Recent evasions of justice by the NYPD officers who killed Eric Garner prove what Americans of color have long known: Police can do anything – even murder someone in broad daylight on videotape, without provocation, using methods of force already held illegal – and get away with it.
Americans from all walks of life have responded with a rising tide of protests around the country, ranging from sit-ins at shopping malls and walkouts on college campuses, to the occupation of train stations, major intersections and highways. This movement for justice has largely untapped opportunities among potential allies, and also faces a disturbing threat in proposals to expand the use of police body cameras.
A Movement to Which Washington Is Responding
The movement’s visibility and assertiveness have already compelled a response from Washington. Policy proposals responding to the movement, however, threaten to distract from its most crucial goals, undermine its interests, and ultimately exacerbate mass incarceration. After greeting grassroots organizers from Ferguson at the White House, and affirming his concerns about the “militarized culture” of domestic police forces, President Obama proposed to spend a quarter billion dollars on solutions including police body cameras. Body cameras, however, are no solution to the problem. The real problem – which the president and Congress continue to ignore – is a legal system granting police broad latitude to commit civil rights violations. Between Congress amending it and courts interpreting it, the law must change so that police face justice for arbitrary violence, whether their human rights abuses happen on or off camera.
Cameras Promise Transparency but Don’t Deliver
The parents of Mike Brown endorsed a call for body cameras because the facts surrounding their son’s death have been in dispute since the day he was killed. Transparency is not sufficient without reform, nor is it ensured by cameras. First, there’s no guarantee that the public will ever see footage from police body cameras, especially in cases where it may be helpful to defendants or civil litigants. When police have been observed filming demonstrations, for instance, civil litigants have been unable to gain access to footage in discovery due to self-serving police claims (not unlike the CIA’s claims when evading accountability for human rights abuses like torture) that the footage was either lost, recorded over, or never captured in the first instance. Second, even when body camera footage is public, it remains an inadequate solution at best. Cameras captured video of Eric Garner’s death, which millions of people watched on YouTube. But video neither saved Eric Garner nor helped hold his murderers accountable. Moreover, even when everything does work as their proponents suggest, body cameras offer transparency only into particular incidents, not into patterns or practices. A few weeks ago, when I testified before the Washington, DC, City Council on policing reforms, members were eager to define what few statistics they could glean from the Metropolitan Police Department. In New York City, the council fought for a year merely to gain some insight into the racial impacts of NYPD stops, searches, surveillance and uses of force, through the creation of a new inspector general’s office. We need transparency into patterns and practices, not only into discrete acts.
Cameras Could Make Mass Incarceration Even Worse
Beyond failing to satisfy transparency concerns, police body cameras also pose a massive risk to privacy and could support mass incarceration. In these ways, cameras are not merely a distraction from the police accountability movement’s underlying aims, but could actively set it back. First, body cameras are oriented not toward police officers, but rather toward the public. Nor are they particularly focused. Rather than specifically capture footage of people involved in police encounters, body cameras monitor anyone within their field of vision, without the individual basis for suspicion constitutionally required to justify a police search. The president’s body camera proposal would ultimately expand government surveillance of people suspected of no crime, without doing much to check or balance police abuses. By extending surveillance, cameras could also fuel mass incarceration. Cameras could capture footage used against defendants in criminal trials – either where the footage depicts criminal acts, like jaywalking or selling loose cigarettes, or where it merely supports suspicion of potential crime, justifying subsequent stops and searches that would otherwise be illegal. It would be disturbing indeed for calls that “Black Lives Matter” to be answered with tools ensuring that they will continue to be treated as fodder for a corrupt system promoting racial injustice.
In Ferguson, community members have compiled a sensible set of comprehensive demands, ranging from the adoption of federal legislation to end racial profiling, to local measures ensuring accountability for rogue police officers, protections to give journalists and community members the right to observe police activities, and limits on military equipment acquisition. The End Racial Profiling Act (ERPA) – included among the community’s demands in Ferguson – would address the problem by requiring police departments to track and disclose the impacts of police activities. It would establish the transparency that body cameras promise, but fail to deliver. ERPA would not only enable transparency into patterns and practices, it would go further by creating a right of private action so survivors of profiling could seek their day in court. Under a disparate impact standard, plaintiffs could use the statistical evidence required from police to establish a discrimination claim, without having to somehow prove an officer’s specific intent to discriminate, as required under current federal law.
Washington Failing America, Yet Again
This is an issue on which both major political parties have failed America. ERPA was endorsed by the Bush administration as early as 2001, years before President Obama came to Washington. Yet, more than a decade later, the bill remains under the congressional bus, ignored by Republicans and Democrats alike. During the two years that Democrats most recently controlled the Senate, the bill did not receive a single hearing – even though profiling sparked a raging national controversy. If the president can mobilize a quarter billion dollars to fund potential solutions to police violence in communities, those funds should go where they can most help. Instead of further inflating the budgets of police departments, the president should invest in communities seeking job training, violence prevention, and youth counseling programs. Even if the goal remains unfortunately limited to establishing greater visibility into discrete police activities, and cameras are incorrectly perceived as the solution, the best way to get them on the streets is to train community members and aspiring citizen journalists. Cameras fail to provide meaningful transparency, extend domestic spying, make mass incarceration even worse and represent a budgetary bonus to police departments and corporate camera contractors, while distracting the debate from the more important issue of officer – and department – accountability for abusive patterns and practices. If the president wants to do more than pay lip service to the movement, he should endorse ERPA and push Congress to finally enact it. In the meantime, seemingly spontaneous mass demonstrations will continue across the country. The movement to end police murder with impunity is not asking for new solutions. It has already put solutions on the table. It’s time to give Garner, Brown and all the other victims of police violence the justice they were denied during their lives and help them rest in peace by taking meaningful steps to ensure that police do not force others into their unfortunate footsteps.