Are police videos public property?
When it comes to access, policies vary across the nation
It took more than a year for Chicago police — under pressure from the media and the public — to release video footage of the 2014 shooting that killed Laquan McDonald, 16 bullets in his body. When a judge finally insisted the video be released, it cast major doubt on the Police Department’s version of events.
As witnesses and family members had maintained all along, the video showed that McDonald hadn’t lunged at police with a knife. He did have a knife and had slashed a tire on the police cruiser, but then began walking away. In the video, which was from a police dashboard camera, it looked as though the 17-year-old had been shot without provocation. Officer Jason Van Dyke has been charged with first-degree murder.
The long delay in the video’s public release points to a broader question that has vexed many police departments, civil liberties advocates and
elected officials: Under what circumstances should footage from police body and dashboard cameras be made public, and how much?
The question has become more pressing with the Obama administration’s award of more than $41 million in the past two years to help law enforcement agencies buy body cameras for officers. The purpose, outgoing Attorney General Loretta Lynch has said, is to “build upon efforts to mend the fabric of trust, respect and common purpose that all communities need to thrive.”
But the grant money came with little guidance about how localities should handle the resulting requests for the public release of hundreds of hours of video footage. Are these ordinary public records that would be disclosed under most state public records laws? How do agencies protect private information — such as bystanders’ identities — that in documents might be blacked out?
More than 60 jurisdictions — including Milwaukee, Janesville and others in Wisconsin — in over half the states and the District of Columbia have adopted body cameras. But policies vary widely on public access to the footage, as well as how police officers can use it.
Milwaukee’s policy, for example, says public requests will be handled in accordance with public records laws. It calls for an officer involved in a critical incident to refrain from viewing any video until investigators arrive on the scene. But it does not explicitly prohibit an officer involved in a critical incident from viewing the footage before giving a statement to investigators.
“This is an area (of law) that is difficult,” said Rachel Levinson-Waldman, senior counsel at the Brennan Center for Justice at the New York University School of Law, which is tracking police body camera use. “It raises knotty questions about the tensions between privacy and the values of public disclosure.”
The pressure to place body cameras on law enforcement officers grew in part from the proliferation of civilian videos from smartphones documenting police conduct up close and in real time.
Civil liberties advocates say police abuse exposed by such videos is not new, but it had been almost impossible to document before everyone had the technology in their pockets. The videos also can be useful to police, who can use them to prove that accusations against them are untrue, and, perhaps more significantly, as investigative tools.
And in theory, though still largely undocumented, the threat that video footage could be made public can affect, and possibly improve, both police and civilian behavior.
One thing is certain: The body camera clipped to an officer’s clothing has vastly improved the quality and clarity of police videos. While many departments have had dashboard cameras for several years, the body camera, usually pointed at the person with whom the officer is interacting, provides clearer images, more close-ups and better audio.
A recent study done for the Leadership Conference on Civil and Human Rights by Upturn, a Washington, D.C., consulting firm, found a wide range of policies about when and for how long cameras should be turned on; whether officers can review footage before writing their reports, which could skew the results and limit the value of the footage as an accountability tool (most are allowed to see the video before a report is filed); whether they can use facial recognition technology in videos for other investigations (many can); and whether department policies about the use of body cameras are easily accessible by the public.
Yet it’s unclear whether the Obama administration’s professed goal of using these cameras to provide greater transparency and police accountability will be realized. The incoming administration of President-elect Donald Trump and his attorney general nominee, U.S. Sen. Jeff Sessions (R-Ala.), have staked out a pro-police platform with local control preferred over federal involvement, leaving it likely that decisions about publicly releasing body camera footage will be made by state legislatures, city councils, county officials, police chiefs and sheriffs.
Carlton T. Mayers II, policy counsel for the NAACP Legal Defense and Educational Fund, said the public should be able to get data that police can cull from the videos about who is getting stopped by police, as well as where and why they are being stopped, and have that data sorted by race and gender. That way, he said, the public can assess whether there is any illegal profiling.
Steve Tuttle, a spokesman for Taser, which has supplied more than 3,500 law enforcement agencies with its Axon body cameras, said the technology has advanced enough to diminish the tension between those who are pushing more public release of videos and those who say it’s too onerous.
“We make it very simple,” Tuttle said. Images in a one-minute video now can be redacted “in seconds,” he said.
But along with more cameras comes more video, which is creating a “tsunami of digital information,” he said. When someone requests a video of an officer’s entire shift, that creates an extreme burden on an agency.
Often, the decision to disclose a video of a highprofile incident has come after intense public pressure.
In Milwaukee, where two days of rioting broke out in August after police fatally shot Sylville K. Smith, 23, it appears that body camera footage has helped lead to charges against Dominique Heaggan-Brown, a city police officer. But the video itself hasn’t been released, despite the mayor’s support for making it public.
“If this case had occurred 10 years ago, or 15 years ago, we would not have that evidence,” Mayor Tom Barrett told reporters.
Police Chief Edward A. Flynn said he believes most people — law enforcement officers and civilians — “see (police body camera footage) as a useful accountability tool.” And it has value for police, he said.
One way or another, he said, “the police will be the most documented workers in the world when this is all over.”
But whether the public will gain substantial access to that documentation, for now, remains murky.
“We are either invading people’s privacy without any cause at all, or refusing to hold (ourselves) accountable and sharing that with the general public,” Flynn said. “Whatever move you make in either direction, someone is going to be furious with you.”