States push to transform police worn cameras from accountability guarantee to another surveillance tool

Over the past few years, the use of cameras worn by police officers is growing fast. Police reform activists rallied around body cameras as a tool for increasing police accountability in the wake of a series of highly contentious shooting deaths of unarmed individuals - some of whom were prepubescent children - by police officers that were videotaped by third parties. In several of these cases the testimony of the shooter was dramatically and diametrically opposed to the video evidence; in some of these cases police departments released statements in support of their officer statement, only to have third party video be publicly released that exposed such statements to be fabrications. The resulting outrage has caused protests in cities across the United States, and a series of high-profile prosecutions that would have been unlikely without video evidence. Forcing cops to wear cameras began to strike activists as a sure-fire way to garner public support to force reluctant prosecutors to bring charges.

The cameras received a wide variety of support from politicians. Cameras appeared to present pol's with an easy fix to an intractable and complex problem. Suddenly politicians no longer needed to worry about going to bat against well-funded and connected police unions in order to fire violent officers or find a way to constitutionally resolve fundamental conflicts of interest in the judiciary in order to placate a growing number of angry voters concerned that the next kid shot dead might be their own.

All that was needed was money for cameras and the problem would solve itself.

And money seemed right around the corner. Toward the end of 2014, President Obama requested over $200 million from Congress to purchase body cameras for state and local police departments throughout the country. While Obama's camera funding would eventually make its way through Congress, House Republicans - typically staunch advocates of defense and law & order funding - ensured the appropriation was reduced by nearly $200 million before it passed. By the time the Department of Justice began it's Comprehensive Body-Worn Camera Program using the new Federal money to provide matching grants for State dollars, only $22.5 million per year was placed in the program's piggy bank. Meanwhile, police body camera costs for the single city of Detroit cost over $5 million for initial purchase or the cameras, and the Wayne County Michigan Prosecutor's Office expects operational costs for body cameras to rise to over $4 million annually. Even if Detroit's program costs are considered to be overblown considering the city's decades-long history of corruption, misappropriation, fiscal mismanagement and overall cronyism, the Federal appropriation just isn't anywhere near enough to outfit a country of over 800,000 sworn police officers.

Despite the lack of adequate Federal funding, cameras are still finding their ways onto the uniforms of police officers using State and municipal coffers. The unions of police officers play a much larger role in regional politics than Federal politics in a country where federal police account for only a small minority of overall law enforcement and the bulk of law enforcement-related laws and money remain local. Public safety costs remain the majority of municipal budgets throughout the country, with police and fire workers maintaining the best retirement and pension benefits received by those outside the the C suite of major corporations. In 2012 the average pay of a police officer - including part time workers and excluding medical and retirement benefits - was $94,652. A California officer making that average salary could retire at age 50 and expect to be paid just shy of $90,000 a year for the rest of his or her life.

The point is not to shame police for making out sized profits. Unfunded pension liabilities to public safety workers are the leading cause of municipal bankruptcy, and following the real estate market collapse these unfunded liabilities came to roost in towns across the country. Over the last 10 years police unions have fought fiercely in the courts and the ballot box to prevent cities in or heading for bankruptcy from restructuring their pension plans. The point is that police have become incredibly influential in the state and particularly municipal appropriations process - particularly in the wake of court rulings siding with police unions and heavy spending from police union PACs in local elections.

Perhaps, then, we should not be surprised that locally-funded police camera programs are increasingly coming with some very serious and very alarming strings attached - strings that at least in some states may transform police body cameras from guarantees of accountability for out-of-control police officers into just another in a growing list of invasive surveillance measures used by police to monitor the public.

A growing list of states are exempting police body cameras from public records laws. The details vary from state to state; some states, have declared that police camera footage is not a public document and such footage is only eligible for public records requests under certain special exemptions. North Carolina was among the most recent of states to join this group when House Bill 972 was passed into law.

The last two years have seen a flurry of laws focused on the handling of video footage produced by body or dash cameras.

In May Minnesota passed a law that establishes police video footage as public records, but does so in name only. Body camera footage in Minnesota will now be available to the public "only if an officer in it causes someone substantial bodily harm". Case law has yet to establish what qualifies as "substantial" and whether killings of pets will be included (we doubt it). Arguing in support of the bill, Rep. Brian Johnson (Cambridge-R) made it clear that the goal was reducing officer liability:

“The problem is we’ve gotten into a world of lawsuits. We’ve had some great officers that’ve had their careers destroyed because of false accusations, and departments just get rid of the lawsuit, because it’s cheaper than fighting it.”

While it's clear that restricting the ability of the public to obtain video evidence will make it more difficult for members of the public to substantiate claims of official malfeasance, Johnson failed to clarify exactly how the suppression of objective video evidence would reduce the incidence of false accusations. Why would a false accuser want video evidence introduced that would presumably discredit a claim of excessive force made in bad faith?

Among the sponsors of the Minnesota bill was State Rep. Tony Cornish, a NC Republican who worked as a law enforcement officer for 27 years prior to his election. Cornish is so proud of his Law & Order credentials that he posed for his staff photo at the Minnesota House of Representatives photographer's office with a lapel pin shaped like a pair of handcuffs.

