State Legislators Pushing Bills To Shield Police Officers From Their Own Body Camera Recordings
from the cameras-could-make-things-better-but-let's-just-keep-everything-the-same dept
Police accountability remains a major concern. Lawsuits alleging improper police conduct are filed seemingly nonstop. The Department of Justice continues to investigate police department after police department for a variety of civil rights violations. More and more police departments are equipping body cameras on their officers in hopes of trimming down the number of complaints and lawsuits filed against them.
Meanwhile, the public has taken police accountability into its own hands, thanks to the steady march of technology -- which has put a portable phone in almost every person's hands, and put a camera inside most of those phones.
So, we have two entities viewing accountability from seemingly opposite directions. Over the years, many officers have made it clear through their actions that being filmed isn't something they're comfortable with. This has resulted in additional misconduct and abuse of existing laws to shut down recordings. But what are these officers going to do when a city council -- or worse, a Memorandum of Understanding with the Justice Department -- directs them to start generating their own recordings?
One answer has already been presented by the Denver Police Department. They simply won't activate the cameras.
During a six-month trial run for body cameras in the Denver Police Department, only about one out of every four use-of-force incidents involving officers was recorded.This is a case-by-case "solution," self-applied as needed by certain officers. For other departments, it appears the imposition of recording devices will be greeted by legislation. Legislators cite "privacy concerns" but their bills do little more than hand law enforcement agencies full control over body camera recordings.
Cases where officers punched people, used pepper spray or Tasers, or struck people with batons were not recorded because officers failed to turn on cameras, technical malfunctions occurred or because the cameras were not distributed to enough people, according to a report released Tuesday by Denver's independent monitor Nick Mitchell.
Lawmakers in at least 15 states have introduced bills to exempt video recordings of police encounters with citizens from state public records laws, or to limit what can be made public.A small amount of redaction (face-blurring, etc.) would address the privacy concerns. After all, reality TV pioneer COPS has run for years with minimal privacy complaints and that's all it's ever used. As for the latter concern -- expenses related to open records requests -- there are ways to address this that won't cede complete control to law enforcement agencies. Seattle's Police Department worked with a local activist to find a solution that would provide footage, protect privacy and stay ahead of voluminous public records requests. Unfortunately, the result of these efforts has produced nothing more than extremely blurry footage in which everything is "redacted" by default.
Their stated motive: preserving the privacy of people being videotaped, and saving considerable time and money that would need to be spent on public information requests as the technology quickly becomes widely used.
Justifications offered by legislators try desperately to skew law enforcement's total control of body camera footage as some sort of win for the general public.
"Public safety trumps transparency," said Kansas state Sen. Greg Smith, a Republican. "It's not trying to hide something. It's making sure we're not releasing information that's going to get other people hurt."The problem is that if it's the public being abused in these videos, there are very few options available to obtain recordings of misconduct.
The Kansas Senate voted 40-0 last month to exempt the recordings from the state's open records act. Police would only have to release them to people who are the subject of the recordings and their representatives, and could charge them a viewing fee. Kansas police also would be able to release videos at their own discretion.The "fix" for possibly overbroad public records requests includes a) making acquiring a recording unaffordable, even for the person on the receiving end of alleged abuse and b) allowing the Kansas police to push out a steady stream of exculpatory video. The latter of the two is perfectly acceptable, but only if it's balanced by the public's ability to obtain less-than-flattering video of interactions with police officers. Nothing about this bill makes the public any "safer," no matter what Sen. Greg Smith says.
The potential for abuse of laws like these is so obvious even the cops can see it.
"I think it's a fair concern and a fair criticism that people might cherry pick and release only the ones that show them in a favorable light," said former Charlotte, North Carolina, police chief Darrel Stephens, executive director of the Major Cities Chiefs Association.Arizona's legislation goes even further than its Midwestern counterpart.
The bill declares that body camera recordings are not public records, and as such can be released only if the public interest "outweighs the interests of privacy or confidentiality or the best interests of the state."Not even the subject of the footage can demand a copy of the recording without somehow talking a judge into issuing an order for its release. Washington's proposed legislation similarly exempts all body camera video from public examination and routes footage requests through the courts. In both cases, bill sponsors claim publicly-released video could be used for "criminal purposes," but have yet to explain how a properly-redacted video would become a tool for "extortion" by "unscrupulous website owners."
