Thorny Legal Issues Surrounding Body Cameras: From Privacy To Public Access

More and more law enforcement agencies across the country are outfitting their officers with body-worn video cameras and report better policing and public behavior as a result.

But Jim Bueermann, president of the Police Foundation, a Washington, D.C. organization that helps improve policing through research and training, said “There’s more we don’t know about the impact of body worn cameras than what we do know.”

Read the recent article on how police body cameras change our perception of right and wrong.

Here are some of those questions and some answers:

Privacy: “One important aspect to this that I don’t think many departments have grappled with,” said Catherine Wagner, a staff attorney with the ACLU of Southern California, “is that it’s really the capability of body cameras to be tools of surveillance. Very few departments have policies about this.” She worries, for instance, about peaceful protesters being taped using facial-recognition software and lists made of those protesting.

“You can conceive of a world where body-worn cameras are more like automated license plate readers and are logging information as officers go about their business instead of being used to record discreet incidents,” Wagner said.

Public access: Some agencies consider the videos to be part of an investigation and therefore unavailable to the public. Others release them on approval of the police chief, while others consider them for release through the Public Records Act.

Wagner said the ACLU believes that a person being videotaped should be able to view the tape.

“A lot of public support of body worn cameras is based on the belief that the public will get to see the footage. If only police get to see the footage and it never gets to the public, then that’s not transparency and accountability,” she said.

Gary Schons, a lawyer at Riverside law firm Best Best & Krieger, discussed the issue of varying policies in a brief for the California District Attorney’s Association:

“What has emerged is a realization that existing ‘freedom of information’ and public record laws, most of which either require unfettered public access or afford police agencies complete discretion over permitting or denying public access, are inadequate to the task of balancing the competing interests raised by the question of public access to BWC data. As legislators wrestle with these policy issues, and courts sort through the public records statutes, law enforcement executives and prosecutors will be called on to improvise policies that adequately and fairly balance the competing interests at stake.”

Best practices: Bueermann, a former Redlands police chief, said there are 25-30 studies of body cameras under way. “It indicates how the scientific community feels about this, and it’s a recognition of how little is known about the impact of these cameras,” he said.

There are some model policies supported by the National Associations of Chiefs of Police, Bueermann said, but there remain variations in policies as to when officers must turn on or off their cameras. In Beaumont and some other agencies, it is left to officers’ discretion. Beaumont Commander Greg Fagan said it’s difficult to expect an officer, in cases where he is under extreme stress, to always remember to flip the switch.

Wagner, of the ACLU, is concerned about agencies that are using the cameras – not in a pilot program – and have not developed a policy such as when the cameras are to be turned on and off. Or when or if video would be released and when officers can review footage before they give a statement.

Effect on officers: This is one of the big unknowns, Bueermann said. Do cameras change officers’ behavior? Does it change job satisfaction or discourage officers from being proactive? Do they believe they are being spied on by their supervisors? Is the video harmful to victims of crimes and others police interact with?

Usefulness in court: The videos don’t show key events that might take place before the cameras are turned on. Riverside-based defense attorney Virginia Blumenthal said there are also concerns about videos being altered “but not in this area.”

Blumenthal said she expects body camera footage to help resolve cases without need of a trial.

“Whether there is probable cause for a stop, whether there was resisting arrest, whether there was undue violence of the accused. Many times those issues can be resolved by those dash cameras, and I can see how it can be resolved by the body cameras,” she said.

Cost: Fagan, the Beaumont commander, said some agencies are rethinking their camera plans in light of high video-storage costs. “Once they get into it, (they discover) the costs are so astronomical that they are unable to afford it.”

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