Police-worn body cameras: An antidote to the "Ferguson effect"?

• Author: Gonzales, Alberto R.

1. INTRODUCTION

   You are a police officer working the night shift in a major U.S. city. In the dark hours of the early morning, you come across a group of young males in a part of the city known for criminal activity. When they see your patrol car, the young men stop what they are doing and look away quickly. All of your training, as well as the instincts that you have developed over years patrolling these same streets, tells you to stop and at least attempt to start a conversation with the group to determine whether criminal activity is afoot and perhaps prevent it. There is, however, a nagging thought in the back of your head. Isn't it possible--or perhaps likely--that someone in the group or nearby will have a video device and record the encounter? What if the crowd attempts to provoke a confrontation and then records it? What if the recording is posted to the Internet or sent to the media? Should such thoughts temper your judgment in this situation? Would they make you hesitate to get out of the car? Would it make a difference to you if you knew that you were wearing a body camera--one that you controlled, that would record your view of the situation, with images that could not be disposed of or edited after the fact by someone intending to deprive viewers of necessary context?

   This Article explores the questions raised by this scenario, focusing on police-worn body cameras, the role these cameras may play in officer-citizen encounters, and the resolution of legal disputes that arise from such encounters. Part II discusses what role, if any, citizen-recorded videos and the effect they have on society play in the prevalence of crime--what has sometimes been called the "Ferguson effect." Part III explores the role police-worn body cameras could play in counteracting any such effect, addressing arguments in favor of body cameras and exploring their potential to encourage positive police and citizen behavior. Part IV then considers potential concerns about the use of body cameras, exploring arguments against their use and their potential to hinder police behavior. Finally, Part V offers conclusions and recommendations on the issue of police-worn body cameras.

2. THE "FERGUSON EFFECT"

   Police officer Darren Wilson shot and killed Michael Brown on August 9, 2014, in Ferguson, Missouri. (1) Although an investigation by the U.S. Department of Justice ("DOJ") later cleared Officer Wilson of federal wrongdoing in the shooting, (2) a parallel investigation by the civil Rights Division of the DOJ concluded that the City of Ferguson's law enforcement practices revealed a "pattern or practice of unlawful conduct." (3) Regardless, widespread rioting and looting occurred in Ferguson in the aftermath of the Brown shooting and again after a state grand jury's decision not to indict Officer Wilson. (4)

   In November 2014, three months after the shooting, St. Louis Police Chief Sam Dotson was interviewed regarding preparations for the upcoming announcement of the grand jury's decision. During the interview, Chief Dotson was apparently the first to use the phrase "Ferguson effect," (5) noting that "[i]t's the Ferguson effect.... I see it not only on the law enforcement side, but the criminal element is feeling empowered by the environment." (6) Chief Dotson did not clarify what he meant by "the environment." The comment, however, occurred during a discussion of a rise in assaults and robberies since the shooting, coupled with a drop in arrests, due at least in part to the fact that officers had been pulled away from their normal duties for specialized training in civil unrest. (7)

   The phrase "Ferguson effect" has subsequently evolved to have two distinct meanings. (8) One meaning--apparently the dominant one--is the "de-policing" interpretation. (9) Under this view, the "Ferguson effect" occurs when "highly publicized incidents of police use of deadly force against minority citizens, including but not limited to the Ferguson incident, cause[] police officers to disengage from their duties, particularly proactive tactics that prevent crime." (10) The second meaning, however, shifts the focus from police inaction to "chronic discontent" in the African-American community. (11) This explanation postulates that the effect occurs when longstanding grievances with policing in African-American communities are activated by controversial incidents. (12) When such incidents involve the use of force by police, they cause this chronic discontent to explode into violence. (13)