The attendant
On the other hand, some states are at least moving to ensure the general public can continue their unpaid police accountability efforts.
The Colorado bill, which you can read here, states that if a cop seizes a camera from a citizen without permission or a warrant or deliberately interferes with a citizen’s right to record by intimidation or destruction of the camera, the citizen is entitled to $15,000 in civil fees in addition to attorney fees.This bill will help ensure at least one recording of an officer-involved incident remains intact, seeing as Denver police officers aren't all that into capturing their end of these interactions.
Another bill in Texas which has not gotten nearly as much publicity comes from democratic representative Eric Johnson, which seeks to protect citizens from bullying officers as well as criminalize cops who confiscate cameras, only to destroy footage.This pushes back against Texas Congressman Jason Villalba's recently-introduced bill, which hopes to add a 25-foot no-recording "halo" around police officers at all times -- stretching to 100 feet if the camera operator happens to be armed. Villalba has openly stated that "officer safety" is a greater concern than violated First Amendment rights, which would actually be criminalized if his bill passes.
California has also introduced a bill involving citizen recordings -- one that will make an incredibly obvious statement into law… presumably because that's the only way the state will get law enforcement to respect it.
In California, Senate Bill 411 would amend the state's penal code to say that simply filming or taking a photograph of an officer performing his duty in a public place does not automatically amount to interference."Filming isn't interference" would seem to be something that shouldn't need to be inserted as an amendment to criminal statutes. As would the following, which is perhaps even more infuriatingly obvious than the sentence above:
Supporters say it protects the First Amendment and clarifies that filming alone does not give police officers probable cause to search or confiscate an individual's property.Undoubtedly, there will be law enforcement pushback against the proposed legislation, which should be referenced in the future as the "We Shouldn't Even Need to Be Telling You This" Act, with "SMDH" as the short title.
Both sets of cameras will help increase law enforcement accountability, but one set is receiving the majority of proposed legislative protections. Shielding body camera recordings from the public eye limits their effectiveness as misconduct deterrents -- the very reason they've been instituted.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: police cameras, transparency
Reader Comments
Subscribe: RSS
View by: Time | Thread
Public Safety
Fine, but the body camera recordings are about enhancing public safety from abusive police so they provide both public safety and transparency. Mr. Smith isn't making an argument against the cameras at all.
[ link to this | view in chronology ]
Re: Public Safety
[ link to this | view in chronology ]
Re: Public Safety
For Sen. Greg Smith and too many others, that means that America's police get the sword (and armored vehicles, automatic weapons, stun grenades, etc.), and the public gets the blindfold.
[ link to this | view in chronology ]
Re: Re: Public Safety
The blindfold is meant to imply that Lady Justice dispenses justice without prejudice, the problem is a fundamental belief that prejudice is a visual issue. What one may hear or touch can additionally prejudice them, Lady Justice wears a blindfold to our own detriment!
Lady Justice has not only been prevented from having visual clarity when judging on matters of Justice she is also blind when dispensing that Justice. As the legal system continues its spiral, the more and more Lady Justice misses and instead strikes down the innocent!
Humans have a proclivity towards using symbols in our efforts, irony is the work of a higher power helping those with wisdom realize the insanity of it and just how much these symbols can be turned to negative perceptions under the correct light.
[ link to this | view in chronology ]
The definition of 'properly-redacted' would seem to be an issue. For example, footage of private yard and interior of a home - "Pay $300 or all the burglars in the neighborhood will be able to take a virtual tour of your house and figure out where your kids sleep and which ways to enter without being spotted", similar to those 'pay to remove your mug-shot' sites. Face-blurring is clearly not adequate in this type of circumstance.
[ link to this | view in chronology ]
Privacy
> would address the privacy concerns.
No, it wouldn't. People's voices would still be on the recording. That combined with the content of what is actually said, and with a readily identifiable location in the background (street intersection, landmark, etc.) all would be more than enough to identify the person in the recording.
Additionally, working informants is a key aspect of policing and way that a significant number of crimes are solved. If the cops can't turn off the cameras, no informant with half a brain will ever talk to a cop again knowing he's being recorded.
