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Here's How Police Could End Up Making Body Cameras Mostly Useless

The Huffington Post The Huffington Post 10/10/2015 Nick Wing
ATHENA IMAGE © Al Seib via Getty Images ATHENA IMAGE

Moments before he died, Charly Keunang took a swing at a cop. This wasn't an ordinary jab or hook. In cell phone video filmed by a bystander in March , the 43-year-old homeless man can be seen spinning toward a group of Los Angeles police officers, arms flailing. He looks more like the Tasmanian Devil than Mike Tyson.

The whirlwind attack lasts a few seconds, and then ends just as quickly as it began. Keunang, a Cameroonian immigrant who was known as "Africa" on Los Angeles' Skid Row , careens wildly into the incoming fist of one of the officers. The cop punches Keunang in the face and takes him to the ground, where the scuffle continues.

"Stop resisting," officers yell as they try to subdue Keunang. Four officers blanket him, and you can hear the sound of one of their stun guns clicking. "He has my gun. He has my gun," screams one. The officers then open fire.

An autopsy later shows that two bullets struck Keunang in the chest at close range. Two entered elsewhere on his torso, and two hit his left arm. Keunang was pronounced dead at the scene, his name among at least 61 unarmed black men killed by police this year, according to a database compiled by The Guardian.

 
Keunang frantically swings at LAPD officers at the beginning of a bystander video recorded on March 1. The clip has been slowed for clarity.

The eyewitness video of Keunang's death went viral, sparking protests from Angelenos who argued the shooting was further proof that the city's police department should overhaul its use of force policy and rethink its approach to dealing with the mentally ill. More than 1,000 people with mental illnesses are estimated to live on the streets of Skid Row, an expanse of downtown Los Angeles that has one of the nation's biggest populations of homeless people living on the streets. Tensions between police and civilians in the area run high.

As the public searches for answers about what happened on that afternoon in March, a new set of concerns has emerged about police officers' use of body cameras -- and how, or if, the devices will promote accountability and transparency if the policies that govern the footage are overly restrictive.

Two of the officers involved in Keunang's killing were equipped with body cameras that were recording during the episode. Although investigators have that footage in their possession, the LAPD has not publicly released it. Under recently adopted policy , the department likely won't release the videos unless it's compelled to do so in a criminal or civil court proceeding.

Without the body camera footage, a number of questions linger. What happened before the confrontation became physical? Could officers have done a better job of de-escalating? Does the body camera video provide a clearer picture of how and why officers resorted to deadly force?

The existing bystander footage has provided little conclusive evidence. LAPD officials have claimed the most-watched video shows Keunang grabbing an officer's firearm during the struggle, causing the officer to fear for his life. More than seven months later, the Los Angeles County district attorney, Jackie Lacey, hasn't announced whether charges will be filed against any of the officers.

To complicate matters further, the few journalists who have seen the body camera footage say it challenges the official police account and calls the department's tactics into question. At GQ, Jeff Sharlet wrote that the video never shows Keunang gain control of the officer's weapon. Gale Holland and Richard Winton of the Los Angeles Times reported that officers repeatedly threatened to use a Taser on Keunang before he got violent, while he was trying to talk with them.

It's unclear if the body camera videos will affect the decision about whether to charge the officers in Keunang's death. If the LAPD gets its way and the footage is not released, the public will be asked to trust that Lacey made her decision correctly and impartially. In other words, the presence of body cameras will have changed very little in this case, at least outwardly.

With more and more police departments beginning to adopt officer-worn camera technology, Keunang's death and its aftermath should serve as a warning. When the White House announced a $75 million initiative last year to expand body camera programs around the nation, it said the devices would help "build and sustain trust between communities and those who serve and protect these communities." But the equipment can only achieve this goal if the policies governing the use of body cameras and disclosure of the footage don't get in the way. 

Critics say the LAPD's body camera policy is problematic because it allows the department to withhold its footage from the public, it requires officers to review footage before they write police reports, it doesn't lay out clear punishment for officers who fail to turn on their cameras during critical incidents, and it doesn't provide clear privacy protections to limit public surveillance.

This is a troubling list of complaints. But at their core is an essential problem: Giving police the power to block the release of body camera footage deprives the public of an opportunity to better formulate an opinion about police tactics and to push back with facts, should community members find an officer's actions to be inappropriate. In many places, bad body camera policy is threatening to undercut public demands for accountability and transparency before programs even get off the ground.

Here are a few scenarios to look out for:

Your community might not get to decide whether it wants police to use body cameras in the first place.

 

Before civilians weigh in on how body camera programs should work, they need to decide if they want police to have the devices at all.

People are already being left out of this most basic decision-making process, says Nadia Kayyali, an activist for the Electronic Frontier Foundation, a nonprofit that focuses on digital rights and technology. 

"Where body cams are being adopted, it's really important that community members -- particularly those who come from the communities that are most affected by police accountability issues -- need to be involved in that decision. They need to have a discussion," Kayyali said. "And what we're already seeing is that instead, law enforcement agencies are applying for this money without that discussion."