   The next significant use of the phrase occurred in May 2015, when columnist Heather Mac Donald used it in a Wall Street Journal op-ed entitled The New Nationwide Crime Wave (14) Mac Donald clearly adopted a "de-policing" interpretation of the term, reporting that when Chief Dotson used the phrase to describe the criminal element's empowerment, it was the result of cops "disengaging from discretionary enforcement activity." (15) Mac Donald noted that the first half of 2014, prior to the Ferguson incident, had continued a twenty-year pattern of declining crime. (16) After the Ferguson incident, however, the trend appeared to be reversing due to a demonization of law enforcement that was causing police to abandon the type of proactive policing that had been their most powerful weapon in reducing crime. (17) Mac Donald ended on this ominous note: "[U]nless the demonization of law enforcement ends, the liberating gains in urban safety over the past 20 years will be lost." (18)

   The first evidence that Mac Donald's dire predictions might be coming true on a national scale came in September 2015. A front-page article in the New York Times entitled Murder Rates Rising Sharply in Many U.S. Cities began: "Cities across the nation are seeing a startling rise in murders after years of declines ...." (19) The article noted that more than thirty cities had reported increases in violence from the preceding year. (20) Although mentioning the phrase "Ferguson effect," the article did not attempt to tie the rise to any one cause, merely noting that "[s]ome officials say intense national scrutiny of the use of force by the police has made officers less aggressive and emboldened criminals, though many experts dispute that theory." (21)

   Not long after the Times story appeared, U.S. Attorney General Loretta Lynch called a meeting of big city mayors and police chiefs in Washington, D.C. to discuss the issue. (22) It was at this meeting that FBI Director James Comey first publicly speculated that the rise in crime might be due to a reduction in police activity. (23) Director Comey expounded on this theory several days later in a speech at the University of Chicago Law School by attributing the rise to a "chill wind that has blown through American law enforcement over the last year." (24) Although acknowledging that his view was anecdotal and lacked data, Director Comey observed that lives are saved by "actual, honest-to-goodness, up-close 'What are you guys doing on this corner at 1 o'clock in the morning' policing" and that there will be consequences if this type of policing "drift[s] away from us in the age of viral videos." (25)

   Director Comey continued his assertion that de-policing was behind the rise in crime into 2016. In May of that year, after a private briefing on rising crime rates for the first quarter of the year, Director Comey observed that "a whole lot more people are dying this year than last year, and last year than the year before and I don't know why for sure." (26) Although rejecting the term "Ferguson effect," Director Comey said that he is continuing to hear that many police are pulling back from aggressive confrontations with the public due to viral videos and that this phenomenon could be an important factor in the rising crime rates. (27)

   Not everyone agreed with the FBI Director. President Obama countered Director Comey's speech, saying he saw no evidence that police officers were policing less aggressively, and Director Comey was cherry picking the data. (28) In response to Director Comey's later comments, White House Press Secretary Josh Earnest said, "[T]here's not evidence at this point to link that surge in violent crime to the so-called viral video effect, or the Ferguson effect." (29) The Brennan Center for Justice at NYU Law School took exception to both aspects of Director Comey's argument. First, in its analysis of the 2015 crime numbers, the Center took exception to the assertion that crime was rising. (30) Noting that "[t]here is no evidence of a deviation from the historically low levels of violence the country has been experiencing," the report's authors concluded that "murder rates vary widely from year to year, and there is little evidence of a national coming wave in violent crime." (31) Moreover, to the extent that homicides had increased nationally, the report's authors observed that more than half the increase occurred in three cities: Baltimore, Chicago, and Washington, D.C. (32) All three cities had falling populations, higher poverty rates, and higher unemployment than the national average, which the authors opined could contribute to the increase in homicides. (33)

   Richard Rosenfeld, a professor at the University of Missouri at St. Louis, was an early critic of the idea that the "Ferguson effect" exists. His belief was grounded in his research conducted on crime in the St. Louis area. (34)

   Because homicides began rising in St. Louis prior to the Michael Brown killing, Rosenfeld noted, "[O]ther factors may be in play." (35)

   Rosenfeld decided, however, to expand his research from just St. Louis to a national study. Funded by a grant from the DOJ's National Institute of Justice, Professor Rosenfeld studied nationwide data in an attempt to answer two questions: (1) did homicide rates increase nationally, and, if so, how significant and widespread was the increase; and (2) was the rise caused by hesitancy on the part of police to do...