> After all, reality TV pioneer COPS has run for years
> with minimal privacy complaints and that's all it's
> ever used.
That's because COPS requires people sign waivers to appear on camera. Even the face-blurred people sign a waiver. You can choose to let them air the footage with the blur or without, but either way, you have to sign a release or they don't use the footage at all.
[ link to this | view in chronology ]
Re: Privacy
[ link to this | view in chronology ]
Re: Re: Privacy
[ link to this | view in chronology ]
Re: Re: Re: Privacy
If the image is taken in public, the only thing that is of concern is the appropriation of someone's image for commercial use. That's why they get a waver. This wouldn't be commercial use, so that's not a real issue.
Also, it's only in later seasons of Cops that they started editing out people who didn't sign the waver. For most of the show's run, if you didn't sign a waver, they just blurred out your face and called it good. They changed policies not because there was a legal requirement to, but because it helps the show to avoid having to deal with lawsuits.
[ link to this | view in chronology ]
Re: Privacy
We can send a man to the moon, but we cannot alter the audio in a video recording - this is truly amazing, who knew?
This is not about privacy, it is LEO wanting to maintain the status quo (not being held accountable).
[ link to this | view in chronology ]
Presumption of Violence
If, when there is a complaint about violence, there is a legal presumption that the camera was turned off to cover up malfeasance by the cop.
So, if a cop wants to talk to an informant, or anyone else off camera, fine. But if someone gets hurt, the officer is presumed to have had no reason to hurt someone, is acting outside their official capacity, and is personally liable.
Oh, and if it is a suspect, for the suspects words to be admissible in court, it has to be on camera. Otherwise, its presumed to be perjury.
[ link to this | view in chronology ]
Re: Presumption of Violence
In some cases when the video evidence directly contradicts what the police say happened the judge and jury believe the cop over their lying eyes of what actually happened.
If you want there to be a consequence it would need to be one that will be enforced not dismissed simply because police are to be believed at their word simply because they are police.
[ link to this | view in chronology ]
Re: Presumption of Violence
In court:
"Officer Cletus, were you issued with a body camera?","Yes", "Was it on", "No", "Why not?"
Consider the effects on Miranda alone, and there are many more procedural matters that would be drawn into question simply by the existence of the non-functioning camera.
[ link to this | view in chronology ]
Re: Presumption of Violence
> admissible in court, it has to be on camera. Otherwise, its
> presumed to be perjury.
That makes no damn sense. You're advocating charging someone with perjury because the cop didn't capture their statements on his camera when they made them?
So under your system, a cop rolls up on me and arrests me for drug possession. I say I didn't do it but the cop hasn't turned on his camera. When we get to court, I testify that I claimed I didn't do it at the scene but since my words weren't caught on the cop's camera, now I get charged with perjury also?
Every time I read the comments here at TechDirt, I'm continually grateful that these people aren't actually running anything of consequence in society.
[ link to this | view in chronology ]
There's merit to the notion.
Right now a police officer's court testimony beats and supersedes media footage. In most courts of law there is a presumption of guilt just because the officer says so.
So yeah, being on duty while your gear is out of order (such as your camera being conveniently off) should be an issue of misconduct on behalf of the police officer.
And if the officer fails to capture incriminating evidence on camera, his testimony of off-camera events should be inadmissible, or at least regarded as dubious, such as hearsay.
Already, a suspect's testimony is regarded as dubious, so there is no change there. If your claim as to what happened is contradicted by a police report, then the report prevails, despite that law enforcement agents are known to lie throughout the US as common practice.
We know cops are untrustworthy. That police testimony is regarded by the courts as valid serves to raise questions outside the US Justice System about the validity of its authority, and the intent of those who serve within it.
Any step towards real oversight could help to restore that trust, though, granted, there's a lot of indicators that those within the DoJ don't care, and are willing to rely only on the authority of might, good faith be damned.
[ link to this | view in chronology ]
Re: There's merit to the notion.
So he's not talking about charging the cop with perjury for off-camera statements. He's advocating charging the *defendant* with perjury for repeating anything in court that wasn't captured on camera at the time of the arrest.