Last month, the Justice Department announced grants to help 73 local and tribal agencies in 32 states expand their body camera programs. Many other cities and towns had already started to do so, though a number of major metropolitan police forces have been slower to move, often due to disputes over the costs of equipment and data storage, as well as resistance from police officers themselves.

But while many departments have either begun equipping officers with body cameras or have outlined plans to begin the process, most of them have not yet released official guidelines on how the cameras will be used. Some departments are in the process of drafting policy for the use of body cameras. Others are waiting for pilot programs to conclude before moving forward.

Activists and police officials regularly tout the acquisition of body cameras as a key step toward reform, but many people are still skeptical, believing the devices could fail to prompt meaningful change and even make certain issues worse.

"There is concern that body cameras can be misused, are going to provide more ammunition in court for prosecution, rather than accountability for law enforcement themselves," said Kayyali. "There is concern that they are really creating pervasive surveillance."

Your community might not be included in the policy-making process.

 

Even if residents agree that police should be equipped with body cameras, they most likely won't get final say over the policies that will ultimately determine how effective the programs can be.

A coalition of more than 30 groups, including the American Civil Liberties Union and the EFF, signed a letter in May that outlined a set of body camera principles for departments to consider. First among them: "Develop camera policies in public with the input of civil rights advocates and the local community."

Many departments have taken this advice to heart, at least in theory, by holding listening sessions and seeking public input about body cameras. But just because they're asking people to submit recommendations doesn't mean they're actually including them in the resulting policies.

Cities like Los Angeles have already come under fire for not allowing sufficient public input before drafting policies, and for putting forth proposals that critics say have failed to incorporate civilian priorities. In September, the ACLU suggested that the Justice Department should deny federal grant money to Los Angeles due to deficiencies in its body camera policy. But the LAPD ended up receiving a $1 million grant, putting it among the top funding recipients.

Police could make it difficult or impossible for the public to access critical body camera footage.

 

This is the biggest concern for civil rights groups and the public, who have pushed for the adoption of body cameras largely in the belief that they can make police more transparent and accountable.

But in some places, law enforcement is already severely restricting the footage it will release publicly. In Los Angeles, for example, body camera footage is explicitly exempted from public records laws. The chief of police can decide to release video as he or she sees fit.

The District of Columbia is currently considering a proposal not to publicly release body camera footage if there are pending criminal charges against a suspect or an officer. In matters of great public interest, however, the mayor would have the authority to decide whether or not to unseal related video. This policy was suggested after Mayor Muriel Bowser attempted earlier this year to make all body camera footage exempt from public records requests.

In Las Vegas, which has taken a more open stance on body camera footage, police will be allowed to withhold video pertaining to ongoing criminal investigations or internal investigations. While this may make sense in some cases, many of the most controversial incidents -- shootings, in-custody deaths, use of force complaints -- typically result in these types of probes, meaning police could use this provision to suppress the majority of consequential footage until after the investigation has been completed. 

Together, such measures have the effect of preserving the existing system, in which the public must simply trust that law enforcement will properly resolve any issues without external oversight.

That's not helpful.

"If you're using body cameras for accountability, you can't then depend on police discretion for the footage to be used for that purpose," said Kayyali. 

Police may end up using the footage only for their own benefit.

 

Another emerging point of contention is whether officers will be allowed to view recorded footage before filing their reports or making statements about an incident.

Law enforcement officials in a number of cities, including San Francisco, San Diego and Denver, have said their officers should be able to do so. A Justice Department report on body cameras released in 2014 supports this practice, claiming it will help ensure accuracy, though as The Washington Post recently reported, the director of the group that authored the report has since changed his mind.

In Los Angeles, any officer accused of excessive use of force or grave misconduct will be required to review relevant body camera footage before giving any statement to investigators. Civil rights groups like the ACLU, however, see this as a move that will taint the investigative process before it begins and protect officers from potential repercussions for misconduct.

"It will allow officers to lie and tailor their stories to the video," said Jay Stanley, a senior policy analyst for the ACLU's speech, privacy and technology program. "But even for most officers who don't lie, video is not an objective record, and even memory is not an objective record. The officer might see things or experience things the video doesn't capture, depending on lighting, camera angle, when the video was turned on or turned off."

Beyond that, there's the more basic matter of preferential treatment. A civilian under police investigation would not get to review an officer's body camera footage before being questioned. Some argue that police deserve certain privileges in the legal process, but Stanley says that if the goal is equal justice under the law -- even for the law -- this shouldn't be one of the benefits.

"An investigation is supposed to be a search for truth. The families of a person who's been shot or beat up, they deserve the truth," he said. "This is not a policy that will yield truth most accurately."

Officers may not face significant punishment for failing to enable cameras or for disabling them.

 

While police are pushing for a variety of measures that may end up making body cameras less helpful to the public, the equipment is completely useless if it's not being used properly in the first place.

