The shooting death of Michael Brown last August in Ferguson, Mo., ignited a public debate about police video cameras. The incident was not videotaped. Two competing narratives emerged. In one, Brown, an 18-year-old unarmed black man, was approaching officer Darren Wilson with his hands up, only to be shot six times. In another, ultimately supported by a Department of Justice investigation, Wilson shot Brown after Brown reached through the window of the officer’s cruiser, struggled for Wilson’s gun, retreated, and then appeared to lunge at him again. A grand jury investigation that brought no charges against Wilson did little to soothe the community uproar.
By contrast, former University of Cincinnati police officer Ray Tensing’s fatal shooting of Samuel Dubose was captured by a body-worn video camera. Tensing pulled over Dubose for a routine traffic stop. Tensing told officers at the scene that he fired one fatal shot because “he was being dragged by the vehicle and had to fire his weapon,” But the Hamilton County prosecutor said the dragging story was a lie. When he announced Tensing’s indictment for murder, he played Tensing’s body camera video. “Every day now, I’m going to be marching for video cams,” Dubose’s sister said when the charges were announced.
The Cincinnati case shows the promise of body-worn cameras (BWC’s). They have the potential to build community confidence and police accountability. Yet BWCs also raise difficult questions. When should police record an encounter? Must they tell the people involved? If the video is not used as evidence, how long should the police hold on to it? What are the privacy protections for civilians caught on camera? How much access should the public have to the video? And what are the implications of outfitting thousands of police officers with a surveillance device? The conversation has been hindered by a lack of publicly available information about how BWC programs actually operate.
The Brennan Center for Justice recently completed a comprehensive review of BWC policies from twenty-four police departments around the country. We created an interactive map and series of charts that allow detailed comparison of policies, to help police departments, city councils, analysts, activists, and academics. When it comes to whether BWC policies are more likely to promote accountability or to intrude on privacy, these documents show that the devil is in the details. We review here some highlights and common themes, and encourage you to dip — or delve — into the accompanying materials to learn more.
To begin with, when do the cameras record? Almost all departments require law enforcement actions, such as arrests or searches, to be recorded, while two — Charlotte and Ferguson — require all citizen interactions to be recorded. The majority permit recording at any other time at the officer’s discretion, with some exceptions. Only five policies require officers to notify subjects that they are being recorded; six more encourage it.
When are officers prohibited from recording? In the absence of confrontation, most departments forbid recording in places such as bathrooms and locker rooms, and some limit recording in places such as hospitals and doctor’s offices. While private homes traditionally receive the strongest constitutional protection against police intrusion, only four policies require a resident’s permission to record in a home during a “consent search” (a search that takes place pursuant to the owner’s consent, versus a warrant). One city, Charlotte, requires officers to cease a consent search altogether if the resident does not consent to recording. Fourteen do not address homes at all, and four explicitly say the resident’s consent to record is not required. No city forbids recording in homes altogether. When it comes to victims of domestic violence, policies vary. Several allow the officer to exercise discretion not to record “sensitive” victims, whereas one — San Diego — specifically instructs officers to record domestic violence victims with serious injuries, to account for the possibility that these victims may not agree to testify later.
Even recording people in public raises concerns if it chills the exercise of their First Amendment rights. Six of the twenty-four departments have limits on recording First Amendment activity, such as protests, or using the recordings to identify law-abiding participants. The New York Police Department’s latitude to record is limited by court-ordered guidelines because of a history of monitoring political activity and keeping files on activists. Other departments may wish to consider implementing similar rules as a preventive measure. Dallas and D.C. require police to record all First Amendment assemblies they attend in their official capacity, although D.C. prohibits use of the footage to identify law-abiding participants.
Of course, when to record is only half the picture — we must also look at what happens to the recorded video, both within and outside of the department.
First, can officers watch their BWC videos before making reports or statements? Public debate continues, with some expressing concern that police involved in misconduct will be able to tailor their stories to match the evidence, and others suggesting that prohibiting officers from watching their own videos will breed mistrust and discourage officer cooperation. Whatever the merits of each side, the policies show a strong trend. Fifteen departments guarantee officers the right to view their videos before writing reports or giving a statement to internal or criminal investigators, including after a use-of-force incident or a civilian death. Five allow viewing for reports, but require an officer to give a statement after a serious incident before seeing the video, or make viewing contingent on permission from an investigator or prosecutor. We also found that many departments sharply limit the ability of supervisors to view BWC video — some can only view if there is a complaint or if the officer flags a video — and to discipline officers based on it. To be sure, no one wants their boss peering over their shoulder as they work; at the same time, these policies highlight a potential tension between arguments that cameras will enhance police accountability and the actual guidelines in place.
Many have argued that release of BWC videos will help increase police accountability to the public. However, these recordings show sensitive moments in people’s lives, and releasing them publicly can pose major privacy concerns. This makes it essential to examine the process for public release.
In theory, the process for releasing videos outside the department is determined by state or local law. At least four states we reviewed (which include six of the cities we survey), plus D.C., have statutes that explicitly address the release of videos from body-worn cameras. Elsewhere, management of the videos is governed both by laws limiting release of evidence in an active criminal case and laws making government records accessible to the public. Where neither the law nor the department’s policy specifically addresses videos, it may be unclear how these general laws apply.
Moreover, in practice, police departments have a lot of discretion. Videos have been released when they make the police look good; when they don’t, they may still be released if there is intense public demand. Many departments have managed to avoid release despite media and activist pressure. Conversely, some cities have innovated to increase transparency; Seattle, for instance, releases videos online that have been blurred so individuals are not recognizable.
How long can the footage be kept? The ACLU recommends that unless video is marked for retention for evidence or at the request of a subject it should be deleted after six months to minimize the risks to privacy, whether from hacking or from misuse or abuse by the department itself. On the flip side, some departments are opting to keep recorded video for multiple years, in case a citizen complaint or civil rights charge is filed. Eight departments keep videos that are not evidence and not likely to be subject to a complaint for 180 days or less. Seven keep them for one or two years. Ten of the departments do not say.
The above factors are only some of the considerations that enter into the public debate over body-worn cameras. Interested in the rules that govern facial recognition technologies, privacy protections for victims of sexual assault, procedures for auditing the videos, or others? Check out our map and five charts with twenty total categories to find the departments and trends that matter to you.
(Photo: Flickr/Utility)
Blog post edited February 23, 2016.