After yet another horrifying, videotaped police killing of an unarmed black man, it’s increasingly hard to find anyone who doesn’t want more video recording of police activity. As politics generally does, this cause has brought strange bedfellows together: libertarians, liberals, conservative bloggers and pundits—and even many police unions.
The question is where law and policy are headed next. And the answer is: just about everywhere. States and municipalities are acting, as they often do, as laboratories for social policy. This is the case both for citizen recordings and for police-worn body cameras.
First, regarding citizen recordings, the state of the current law is relatively clear. Private citizens have the constitutional right to videotape police, while police retain the right to order them to move back if they are interfering with police work in any way. This was the unanimous appeals court holding in the 2011 First Circuit case of Glik v. Cunniffe and it has been applauded by everyone from the ACLU to Breitbart.
States have gone in both directions on citizen recordings. Legislators in the state of Colorado recently proposed making it a crime for police to stop citizens from filming, which, despite its unconstitutionality, happens all the time (here’s one such video).
At the other end of the spectrum, one Texas lawmaker has introduced a bill making it a crime to film police within 25 feet of an ongoing investigation. Exceptions would be made for official news media, but not individual citizens like Feidin Santana, who filmed the killing of Walter Scott. The bill’s sponsor says this is merely to stop interference, although 25 feet sure is a large buffer zone and would render it impossible for the subject of the arrest to record anything at all. Not surprisingly, the bill has been extremely unpopular, seems unlikely to pass, and would probably be found unconstitutional anyway.
In the meantime, technology continues to advance. As The New York Times reported in the wake of the Walter Scott shooting, there are already apps for that. Apps with names like “Cop Watch,” “I’m Getting Arrested,” and “Stop and Frisk Watch” all feature instant, easy recording and upload capabilities so you don’t have to fumble around with your device, which might provide probable cause for lethal force.
Of course, just reaching for your phone (or your wallet—remember Amadou Diallo?) might get you shot as well. Just ask Levar Jones, who was shot by a cop while retrieving his wallet—an incident recorded on the cop’s dashboard camera.
Regarding body cameras—“on-officer recording systems,” in official jargon—the official U.S. government data (PDF) reveals that about 25 percent of police agencies already use them to some extent, with 80 percent evaluating their use. Indeed, in the wake of the killing of Walter Scott, North Charleston just ordered 150 more of the them. (In a nice irony, one of the leading manufacturers of police body cameras is, in fact, Taser.)
Perhaps surprisingly, police unions have generally not opposed body cameras. Good cops have pointed out that body cameras help defend against unfounded citizen complaints. Body cameras may well end up exonerating more police officers than convicting them.
And with the rise of smartphones, recording is inevitable anyway; better to have a clear record in every case than rely on whether a passerby happens to be recording or not. Especially when the presence of those passersby can inflame tensions in a potentially volatile situation, and add to the risk of danger.
Liberals, libertarians, and progressives likewise favor the use of body cameras, although with the cameras pointing outward from police officers, there are serious privacy concerns for the people being filmed. In an age in which elevator security camera footage ends up on YouTube (especially if you’re a celebrity athlete), it’s easy to imagine cop-cam footage leaking out as well.
How to balance those concerns is often, itself, a matter of controversy. In Florida, for example, one version of a body-camera bill would prohibit the release of the footage whenever the video “is taken in a home; includes footage of someone under 14, or 18 if taken in a school; contains information obtained at emergency scenes; describes events on property used by medical or social service agencies; or is recorded anywhere there is an expectation of privacy.”
These exceptions were so broad that the ACLU and other civil rights organizations ended up opposing the bill, urging lawmakers to adopt a different version instead. Such carve-outs are supposedly intended to protect privacy, but could end up protecting police misconduct.
The ACLU, incidentally, has proposed a detailed set of policy proposals for body camera laws. One passage aptly captures the organization’s ambivalence: “Although we at the ACLU generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers.”
Worryingly, a recent survey showed that of the law enforcement agencies using body cameras, nearly a third had no written policy regarding the devices, the conditions for data retention, or privacy issues.
There have been pockets of opposition.
At the left-wing end of the spectrum, some progressive activists have argued that the focus on cameras misses the point of systemic problems in training and standard operating procedure, not to mention the persistence of racism. After all, the death of Eric Garner was videotaped, and look where that got us.
There has also been opposition among police. One proposal, in Miami, was rejected by police officers because it required cops to manually activate the camera’s data storage. The police union said that “if an officer hesitates for even a second in a life-threatening situation, it can cost that officer his or her life.” Miami-Dade’s mayor said the cops were playing politics.
Some police officers have worried that recording cameras will inhibit victims and witnesses from speaking freely to cops, particularly in cases of sexual abuse or assault. Just how confidential is that confidential information, when you can see it’s being recorded on a GoPro?
More mundanely, cops have expressed concerns that the recordings will be used for nitpicking petty abuses like uniform code violations, rather than investigating serious abuses. They’ve also complained that the camera is supposed to be on all the times, including down time and trips to the john—but then, the alternative of switch-on/switch-off leads to the safety concerns.
To be sure, much of this resistance is simply defensiveness—the head of Portland, Oregon’s police union, for example, put out a laundry list of complaints about body cameras that reads like a manifesto (“Body cams don’t substitute for officer’s reasonable beliefs and perceptions… Body cams shouldn’t be viewed as a measure of truth…”).
But much of the resistance is exactly what should happen in a public policy debate shaped by new technology. On the anti-camera side, there are strong conservative concerns about interfering with legitimate police work, and strong liberal concerns about invading people’s privacy. And on the pro-camera side, there are strong public safety concerns about the mistrust between cops and communities, and strong justice concerns about innocent people gunned down for Running Away While Black.
It’s not as simple, then, as Left vs. Right, since each side’s core values come down on both sides of the recording debate. The result is messy. As it should be.