Moral panics and body cameras.

• Author: Wasserman, Howard M.

1. INTRODUCTION

   Law often results from moral panic. Events occur that are perceived as a threat to the very fabric of society and lawmakers react, frequently with hastily created and ill-advised policy proposals designed to save society from an existential threat and touted to the public as doing so. (1) Laws in areas such as child sexual abuse, (2) child pornography, (3) fetal protection, (4) financial regulation, (5) and illegal drug use (6) have been criticized as overreactions to moral panics, often because the laws represent solutions that are unsuited or wildly disproportionate to the actual problem, although sold to the public as an easy cure-all.

   The tragic events in Ferguson, Missouri in August 2014, and the proposed responses, bear some hallmarks of moral panic. The shooting of Michael Brown, an unarmed African-American teen, by Officer Darren Wilson, a white Ferguson police officer, triggered weeks of protests cum massive police resistance cum riots that turned the city into a present-day Birmingham. (7) Clashes between demonstrators and police were captured on video, triggering conflicts over the First Amendment right of citizens to record police performing their official duties in public. (8) At the time of this Commentary's publication, state and federal officials are investigating events, (9) and prosecutions (10) and civil actions (11) of all stripes are contemplated or pending.

   But one significant policy suggestion has emerged from the controversy: equipping police officers with body cameras. If Ferguson officers had such cameras, the argument goes, we would know whether the Brown shooting was justified, and we would know whether Ferguson police overreacted to peaceful, constitutionally protected demonstrations or whether members of the public were engaged in violent rioting warranting forceful police response. (12) Body cameras also may function as a counterweight to increasingly ubiquitous citizen recording of police-citizen encounters. (13)

   It might seem odd to describe the body camera proposal as a hasty response to moral panic, on par with the rushed, ill-considered, and often unfounded prosecutions brought in response to bizarre tales of mass ritual child sexual abuse that we saw throughout the '80s and early '90s. (14) Expansive use of body cameras appears, on balance, to be good policy. It has overwhelming support from every stakeholder in the controversy--the public, (15) the White House, (16) federal legislators, (17) police officials, (18) police unions, (19) and the American Civil Liberties Union. (20)

   The problem, instead, is the rhetoric surrounding the proposals. Supporters promote body cameras as a panacea; they are spoken of as the singularly effective solution to the problem, able to prevent "another Ferguson." And the public perceives them as that comprehensive cure to the problem. Video tells us exactly what happened, entirely eliminates the he-said/he-said ambiguity that often characterizes police-citizen encounters, and deters misbehavior by police and citizens.

   Unfortunately, the reality is less certain. In so overstating the case, this rhetoric becomes indistinguishable from the rhetoric surrounding responses to past controversies that may be characterized as moral panics.

   This Commentary highlights the limits of body cameras and of video evidence generally. While body cameras are a good idea and police departments should be encouraged and supported in using them, it is nevertheless important not to see them as a magic bullet. The public discussion needs less absolute rhetoric and more open recognition of the limitations of this technology.

2. MORAL PANIC

   Sociologist Stanley Cohen defined moral panics:

   A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges or deteriorates and becomes more visible.... Sometimes the panic passes over and is forgotten ...; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way society conceives itself. (21) Moral panics often produce legal responses, whether in the form of punishment of the "deviants" whose behaviors threaten society or in the form of prospective policy changes designed to prevent recurrence of the deviant behavior.

   As one commentator describes the process from moral panic,

   [A]n incident or pattern catalyzes preexisting social anxiety and an ad hoc issues movement is born. The media fans the flames through sensationalist and reductionist news stories ... Usually, a hasty legal reform results from the panic. Driven as it is by irrationality, the reforms usually miss the point of the original problem and suffer from disproportionality. (22) These reforms often reflect broad consensus. As society's elites coalesce around the idea that some problem poses an existential threat to their values and interests and demands a response, they also coalesce around one bold quick-fix solution, endorsed as the comprehensive answer to the problem, even if that solution is rushed, not fully considered, and often ineffective. (23)

   Of course, it may be quite difficult to separate moral panic from legitimate response to serious wrongdoing. Often moral panic is recognized only in retrospect, when, with the benefit of time, policymakers either rethink past laws and punishments that were adopted in haste, or learn the lessons of history and respond to new events without the panicked search for quick fixes. (24) More importantly, perspective may matter. Where some observers see legitimate response to truthful allegations of large-scale wrongdoing, others see moral panic. (25) Like obscenity, there is an unfortunate "I know it when I see it" (26) quality to the concept.

3. BODY CAMERAS AS MORAL PANIC RESPONSE

   Do responses to the events in Ferguson, Missouri in August 2014--the shooting of Michael Brown, the widespread protests that followed, and the massive police resistance to those protests--reflect a moral panic? It may be too early to say, because we do not know how issues will be resolved in the courts or what policy will emerge from the entire controversy. At the time of this Commentary's publication, state and federal investigations, civil and criminal, remain ongoing--examining the original shooting of Brown, the subsequent protests and police responses to them, and general practices and policies of the Ferguson police. (27) Civil rights lawsuits by arrested protesters have been filed or are in the works. (28) Daily public protests continue more than three months after the initial events. And everyone is preparing for a new round of mass demonstrations and protests, and anticipating them turning violent, should a state grand jury decline to indict Wilson. (29)

   Ferguson became a flashpoint for broader concerns about police misconduct, unreasonable force, racial...