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The Unblinking Eyewitness: Should All Police Start Wearing Body Cameras?

January 6, 2014
by Eli Wolfe
Cops arresting a man

Editors’ note: Minutes after the announcement that a Missouri grand jury would not indict Ferguson police officer Darren Wilson for shooting unarmed black 18-year-old Michael Brown, Brown’s family released a statement urging that police be required to wear body cameras to record their interactions. The Obama administration and some law enforcement officials have also endorsed the idea. This article delves into the potential pros and cons.

On October 22, Sonoma County sheriff’s deputy Erick Gelhaus spotted 13-year old Andy Lopez walking on the side of the road in Santa Rosa carrying what appeared to be an AK-47 (it was a BB gun). Investigators would later report that after Gelhaus’ partner pulled over, Gelhaus exited the vehicle, drew his weapon, instructed Lopez to drop his weapon, and then watched as the boy turned around still holding the gun.

Several civilians witnessed the 10-second interaction, including one who reportedly told investigators that Gelhaus shouted at Lopez before firing his weapon. But there was no camera or audio footage to document the sequence of events.

What is indisputable is that the deputy fired eight shots at the boy, and that he died from his wounds.

Andy Lopez
Andy Lopez

The incident sparked an instant uproar that spread well beyond Santa Rosa. Some protesters, noting that Gelhaus is white and Lopez is Latino, called the shooting an example of “racist police terror.” The parents of Lopez filed a federal lawsuit against the department, alleging that it deprived their child of his civil rights. After a lengthy investigation, prosecutors decided there was not evidence to charge the deputy, and he was returned to desk duty.

The Sonoma County Board of Supervisors responded to the community outrage with a slew of measures. The supervisors endorsed a memorial park for Lopez, they created a community task force to help monitor law enforcement in the county, and they initiated an internal review of the police department’s lethal force policy.

But the measure they hope will create the most “lasting change” was their decision to spend $250,000 on lapel cameras for police officers.

Three or four years ago, spending a quarter of a million dollars on police body cameras—also called Personal Digital Recording Devices—would have been unheard of in Sonoma County and in virtually any other jurisdiction.

Not anymore.

Over the last few years, thousands of law enforcement agencies around the country have purchased body cameras for their officers. The Bay Area is home to a growing market for the devices: Palo Alto and Richmond purchased body cameras just weeks ago, and San Francisco and Sonoma County are initiating pilot programs next year, and Oakland launched one of the country’s first body camera programs back in 2009. As of today, according to Oakland police officer Dave Burke, the city equips 455 officers with Personal Digital Recording Devices—making it the largest wearer of body cameras in the country.

Oakland’s program has attracted the attention of agencies as far away as Australia interested in implementing body cameras. Police agencies in dozens of different countries are joining the trend. Already in the United Kingdom, almost 50 percent of law enforcement agencies have equipped their officers with body cameras.

“Most agencies look to us as the industry leader as far as body-worn (cameras),” Burke says. “They’re contacting us daily about how to start a program.”

To a certain extent the drive to put cameras on officers has been triggered by the desire for greater surveillance of police interactions by civilians.

“I think what’s really pushed this forward in a lot of ways is the general public’s use of cell phones and use of cameras,” says Andrea Russi, director of criminal justice for the Warren Institute on Law & Social Policy and a lecturer at UC Berkeley’s law school. “So there’s a value to police departments also having similar technology.”

Body cameras have a few other obvious benefits. Foremost, recording devices can help substantiate the claims of victims of police misconduct.

“Good or bad, ugly or different, this is going to be a tool, and it’s a permanent eye­witness.”

“It can be difficult sometimes for people who claim the police are wrong to convince a judge or a jury to believe them over a police officer,” says Dave Sklansky, a professor of law at UC Berkeley. “If the police know what they’re doing is recorded, it may lead them to be more careful about what they’re doing.”

Body cameras also promise police greater protection from false claims of misconduct. The International Association of Chiefs of Police (IACP) surveyed thousands of officers on the effectiveness of in-car cameras. The data revealed that officers accused of misconduct were exonerated 93 percent of the time when a dashboard camera recorded their interactions. A majority of agencies that used in-car cameras reported that officers were exonerated more frequently when there was video evidence.

“Having cameras takes away the he-said-she-said thing… It can improve accountability that way,” Russi says. “It can also be cost effective because misconduct and lawsuits prove to be so expensive for police departments.”

The price of misconduct for a police department—even when it’s alleged— can be crippling. The federal lawsuit the Lopez family filed against the Sonoma County sheriff’s office could cost the department hundreds of thousands of dollars. The incident has also damaged the agency’s credibility in the community.