[ link to this | view in chronology ]
Re: Re: There's merit to the notion.
[ link to this | view in chronology ]
Then I misintepreted.
[ link to this | view in chronology ]
Re: Re: There's merit to the notion.
The officer basically has to have video evidence if they're going to repeat what a suspect said, to make sure that what they state was said, matches up with what was said.
[ link to this | view in chronology ]
Re: Presumption of Violence
As it is now, the cops hide behind the department, the taxpayer pays for any financial recompense, and very few officers are punished or fired. THAT NEEDS TO CHANGE.
[ link to this | view in chronology ]
sounds weird
[ link to this | view in chronology ]
Re: sounds weird
> really mean is you just cannot do your job at all.
That's not true. As I mentioned above regarding the use of informants, the use of an always-on camera makes it impossible to do that (very important) part of the job at all.
[ link to this | view in chronology ]
Re: sounds weird
[ link to this | view in chronology ]
When citizens make baseless claims against cops the camera footage will be trotted out and put on display. But when the cops do something bad the video will be buried behind a new morass of legal privilege and protection.
[ link to this | view in chronology ]
Except here transparency is required to help ensure public safety. It helps assure the public is safe from abusive cops.
[ link to this | view in chronology ]
Is everyone in the US insane?
"I'm not leaving the scene officer, just going to the distance legally required to record it."
Bang!
[ link to this | view in chronology ]
Re: Is everyone in the US insane?
Also has killed any desire for ever wanting to go across the border and visit that hellhole of a country
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Seems what's sauce for the goose is NOT sauce for the gander...
[ link to this | view in chronology ]
Re:
It has nothing to do with hiding their own actions and avoiding potentially being held accountable for them, and really, you should be ashamed for even thinking such of the paragons of virtue that are police.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
If police officers hide behind laws so they basically have immunity against lawsuits...why the fuck are cameras even used?
You'd think that the police departments and governments would willingly WANT to use body cams to stop the financial bleeding.
But no, they'd rather hide behind laws which say "our officers can literally kill you, and you can't do jack shit"
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Please look for the forest
If we want justice, we want truth, period. If there is truth there is truth concerning human existence: morality: nothing more or less than truth. We guess at morality at best. At worst -- at absolute worst -- the Church makes it up for us. Second worst behind the insane Church is the State. It is impossible to invent morality, just as it is impossible to invent truth.
I've watched the media manipulate race relations my entire life. Guess what? Let me throw a little mind-wrench into the works: Charlie Manson. Most people don't realize Manson had some very interesting connections, especially in the period before he learned to play guitar and started jamming with the likes of Dennis Wilson of the Beach Boys and Neil Young, who made at least one attempt to get him, Manson, signed to a major record label. I bring this guy up for one reason: he "foresaw" a coming race war in the United States. In fact the time he spent in Laurel Canyon, near LA, also involved living in a paramilitary/survivalist installation in a nearby canyon -- whose water tanks, canyon-height stairways, and other bits of infrastructure are still standing, and in which military-type drills were carried out. Why all the woo? I think Manson was right, and I don't think he was reaching conclusions on his own. Most people don't realize how much intelligence had to do with the hippie scene, or that luminaries such as Abbie Hoffman felt the hippies were created by the DoD to discredit the anti-war movement. source: Dave McGowan, Weird Scenes Inside the Canyon: Laurel Canyon, Covert Ops, and the Dark Heart of the Hippie Dream (buy it and/or read it online):
http://www.davesweb.cnchost.com/index.html
Our culture is played and the media does a lot of the heavy lifting in that work. Lies have stoked racial tensions right to the snapping point. Police are psychopathic on average when compared to the normal human -- it's a known thing. The problem with what's happening today is nothing is constructive at all. And, instead of highlighting, for example, a white man that refuses to present ID at a "papers, please" checkpoint and gets his head smashed into the broken glass by psychopathic -- federal -- idiots, the papers make up fake racial narratives to highlight the minority police shootings (double entendre if you missed it: famous NY Police Dept. study recently showed cops are far more willing to shoot a white man than a black one).
Where's this leading? I don't know. I don't like it and I don't know. I just know I don't like it. 3-2-1 panic, baby, I got no good advice.
[ link to this | view in chronology ]