, accountability interests come into some conflict with privacy interests.
The Brennan Center found that eight of the 25 police departments destroy after 180 days videos that aren’t evidence in an active case or aren’t likely to be part of complaint. Seven kept those videos for up to two years. Another 10 don’t have an explicit policy. If full-on public access isn’t possible, the ideal policy would be to authorize an agency independent of the police department to have complete access, such as a civilian review board. But here too, the effectiveness of that policy rests on how independent the review board is, how the review board is populated, and whether it has teeth.
One of the more interesting debates to crop up with this issue is whether or not police officers should be permitted to view body camera footage before issuing statements about use of force incidents. I don’t think they should, particularly if non-police suspects aren’t given the same opportunity. If cameras are to be a tool for transparency and accountability, rogue cops could concoct stories to fit the video. Prohibiting officers from viewing the video first of course means granting some leniency for small discrepancies and inaccuracies. The goal here is to prevent incidents were police have fabricated and collaborated to cover up bad behavior. According to the Brennan Center, 15 of the police departments surveyed allow officers to view body camera footage before writing their reports or giving a statement. Five allow police to view the video after they submit an initial report, or allow viewing only after permission from an investigator or prosecutor.
The most important issue here is accountability. That’s the whole point of body cameras. And here, things get really murky. DNA Info recently reported that as many as 80 percent of Chicago PD dashboard cameras were lacking audio, a problem police officials blamed on “officer error” and “intentional destruction.” The L.A. Times reported a similar story about L.A.P.D. cameras last year. In a recent post here at The Watch, I pointed to a number of similar incidents around the country. If police are permitted to “forget” to turn on their cameras at critical moments, destroy their cameras, or otherwise sabotage efforts at transparency, what happens?
The Brennan Center found that . . . it isn’t clear. Ten of the 24 police agencies in the study don’t have explicit policies requiring officers to explain why they didn’t record an encounter when they were required to do so. 19 have no language about discipline for failing to record. Only a few even explicitly state that failing to record when required is an actionable offense. Of those, Tampa’s policy uses the strongest language. From the Brennan Center’s summary:
Failure to record, store recordings, or misuse of the system “may result in disciplinary action.” In addition, “[i]ntentionally turning off the system in anticipation of a use of force incident or other confrontational citizen contact is absolutely forbidden, and will result in discipline up to and including termination.”
Charlotte and Ferguson, Missouri’s police departments also explicitly note that failure to record may lead to an investigation. But the Los Angeles policy illustrates how wide the gap between a state policy and its real-world application can be. According to the Brennan Center, the L.A.P.D. policy states that, “Unauthorized use or release of footage and copying, erasing, or modifying recordings is serious misconduct subject to disciplinary actions.” But when dozens of officers were found to have sabotaged voice recording equipment, the police department opted against pursuing any disciplinary action. Even if failure to record or sabotage does lead to an internal investigation, any explicit policy requiring disciplinary action will only be as good as that particular police agency’s internal disciplinary procedures. In other words, even the best policy on paper won’t be very effective if it’s implemented by an internal affairs department that never seems to find any officer misconduct. And even the best policies regarding transparency will be diluted if violations of those policies are handled by disciplinary procedures that are shielded from public scrutiny.
In the end, we’re back to the basic position that body cameras are a step toward transparency and accountability, but they aren’t a panacea. Like any piece of technology, how they’re used is critical. Sadly, if a police agency is permitted to operate in secrecy and has a history of papering over abuse and misconduct, body cameras aren’t going to do much good. And they’ll be most effective at police agencies that probably need them least, since those are the department most likely to adopt the policies needed to make them work. The most revealing thing we may learn from these policies is which cities have public officials willing to adopt and implement policies to keep law enforcement agencies accountable, and in which cities law enforcement interests wield the power.
Levinson-Waldman says that the Brennan Center project is ongoing. They’ll add new policies to the map and charts as new policy agencies implement them.