21ST CENTURY POLICING: ENSURING THAT TRANSPARENCY DOES NOT UNDERMINE PUBLIC SAFETY

Through my efforts representing law enforcement, I know that police body cameras are at the forefront of many officers’ minds. With the recent release of high profile video footage from Chicago and elsewhere, the public is now certainly engaged.

While not all in law enforcement have embraced body cameras, let me outline the case for them. Cameras are already everywhere. We are recorded entering parking lots, businesses, apartment buildings and even walking down the street. The American Civil Liberties Union has apparently suddenly started to embrace surveillance with the creation of its absurd “mobile justice app,” which automatically sends user video recordings of police contacts to the ACLU. However, our laws require that police conduct be evaluated from the officer’s perspective – not from the perspective of a selfie stick above the scene. It is now a foregone conclusion that many police encounters are going to be recorded in some fashion. With that being the case, I suggest that the recordings originate from the perspective of the officer.

Police body cameras have also eviscerated many false claims of misconduct. The most documented incident occurred in Albuquerque after a young woman was arrested for a DUI. During booking, the arrestee alleged that she was sexually assaulted by the officer that arrested her. Instead of the officer being fearful that this sort of allegation may end his career, the officer had a brief moment of laughter. We know the officer laughed because it was recorded on his body camera, which also recorded an entirely lawful stop, search and arrest, disproving the allegations. This scenario has repeated dozens of times.

From the perspective of police accountability, one need not look further than the recent indictment of University of Cincinnati police officer Ray Tensing. Tensing likely would not have faced criminal charges in the absence of the body camera footage. While empirical research is just beginning in this area, there are initial findings suggesting a connection between the use of body cameras and potentially significant decreases in the use of force and citizen complaints.

Still, the reason why all sides have not joined the body camera craze is because the use of body cameras is fraught with potential drawbacks for both the police and the public. One concern relates to retaining video footage. Consider the DUI arrest in New Mexico: what if the sexual assault complaint was not lodged until 90 days or even 3 years after the incident? Would the local government have incurred the significant cost of retaining the video record of a routine stop and DUI arrest for that long? In some states, there is a 6 year statute of limitations for civil rights lawsuits - we owe it to our officers to preserve this evidence to protect them from baseless claims.

Law enforcement is also correct to be concerned with the intricate balance between the public’s right to see the work of its police and the fact that sometimes the public is best protected by police work done without a camera rolling. For example, some victims of sensitive crimes would understandably be reluctant to report and describe their incidents if they knew that they were being recorded for all of cyberspace to eventually see. Should officers conducting victim interviews be permitted to turn their camera off to protect the victim? How should an officer approach a situation where a reluctant witness wants to help, but is only willing to help if anonymity is guaranteed by going off-camera? Should officers record when conducting an interview in a hospital room or in someone’s home during an intimate domestic disturbance? Transparency must not be allowed to undermine public safety.

Surely mindful that body cameras will not be the panacea for all police-public disputes, many law enforcement departments have already implemented body camera programs. However, despite recent calls in Boston, Cincinnati and elsewhere, we can hardly fault the remaining departments who have proceeded more cautiously. Local governments are being asked to spend millions of dollars without an understanding of how best to use this technology. Just as we would not provide another weapon for an officer to use without protocols on how the officer should use the new device, many police chiefs and sheriffs are prudently waiting for more clarity on how footage from these cameras will be stored and used before implementing body camera programs.

States have addressed these challenges in a variety of ways. For example, earlier this year, the North Dakota legislature nearly unanimously exempted police body camera footage taken from a “private place” from open records law. The Arizona legislature considered a bill to completely exempt police body camera video from public record disclosure. Many other states have adopted legislation creating advisory committees to develop best practices.

Body cameras are here to stay. While many in the public and media are anxious for the broader use of police body cameras, we should not rush into the implementation of these cameras until best practices that protect public safety and privacy rights are fully vetted. Law enforcement should keep up with new technology, but it must be implemented in a way that does not interfere with effective policing.