Body cameras and the purpose of law enforcement

My wife, Kathy Mitchell, who incidentally joined the staff of the Texas Criminal Justice Coalition at the beginning of this month, has been working on the issues surrounding local policies police departments must enact governing use of body cameras under Texas' new statute passed in 2015. She authored this item reacting to debates with city staff in Austin surrounding whether to view body camera footage primarily as evidence in criminal cases or also as a police accountability tool. See also her earlier commentary on bodycams.

What is a “law enforcement purpose?” Pretty straight forward. We have a police department to solve crimes and keep the public safe. But is accountability to the public a part of that job? In Texas, where officers shoot people at higher rates than NYC or Chicago, it should be, but that idea is very much up for debate.

Today’s news that APD Chief Art Acevedo has been reprimanded, with five days lost pay, for talking too much about the officer-involved shooting of David Joseph, does not bode well.

In a refreshing move from the perspective of those who have watched many investigations of officer involved shootings drag on for a year or more, Chief Acevedo moved quickly to complete an investigation that resulted in the termination of Officer Geoffrey Freeman.

At issue: Did Officer Freeman reasonably fear for his life from a “charging” but naked and clearly unarmed teen?

What if Officer Freeman had been wearing a body camera? And what if the video had been released immediately, or even upon completion of the internal investigation? Then everyone in Austin would now have detailed factual information about exactly what happened. Instead of debating whether Chief Acevedo talked too much, we could be debating the real issues around police use of force.

The police union defends Freeman based on a framework for the use of force that is long overdue for change. After years of work, the Police Executive Research Forum, a national law enforcement standards group, last month released new principles for use of force that could make the public and police officers safer.

But first we need to overcome the information problem. We cannot come together as a city around reforms if we don’t move towards a shared information framework. That is the promise of body camera video if it is released.

Austin City Council will move forward in mid-May with a proposal to contract with Taser for an initial 500 police body cameras. APD’s pilot of the Taser technology has already been completed and the contract will be completed quickly once Council approves the expenditure. But right now, we don’t have policies in place that will result in public access to the video.

The state law governing body cameras allows for a great deal of secrecy surrounding body camera video.

(a) Except as provided by Subsection (b), a recording created with a body worn camera and documenting an incident that involves the use of deadly force by a peace officer or that is otherwise related to an administrative or criminal investigation of an officer may not be deleted, destroyed, or released to the public until all criminal matters have been finally adjudicated and all related administrative investigations have concluded.

(b) …

(c) This section does not affect the authority of a law enforcement agency to withhold under Section 552.108, Government Code, information related to a closed criminal investigation that did not result in a conviction or a grant of deferred adjudication community supervision.

What does all that mean? That depends.

• If an officer is actually prosecuted for a crime (Officer Kleinert in the Larry Jackson shooting is the only example of that in the past decade) then the video can be held in secret for years until all appeals have been concluded. If the officer is not convicted, the video can be permanently sealed.
• If the DA takes the issue to a grand jury and the grand jury declines to recommend prosecution (the Travis County Grand Jury has “no-billed” three officer involved shootings and a taser incident so far this year) the video may be released by the DA’s office at the time of the grand jury decision – typically a year or more after the incident. This is discretionary; not all counties release this information.
• If there is a complaint after an incident but the DA does not take the case to the grand jury, then it is most likely the city would never be required to release video because the details of administrative procedures can be kept closed under civil service law. (Govt. Code 143.089(g))

But in between the two paragraphs above, the statute also says this: “(b) A law enforcement agency may release to the public a recording described by Subsection (a) if the law enforcement agency determines that the release furthers a law enforcement purpose.”

The statute fails to define “law enforcement purpose” in this context. Worst case, APD could release video that reflects well on its officers and not release more troubling video. The public would never know why APD selectively released some videos and not others.

But Austin can decide that transparency and accountability are “law enforcement purpose[s]” which will trigger public release of all body camera video after a critical incident (shootings, injuries). A calendar for such release (say, within 10 days of providing it to all parties in any criminal or administrative case) would give both the public and APD officers confidence that every case will be treated the same way.

Public trust built on transparency and accountability are clearly “law enforcement purposes” in the aftermath of Chicago's experience. Chicago launched lengthy court battles to prevent public release of videos showing police shoot Cedrick Chapman and Laquan McDonald. Austin must be different, and our decisions on this front will be critical to creating public confidence in the city's body camera program.