“Abusive behavior by police officers is highly corrosive to the trust relationship between the police and the community,” says Sklansky of Berkeley Law. “If the cameras wind up having a civilizing effect on the way police communicate with citizens, that would be good.”

Repairing—or in some cases, building—trust between police and the community is made easier with unimpeachable evidence that holds all parties accountable for their actions.

Oakland, like many other departments with body cameras, has officers upload their recorded data to a protected server. Once on the server, recordings can’t be tampered with and access to them is tightly controlled.

“Good or bad, ugly or different, this is going to be a tool, and it’s a permanent eyewitness,” says Burke of the Oakland department. “Our video cannot be altered in any shape or fashion. What you get once its recorded is the raw form.”

So far it looks like this could trigger positive changes. Last year the Police Foundation, a nonpartisan group that studies law enforcement, conducted a randomized controlled study on the effect of body cameras on police interactions in Rialto, a small city in San Bernadino County. The results were encouraging: there were 88 percent fewer citizen complaints in 2013 than 2012, and the use of force by officers dipped by 60 percent.

“It’s the way of the future, and it’s the way everybody else, every other department, is going right now.”

Researchers caution that Rialto is virtually the only comprehensive field study of body-worn surveillance technology. But that fact hasn’t slowed the appetite of departments for body cameras: Taser, one of the leading suppliers of law enforcement body cameras, announced that its revenue from surveillance-related products increased by 111 percent during the third quarter of 2013.

A body camera program is not cheap. Oakland has purchased more than 500 cameras from the manufacturer Vievu, each costing approximately $889, with a total cost somewhere around $500,000. Nonetheless, many departments are starting to regard it as a necessary expense if they want to stay on the cutting edge of law enforcement.

“Like with anything else, you might have people who won’t support it,” Burke acknowledges. “But it’s the way of the future, and it’s the way everybody else, every other department, is going right now.”

It’s likely that trend will continue as body cameras gain support from civil rights organizations. In October the American Civil Liberties Union officially endorsed the use of body-worn cameras as a method for curbing police abuse—as long as they are carefully regulated.

The support of the ACLU is a major boon for body camera advocates. But it may be premature given how few of the ACLU’s conditions are likely to be met by police departments.

One major civil liberties concern is California Penal Code Section 633, which exempts law enforcement officers from having to inform suspects that they are being recorded. This handily circumvents California’s “two party consent” statute, which states that all parties involved in an interaction must grant their permission to be recorded.

Police departments have used general orders to extend this exemption to body cameras. Oakland’s department issued a general order in 2011 informing officers they are not required to ask for consent before they record individuals. This includes when the officer is in a location where “there is an expectation of privacy,” such as in private homes.

“The home is the ultimate refuge from the eye of the community and the eye of the government, and it’s been recognized as such in our legal traditions and our culture,” insists Jay Stanley, the author of the ACLU endorsement paper. “The idea that somebody facing a terrible situation that requires police officers to enter their home, that that video tape could escape to the broader community, is anathema to our oldest traditions.”

Russi of the Warren Institute notes that the presence of body cameras could complicate police work if it winds up discouraging victims from speaking candidly with officers. “If you have a domestic violence case, there’s a whole lot of issues going on,” she says. “If an office shows up and is recording, is it going to change what information people are going to give the officer?”

The ACLU also recommends deleting data without evidentiary value after several weeks. Under Oakland’s general order, all data—whether or not it has been flagged—is kept on a secure server for five years before being destroyed. To Stanley, this suggests a potential abuse of surveillance technology.

“We’re in this weird place where privacy has become so different than it was ten or fifteen years ago. It’s not shocking to people to have somebody record what they’re doing.”

“The authorities could enter a photograph or your name and suddenly come up with every bit of video footage in which you appeared—even in the background—for many years and find things that could be used against you,” Stanley says. “The government isn’t supposed to keep information on people that doesn’t have to do with a crime. They shouldn’t be doing it.”

Protocol varies significantly from department to department—as does the clarity of regulations. In Richmond, for instance, footage recorded on body cameras is held for one year. But the department can also retain recordings of some crimes until the statute of limitations expires, which varies on a case-by-case basis.

It’s also difficult to determine where these policies should be coming from.

“In addition to uncertainty about what the rules should be regarding how these records are kept there’s another set of questions about who should be making those decisions,” said Sklansky of Berkeley Law.

Other experts say there might be a fairly simple reason why protocol for body cameras is often complicated, vague, or absent. “A lot of this stuff is just so new it’s unregulated,” says Andrea Roth, a professor of law at UC Berkeley. “Not by design even, but just because the implementation and the technology is outpacing our public discourse.”

