Monday, February 15, 2016

Bodycam rollout must come with transparency

My wife, Kathy Mitchell, has been working with local advocates on the rollout of police bodycams and the implementation of local policies governing their use. She authored this guest post articulating shortcomings in both Austin's current bodycam policy as well as the governing state statute.

We've all heard the old conundrum, if a tree falls in the forest and no one is there to hear it, did it make a sound?  The rollout of police bodycams in Texas raises a similar dilemma: If misconduct is recorded on a police bodycam but the public isn't allowed to see it, do the cameras really hold police accountable?

The City of Austin recently closed its RFP for a body camera vendor. According to the calendar in the RFP (about page 22 of the document), the department plans to move quickly, picking a top vendor and launching a pilot by March 1.

However, APD has yet to resolve any of the more complex issues that must be addressed by a body camera policy before cameras can be turned on everyone that an officer might encounter:
  • when can officers turn off cameras and what documentation must accompany such a decision?
  • when can the public see video related to allegations of misconduct?
  • when can a complainant get a copy of a video related to a complaint?
  • how and when can members of the public elect to have video of their encounters with police made public?
  • under what circumstances can the media or community groups see video of officers' encounters with members of the public?
  • can facial recognition technology be used to turn video storage databases into data about individuals?
Recently, the Brennan Center issued a review of body camera policies in various cities. Austin's current published policy (Policy 303 of APD's Policy Manual) addresses a total of none of the issues related to victim and witness privacy, other uses of the data, and protection of first amendment rights.

During one public meeting last December after the release of some draft policy concepts, members of the public pressed for answers in another key area -- when and how the public will be able to see video related to incidents of police misconduct. In the aftermath of Chicago's lengthy court battles to prevent public release of videos showing police shoot Cedrick Chapman and Laquan McDonald, Austin's decisions on this front will be critical to creating public confidence in the body camera program.

Radley Balko of the Washington Post took a look at what can happen if the local policy falls short. He notes that, with the notable exception of Seattle, many cities have announced that the police department will decide who gets to see video and when. "Seattle has found a way to put the videos online while anonymizing the faces of people who appear in them." That sounds like a good model for Austin.

Austin starts this process with a profoundly flawed legislative framework passed last session along with the more laudable (and more widely publicized) $10 million in grant funds to outfit local police with body cameras. Under Sec. 1701.655 of the Occupations Code, Austin must include in its policy a provision "entitling an officer to access any recording of an incident involving the officer before the officer is required to make a statement about the incident." That clause alone serves to undermine the entire endeavor. Citizens who are part of an "incident" involving police won't get to see video before making a statement because they might fabricate a story to fit the video. But isn't the same true for officers? This needs to be fixed in 2017.

The statute gives police departments the ability to keep video essentially secret, but it also gives cities and counties the option to release the video for any "law enforcement purpose." So, why wouldn't the city just define transparency and accountability as a "law enforcement purpose?" Doing so would create a local framework for releasing video of incidents of deadly force and incidents leading to an investigation of an officer. Austin is not Chicago, and should take steps to demonstrate that fact before the first body cameras are clipped to an officer's uniform.

The new statute (Sec. 1701.661) also suggests a framework for giving the public a great deal of control over which videos related to minor incidents like traffic stops can be released. APD cannot release these videos without "written authorization." Austin can define "written authorization" to be a simple opt-to-release clause on traffic tickets and citations. An officer can tell a motorist that the interaction has been videotaped and ask if the motorist agrees to public release of the video. One would guess that people who have been very happy with their encounter or very unhappy with their encounter are most likely to agree to public release.

But a lot has to happen very rapidly for a strong body camera policy to emerge from City Council and Chief Acevedo's office by the March 1 deadline for the pilot project set out in the RFP.

RELATED: See an editorial from the Beaumont Enterprise titled "Police bodycam footage must be accessible."

3 comments:

Anonymous said...

"Under Sec. 1701.655 of the Occupations Code, Austin must include in its policy a provision "entitling an officer to access any recording of an incident involving the officer before the officer is required to make a statement about the incident." That clause alone serves to undermine the entire endeavor. Citizens who are part of an "incident" involving police won't get to see video before making a statement because they might fabricate a story to fit the video. But isn't the same true for officers?"

I favor all parties with standing having access rather than remove officers from having access to seeing the footage before a statement is given. Presumably, someone complaining about misconduct has a very clear idea of what they felt was wrong with the interaction and is likely one of their very few such interactions with the law while the cop might have hundreds of interactions with people in a given time frame so the video is more important to review. As the policing department would have full access to any such footage to review it before deciding how to treat the matter, from something simple such as did an event occur, was it a particular cop, or was the version told by the complaining party reasonably accurate to something harder to address like an emotional belief involving tone of voice or show subtle hints of potential misconduct but nothing obvious.

So while I am of the more of mind that you give up most privacy rights when you enter the public realm, as it relates to a traffic enforcement encounter for example, than if the cops break down your door based on a neighbor calling them because they heard screams and cries for help, many of these issues should have been addressed in public forums beforehand, not tacked on or rubber stamped by some carefully selected group of residents or self proclaimed experts. Removing access to the cop being investigated is merely playing a game of gotcha with limited resources while limiting access to directly impacted parties could help provide a fuller version of what really took place in an encounter. Local media in Houston shows the main newspaper posting front page pictures of those accused of crimes with no retractions when many are found not guilty or charges are dismissed so offering them yet another means to publicly shame citizens for headlines is not something most people seem to want.

Chris H said...

@Anonymous 6:11

The point of an interview is to get an account from the person as they perceived the incident. Showing the police officer the video before interviewing him obtains an account from the person as they believe others will perceive it.

How do you get to mens rea if the suspect can reshape his story to fit the evidence?

Richard Boland said...

Grits, I had the honor of meeting your lovely wife, and discussing this very topic. Since she had on an Innocence Project shirt, I asked her if she knew you. Hilarity ensued.