To make sure that officers can't simply snuff out evidence of misconduct by switching cameras off or by tampering with footage after it's recorded, the coalition of civil rights organizations recommends that departments outline clear policies about when and where officers must turn body cameras on, and enforce strict disciplinary protocols for any violations.

Many departments have established specific guidelines to determine which kinds of interactions with civilians should be recorded, but the punishment for failing to follow policy may not fit most people's definition of "strict."

In Los Angeles, the city's body camera policy doesn't lay out specific sanctions for an officer who fails to activate the device, though it does say that any tampering with the footage will be "considered serious misconduct and subject to disciplinary action."

In other cities, the disciplinary response is less vague. In Denver, the first failure to adhere to body camera recording requirements in a 12-month period will result in a written reprimand. A second violation in the same period means will result in the officer being fined a day's pay and subjected to an in-depth audit of his or her body camera use. A third violation will trigger a formal disciplinary case, while "purposeful, flagrant or repeated violations will result in more severe disciplinary action."

It's not clear what level of discipline is necessary to ensure that officers are compliant with body camera programs, but there's reason to believe they'll need some pressure. Over the years, we've seen a number of controversial incidents in which dashboard or surveillance cameras supposedly "malfunctioned" at critical moments. Important footage has also simply gone "missing," making it impossible to prove allegations of misconduct.

And in the past year, there have been at least a few instances of officers not activatingbody cameras before fatal encounters.

Pilot programs have provided some insight into how this problem could play out when more officers are equipped with body cameras. In Denver, an independent monitor's review found that over six months, many officers failed to record incidents in which they used force. At the time of the report in March, police officials disputed the findings and refused to clarify if those failures were a result of policy violations or faulty equipment.

Sensitive body camera footage could end up coming back to bite you.

 

Another essential aspect of the debate over body cameras centers around privacy. As body cameras become commonplace, police will increasingly be recording in private settings and sensitive situations that involve victims, witnesses and bystanders. Only some of this footage will be of value to the public interest. Good body camera policy should honor the need for transparency while minimizing the potential for privacy violations or putting recorded subjects at risk.

Many cities have drafted policies requiring officers to notify individuals when they are being recorded in their homes or elsewhere. Others clearly lay out instances in which officers may switch off their cameras at the request of a victim or witness.

In Seattle, where police are releasing a much higher volume of video to the public, the city's police department has decided to withhold footage recorded in private. Other video appears online in heavily redacted form, but gives people the option of filing a formal request to view an unedited version.

These are positive steps, but they don't eliminate the possibility of abuse. A letter from the ACLU criticizing the LAPD's body camera policy suggests departments must set down clear guidelines to prohibit footage from being used for any political or personal purposes.

"Finally, while the policy bars unauthorized release of video by officers, its failure to set any rules for release through authorized channels threatens privacy by potentially allowing release of sensitive or embarrassing footage where there is no clear public interest in disclosure," writes the ACLU.

Officers may use body camera footage for more general surveillance.

 

Civil rights groups are also concerned about the risks of encouraging police to equip every police officer with a device capable of constant recording.

"We're very concerned that this technology will expand to include things like facial recognition," said Stanley. "[The use of body cameras] should be something that helps an investigation and helps establish trust between community and police officers. This should not become yet another surveillance tool."

Police departments are having enough trouble figuring out how to use body cameras in their current, relatively primitive form, so perhaps this isn't an immediate concern. But as the devices become more widely used, it seems likely that their capabilities will expand in ways that would further benefit law enforcement. After all, they're the ones buying the products -- even if it is with taxpayer dollars.

"We don't want the kind of scenario where facial recognition is run against all video with the identity of everybody who's spotted anywhere at any time logged and stored in some government database -- or for this to be turned into the facial equivalent of license plate scanners, where everyone's face is scanned," Stanley said.

Body cameras may work better or worse depending on which state you live in.

 

Keeping an eye on what your local police department is doing about body cameras is important, but it might not be enough. Around the nation, states are reforming public access laws in ways that will ultimately make it harder for body cameras to further the goals of police accountability and transparency. According to the Reporters Committee for Freedom of the Press, 10 states have already passed laws this year that will limit access to these videos, while a number of others proposed unsuccessful legislation.

 
 

South Carolina and Texas, for example, passed laws that put a lid on public access to most, if not all, body camera footage. In South Carolina, those videos are now completely exempt from the state’s public records law. In Texas, any video that pertains to a case that is under criminal or administrative investigation will only be released to the public after the probe has been concluded. Police officials in those states can release footage as they see fit.

As more and more states take the body camera push into their own hands, the growing use of this equipment could end up being accompanied by sweeping laws that actually make it less effective.

Civil rights advocates like Stanley say people are right to be concerned about many of the emerging trends in body camera policy. But it's still very early in the process, and if body cameras are indeed here to stay, he says there's reason to be optimistic that the rules governing their use will evolve in the right direction.

"Inevitably, we'll see a range of policies -- some good, some bad -- but our hope is that over time, things will coalesce into a national standard of best practices around this technology," he said. "And police departments or states that aren't complying with it will come to be seen as unprofessional outliers."

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