Cop videos: Public record or not?
Vexing questions linger about privacy, value of police footage
It took more than a year for Chicago police — under pressure from the media and the public — to release video footage of the shooting in 2014 that left Laquan McDonald dead, with 16 bullets in his body. When a judge finally insisted the video be released, it cast doubt on the police department’s version of events.
Witnesses and family mem- bers maintained that McDonald hadn’t lunged at police with a knife. The 17-year-old did have a knife and slashed a tire on the police cruiser. The video, which was from a police dashboard camera, showed him walking away before he was fatally shot. Officer Jason Van Dyke was charged with firstdegree murder.
The long delay in the video’s public release points to questions that have vexed many police departments, civil liberties advocates and elected officials: Under what circumstances should foot- age from police body and dashboard cameras be made public, and how much should be released?
The issue has become more pressing after 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 said, is to “build upon efforts to mend the fabric of trust, respect and common purpose that all communities need to thrive.”
The grant money came with little guidance about how localities should handle resulting re-
quests for the public release of hundreds of hours of video. 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 in more than half of the states and the District of Columbia have adopted body cameras, but many almost immediately restricted public access to the footage. The types of limits range widely, but some states — including Kansas, Missouri, North Carolina and South Carolina — make it nearly impossible to release footage. Florida has enacted restrictions that give wide leeway to law enforcement agencies to withhold footage from the public, saying videos shot in private settings or those in which the subject has a “reasonable expectation of privacy” can be exempted from public disclosure. Other states are trying to craft similar exemptions.
“This is an area that is difficult,” said Rachel Levinson-Waldman, senior counsel at the Brennan Center for Justice at the New York University School of Law, which tracks police body camera use. “It raises knotty questions about the tensions between privacy and the values of public disclosure.”
In Baltimore, which is in the process of outfitting about 1,400 officers with body cameras, officials hope the devices will help explain police actions more clearly, even as the city has been roiled by an incident that was only partially caught on camera.
A civilian with a cellphone shot video of police loading Freddie Gray, 25, into the back of a police van in April 2015. Gray died of injuries while in police custody, prompting a series of protests and failed prosecutions.
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.
BEHAVIOR ON CAMERA
Police body and dashboard cameras may provide additional proof of abuse, overcoming ambiguities common in police-civilian disputes. The videos also can be useful to police, who can use them to prove that accusations against them are untrue and, perhaps more significant, as investigative tools.
In theory, though largely undocumented, the threat that video footage could be made public can affect, and possibly improve, police and civilian behavior. A study conducted over 12 months in 2012 and 2013 by the Rialto, Calif., police chief found that when police and civilians know they are being filmed, everyone behaves more calmly, and use of force is less common.
In 2015, the Center for Evidence-Based Crime Policy at George Mason University in Virginia did a survey of the state of research on body cameras’ impact on behavior and public disclosure of footage. The findings suggest that much more information is needed to measure the ef- fectiveness of body-worn cameras and public disclosure.
The survey concluded, “The need for more research in this area is paramount, as the adoption of ( body-worn cameras) will likely have important implications for police-citizen interactions, police management and budgets, safety and security, citizen privacy, citizen reporting and cooperation with police, and practices in the courts.”
One thing is certain: The body camera clipped to an officer’s clothing has vastly improved the quality of police videos.
Though many departments have had dashboard cameras for several years, the body camera, usually pointed at the person with whom the officer interacts, provides clearer images, more close-ups and better audio.
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, Sen. Jeff Sessions, R-Ala., have staked out a distinctly propolice platform in which local control is 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.
During the campaign, Trump filled out a questionnaire from the Fraternal Order of Police. He was asked about body cameras and whether his administration would guarantee that footage would not be used to discredit officers’ privacy or reputations, particularly during contract negotiations with police unions.
Trump answered, “The federal law enforcement agencies that will be using Body-Worn Cameras will do so with the proper balance between good management and protection of privacy. Abuse of power is never tolerated, whether such actions are taken by individual officers in the performance of their duties or by supervisors following up on procedure and protocol.”
Though many jurisdictions have obtained Department of Justice grant money, the New York Police Department has been a slow adopter. In 2013, after a federal judge said the 35,800 officers’ use of stop and frisk was unconstitutional, the department was ordered to set up a body camera pilot program, but it has not done so.
As restrictions on disclosure coincide with the use of the body cameras, questions have arisen about what police will do with all the footage and whether retaining it solely for investigations meets the goals of the grants.
“Is it just another evidence tool for police and not a tool for police accountability?” said Sarah Lustbader a former public defender in Bronx, N.Y. “This is a contrast to what the public is expecting.”
Carlton Mayers, 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 gets stopped, as well as where and why they are stopped, and that data should be sorted by race and gender. That way, he said, the public can assess whether there is any illegal profiling.
“We have been pushing to condition data collection … on having it be publicly reported,” he said. “The data belong to the community.”
There is debate over whether the body-camera videos tell a complete story of what happened. What is recorded can vary greatly, depending on the camera angle, lighting and sound quality and whether an officer narrates the video as it is recorded.
In Baltimore, surveillance video from outside a liquor store near a fatal police shooting in April showed discrepancies between what police said happened and what witnesses reported to the news media.
One witness claimed the would-be robber, Robert Jerome Howard, ran into the liquor store for safety and was confronted by the off-duty police officer inside the store. Another witness told the media that the officer was “fussing ” with Howard.
Police officials said the officer’s shooting was justified after the video showed Howard had followed the officer into the store, contradicting the witness claims, before he tried to rob the officer. Police said the gun Howard was holding turned out to be a replica firearm.
POLICIES VARY
A recent study done for the Leadership Conference on Civil and Human Rights by Upturn, a Washington 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.
The report found that as of August, 43 of the 68 major city law enforcement departments used body cameras and had created written policies to guide their use.
Getting access to those policies — never mind viewing the footage — can be a challenge. The report said 24 agencies did not make their policies available on their websites, an omission that “hinders robust public debate about how body cameras should be used.”
The purpose of body cameras is to “build upon efforts to mend the fabric of trust.” Attorney General Loretta Lynch
“The data belong to the community.” Carlton Mayers, NAACP Legal Defense and Educational Fund