Odd Bedfellows & Debate over Cop Cameras

BORDC testifies before DC City Council
October 30, 2014
Kymone Freeman
Kymone Freeman – November 2014
November 1, 2014

In an interesting post-Ferguson convergence, both police chiefs and civil-rights groups have found common ground on one idea: That cops should wear video cameras on duty. Apparently, the Ferguson police department had recently acquired body cameras but had not yet begun to wear them. If Darren Wilson had been wearing one (and if it had been on) we would have a video of the killing of Michael Brown, which might have provided a crucial piece of evidence.

Or perhaps a camera may have helped de-escalate the situation.

In August, the NAACP Legal Defense Fund called on the Department of Justice to encourage the use of body cameras. “Transparency, accountability, oversight, and deterrence are critical elements in the effort to curtail police violence,” director Sherrilyn Ifill wrote in a letter to Attorney General Eric Holder. “Police officer body-worn video cameras that record interactions between the police and the public may serve all of these purposes.” If the people are looking for “transparency, accountability and oversight,” then what are the cops looking for? Why are so many police chiefs hopping on the camera bandwagon?

In a study released in September assisted by the Department of Justice, the Police Executive Research Forum (PERF), an independent organization that focuses on critical issues in policing, found that most police forces that use the cameras report positive results. Police chiefs and sheriffs told PERF that they increased professionalism and had a “civilizing effect” on both officers and civilians. The perception of a “civilizing effect” is largely anecdotal, but seems to be supported by a study done in Rialto, California, which experienced an 88% drop in the number of citizen complaints after police began wearing body cameras, as well as a significant drop in use-of-force incidents.

But Michael D. White, a criminologist who reviewed the Rialto study, notes that the drop in the number of citizen complaints might have come from a reduction of what he calls “frivolous complaints.” Several police chiefs echoed that point in the PERF study. “We’ve actually had citizens come into the department to file a complaint, but after we show them the video, they literally turn and walk back out,” said Topeka, Kansas Police Chief Ron Miller.

Many police executives say that the cameras can improve public trust and transparency. They believe cameras can help show whether racial profiling is occurring better than statistics can. The cameras can also help exonerate police accused of misconduct or demonstrate apparent wrongdoing—or provide evidence in criminal cases. A British study “reported that the technology increased officers’ ability to document that a violent crime had occurred, and the incidents recorded by body cameras were more likely to be resolved through guilty pleas rather than criminal trials.”

President Obama recently expressed support for the cameras in response to a WhiteHouse.gov petition that got more than 150,000 signatures. The Department of Justice civil-rights division supports their use to help document if police are complying with consent decrees. Police forces in New Orleans, Detroit, Las Vegas, and Spokane, Washington are beginning to have their officers wear body cameras to provide independent verification that they are complying.

So, what are the drawbacks?

“Police equipped with body cameras is an attempt by the state to appear accountable,” says Kris Hermes, a legal worker and National Lawyers Guild vice President, told me. “But as we’ve already seen with trying to obtain body-cam footage, such equipment is only useful if it’s turned on at the right time, and accessible to defense attorneys or those with civil lawsuits/complaints against the police.”

In Ferguson itself, the issue is controversial. The Canfield Watchmen—residents of the housing complex where Mike Brown was killed—are calling for “more cop-watchers, not cops with cameras.” They’ve organized to train and equip hundreds of local residents with their own body cameras and say there has been a significant reduction in police harassment in their community.

San Francisco civil-rights attorney Rachel Lederman, president of the city chapter of the National Lawyers Guild, points out that the much-cited Rialto study was funded by TASER, Inc., a leading manufacturer of body cameras. They have not been effective in reducing police misconduct in Oakland, she points out. (Lederman was an attorney for Scott Olsen, an Occupy Oakland activist who was seriously injured by police during a 2011 protest and recently won a $4.5 million settlement from the city.)

Videos are also not infallible. They can be manipulated by both police and civilians, as Orlando, Florida criminal-defense attorney John P. Guidry II blogged in September. One trick is to talk about things that can’t necessarily be seen, using catch phrases like “Stop resisting, stop resisting!” and “I saw the dope, where did you hide it?” In one case, an officer was yelling “stop trying to take my gun,” when, in fact, the man’s hands were in the air. Cops hid the video, but when it was found, they were fired and indicted for fraud.

“I have mixed feelings about it, to be honest,” defense attorney Bruce Block told the Detroit Free Press. “They are a double-edged sword. It can cut both ways.” Like many defense attorneys, he asserts that in court, a police officer’s word often counts for more than that of a defendant, so a video can help. It “shows the true facts of the case. What is said and what is not said. You’re not reliant on what a police officer recollects.” Body cameras, Block added, are the “next best thing to hearing the conversation.”

The National Association of Criminal Defense Lawyers and the National Lawyers Guild have not taken a position for or against the cameras. The American Civil Liberties Union has issued a qualified endorsement. In a white paper published in October 2013, senior policy analyst Jay Stanley wrote that the main conflict is “between their potential to invade privacy and their strong benefit in promoting police accountability.” Cameras “have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse,” he added”but only if they are deployed within a framework of strong policies to ensure they protect the public without becoming yet another system for routine surveillance of the public, and maintain public confidence in the integrity of those privacy protections. Without such a framework, their accountability benefits would not exceed their privacy risks.”

Many police departments have not yet developed that framework. The PERF survey found that of the 63 police agencies that reported using body-worn cameras, nearly one-third did not have a written policy governing their usage. Key issues include when cameras should be turned on, if police should be required to inform the public that they are filming—virtually all civil libertarians would say yes to that—who has access to the videos, and how long police will keep footage before it’s deleted.

“Purely from an accountability perspective,” Stanley writes, “the ideal policy for body-worn cameras would be for continuous recording throughout a police officer’s shift, eliminating any possibility that an officer could evade the recording of abuses committed on duty.” Although Stanley recognizes the privacy concerns this raises, and the stress placed on individuals under constant surveillance, he insists that the question cannot be left to an officer’s discretion. Instead, he suggests department-wide policies stipulating that cameras must be activated each time an officer interacts with the public. And if a camera is not activated, the consequences must be real.

Not all civil libertarians would agree. Many would prefer that police don’t film First Amendment assemblies, while others object to police filming inside private homes.

As a basic rule for storage, the ACLU suggests The use of recordings should be allowed only in internal and external investigations of misconduct, and where the police have reasonable suspicion that a recording contains evidence of a crime. Otherwise, there is no reason that stored footage should even be reviewed by a human being before its retention period ends and it is permanently deleted.

Yet another issue is that the videos recorded will be subject to state sunshine laws, raising serious privacy concerns. In the PERF study, Albuquerque deputy police chief William Roseman noted that in New Mexico, “everything is open to public record unless it is part of an ongoing investigation. So if police come into your house and it is captured on video, and if the video isn’t being used in an investigation, your neighbor can request the footage under the open records act, and we must give it to them.” That would argue for the quick deletion of all videos that are not needed for evidentiary purposes—and, in some cases, amending sunshine laws.

For a deeper look into recommendations for implementation, see the Police Executive Research Forum’s Implementing a Body-Worn Camera Program and ACLU’s Police Body-Mounted Cameras: With the Right Policies in Place, a Win for All