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Despite our focus on Republicans up to this point, police camera reform has been a sterling example of bipartisan cooperation. The bill's Senate sponsor was Ron Latz (St. Louis Park-D), who was less transparent about creating the bill as gift for police. Latz told reporters that his interest in the bill is to ensure that the public's access to police video does not conflict with the right to privacy of those included in police videos:

“Community organizations look at the big picture, but that may conflict with the agenda of an individual who is on a recording. I’d rather leave it in the hands of the individual.”

The two pronged approach illustrated in Minnesota has been a template for success of police video restriction bills across the country (Kansas went so far as to combine their Senate Bill 22 preventing public access to police videos with a measure banning the use of drones by police). Conservatives with sympathies for police and long skeptical of controversial protest movements like Black Lives Matter are sold on restrictions with a reassuring tale: accusations of brutality made against police are lies designed to extract legal fees from honest, committed officers who put their life on the line to safeguard their community. Liberals are asked to focus on the supposed privacy dangers posed by police cameras to those forced to interact with the police. Media outlets favored by those on the left wing of the spectrum radically shifted their coverage of police body cameras in early 2015. In March of 2015 MSNBC reported that police were "embracing" body cameras. Five months later the same news outlet was warning that body cameras worn by police represented a "dystopian danger". NPR has told their listeners that police body cameras "aren't a panacea", present "drawbacks" and "unexpected issues". Two of these stories use police for all or nearly all of their sources; incidentally these are the two stories that focus on privacy as the problem with cameras.

By removing public access to police videos, or making it more difficult or costly for the public to access police videos, using such videos to hold the police more accountable becomes infinitely more difficult. The Puppycide Database Project relies on such videos for an objective record of emotionally-charged, fast paced violent incidents. At times PuppycideDB's original research of such video evidence has demonstrated that police acted illegally and knowingly mislead the public about it. Under the State of Washington's new law, in order for the Puppycide Database Project (or anyone else) to obtain a police video that contains a dead body, it is now necessary to prove that the video "is of legitimate public concern". During the course of our research Puppycide Database Project has compiled records of thousands of killings of animals by police officers. Only a small number of police killings of pets and animals are covered by the media at all. Highly controversial and well-publicized incidents involving shootings of people will almost certainly be released to the public. How cooperative will courts or police departments be to the claim that killings of dogs are "of legitimate public concern"? And who will be there to fight when they decide its not?

Back in March of 2015 the Puppycide Database Project published a post on this blog detailing evidence that the Denver Police Department officers failed to record 74% of incidents implicating them in excessive force. In the post we expressed concerns about how body cameras were to be implemented in practice. Denver's body cameras provided officers with the ability to turn cameras off and on at will. Is it any surprise that Denver officers failed to turn their cameras on during the vast majority of times that they would later be accused of excessive force? Even a marginal consideration of body-camera policy would make it obvious that allowing officers to turn cameras off at will neuters the cameras of any force as accountability measures.

Transforming police video footage from an accountability tool to a surveillance tool is not the only consequence of the new state legislation. Video taping could very well stop altogether. Within months of Indiana's House Enrolled Act 1019 being signed into law by Governor Mike Pence, two Indiana police departments announced they would be ending their police camera programs. Indiana's new law forces police departments to meet expensive data retention and facial obfuscation requirements (requirements that - as we already explained - are unfunded federally and must be financed by an appropriations process dominated by law enforcement interests). Like a countless variety of vital law-enforcement information, there is no national count of body camera programs among law enforcement agencies. How many body camera programs stop completely as a result of new regulation will continue to remain unknown.

Body cameras do present a real threat to civil rights of those who appear in them. There is a threat is that objective records of actual excessive force incidents and murders by police will be hidden, robbing victims of their due process rights. And there is a threat that keeping these videos from journalists and researchers will prevent objective information about policing from reaching the public, forcing reforms to rely on emotional pleas and jingoism instead of clear-headed neutral analysis. Whether body-worn police cameras and the footage they generate becomes a surveillance tool hinges on how they are implemented and managed. While the public has a privacy interest in ensuring embarrassing video footage with no public interest is not plastered for the world to see, there is a greater privacy interest in ensuring that such video footage is not used in furtherance of a criminal conviction. This new wave of privacy laws eliminates a great deal of the potential for police cameras to be used for accountability purposes by failing to ensure video is managed by a non-police agency and making it more difficult for news agencies to report on police violence and victims of police violence to access potential evidence. The fact that these laws leave the implementation and often the enforcement of privacy rules in the hands of police themselves, combined with the fact it is police and not privacy activists lobbying for these laws, speaks volumes.

Camera Footage ineligible for Public Records requests unless exception is met Florida, Georgia, Illinois, New Hampshire, North Carolina, South Carolina, Oregon, Kansas, Louisiana
Camera Footage are Public Records but police can withhold / redact / obscure Connecticut, Nevada, North Dakota, Oklahoma, Texas, Minnesota, Indiana, Washington, Nebraska, Utah
No state body camera law Maine, Rhode Island, New York, Ohio, Michigan, West Virginia, Virginia, Tennessee, Alabama, Mississippi, Arkansa, Wisconsin, Iowa, South Dakota, Wyoming, Idaho, Alaska, Hawaii, New Mexico
State body camera law does not address open records Vermont, Massachusetts, New Jersey, Delaware, Pennsylvania, Maryvand, Kentucky, Montana, Colorado, Arizona, California, Missouri