Roth compared body cameras to rogue DNA databases—DNA samples police collect from suspects outside normal protocol like a court order. As with rogue databases, cameras have only recently emerged as a source of hairy legal issues. “There’s no statute that says what you can do with a person’s DNA when they voluntarily give it to you—or when it’s left on a cigarette butt,” Roth said.

And as with rogue DNA databases, it’s required scandals to bring body cameras to public attention.

During an Occupy Oakland protest in 2011, an Oakland police lieutenant turned off another officer’s body camera after a photographer asked why he had covered his nametag. Civilian video footage from another Occupy protest in January appeared to show that Oakland officers had their cameras off while arresting protesters. A photograph from the same protest showed one officer firing beanbag rounds from a shotgun while his camera was off.

“Obviously if the officer can control turning the camera on and off, that…undermines their value and the accuracy of the information you’re getting.”

This behavior was a flagrant violation of the department’s operation plan for handling the protest. Reports of officers working with their cameras off resulted in numerous citizen complaints, and was among the factors that prompted Oakland police chief Howard Jordan to call for the officers involved to be disciplined.  The Oakland police also issued a general order several months later that directed officers to keep their camera on during virtually any interaction they may have with suspects or civilians.

But experts point out that it’s difficult to enforce many of these policies when the officer is in the field.

“Obviously if the officer can control turning the camera on and off, then that sort of undermines their value and the accuracy of the information you’re getting from the camera,” Russi says.

Some police watchdog organizations are doubtful that officers can ever be adequately trusted to monitor their own behavior. Rashidah Grinage, director of People United for a Better Life in Oakland, thinks citizens will always be a more reliable source of information on police misconduct.

“We know for a fact that if it hadn’t been for the cell phone cameras in the Oscar Grant case, or indeed, in the Occupy [events], many of the allegations of complainants and plaintiffs would have been basically un-provable,” Grinage said. “Going back to Rodney King, we understand the incredible value of video in citizen efforts to be able to prove essentially, without controversy or challenge, what occurred.”

Body cameras may make it easier for police departments to hold officers accountable for their actions. But in California, other legal measures have actually made it harder for the public to see how misconduct is addressed.

In 2006, the California State Supreme Court made a critical ruling in the case The Copley Press, Inc. v. The Superior Court of San Diego County that forbid the public disclosure of records on disciplinary proceedings for individual law enforcement officers. As a result, police monitoring organizations like citizen review boards lost much of their power to hold police officers accountable to the public.

“In cities like San Francisco and Oakland and Berkeley there (used to be) evidentiary hearings. Anybody could attend those hearings… The outcomes of those hearings were made known and were reportable, along with the officer’s name,” Grinage says. “Copley changed all that.”

Copley strengthened an already formidable legal shield that protects the privacy of California law enforcement officers. Take for instance California government code 6254, which exempts law enforcement files from public disclosure. The Fresno Police Department used this provision to withhold personnel records of 27 officers involved in repeat shootings of civilians between 2002 and 2009.

Protection of confidentiality doesn’t mean officers evade discipline. But it can deny the public the right to know when an officer is exhibiting a pattern of misconduct that puts civilians in danger.

Grinage says the overall consequence of the Copley ruling has been to obscure patterns of misconduct among individual officers—something body cameras may be able to document but not necessarily correct. “Now there is an almost complete blackout with respect to any information that comes out about what happened as a result of any complaint being filed or evidentiary hearing,” Grinage said. “Not only have we made no progress in terms of police misconduct—we’ve actually gone backwards by providing greater protection and anonymity to officers who behave badly.”

Not everyone agrees. Criminal justice experts at UC Berkeley say that in general, policing has improved a great deal.

“Police departments today are vastly better than they were two decades ago,” Sklansky maintains. “They’re better at fighting crime, they’re better at keeping communities safe, and they’re better at ensuring that their officers stay within the limits of the law.”

It’s also possible that some of the most worrisome aspects of body cameras may not be so objectionable to the public.

“We’re in this weird place where privacy has become so different than it was ten or fifteen years ago,” Roth says. “It’s not shocking to people to have somebody record what they’re doing the way it would have been earlier.”

Micaela Davis, a lawyer in the ACLU’s Northern California office, says that anecdotal evidence in the Bay Area suggests that body cameras are proving useful in some jurisdictions. But she also cautioned that they can’t be looked at as a quick fix solution.

“This should be looked at in the context of a whole host of reform,” Davis said. “Body cameras are a great vehicle for ensuring police accountability, but by no means are they the end all and be all of what needs to happen.”

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