WHO SHOULD OWN POLICE BODY CAMERA VIDEOS?

Author:Sacharoff, Laurent
 
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ABSTRACT

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deepseated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars in federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability--as helpful for gathering evidence against individuals in cases of resisting arrest, drug possession, vandalism, and so on.

This disturbing drift has undermined the promise of body camera programs in two ways: first, police control erodes accountability. Police control the videos themselves and resist disclosure, making it impossible for communities to hold them accountable for misconduct.

Second--the chief focus of this article--using these videos in ordinary law enforcement exacerbates the pernicious discovery asymmetry in the criminal justice system, affording police and prosecutors early access to these videos, but depriving defendants and their counsel of the very same evidence. Defendants once again find themselves pleading guilty or preparing for trial without access to the evidence against them or worse, evidence that might be exculpatory.

We therefore propose a solution: shift ownership and control of police body camera videos from police departments to a neutral police accountability agency. This move would solve both problems: first, this new agency would disclose videos to the public and the media, especially in high-profile cases, according to neutral rules calibrated to enhance accountability. Second, this agency would disclose these videos in ordinary criminal cases to both sides equally--affording criminal defendants timely access to crucial evidence, which will promote a more just, accurate, and efficient criminal justice system.

TABLE OF CONTENTS INTRODUCTION I. THE PROMISE OF ACCOUNTABILITY A. The Problem B. The Body-Camera Solution C. Accountability 1. Deterrence 2. Post-Hoc Evidence 3. Claims Against the Police 4. Reducing False Claims 5. Enhancing Democracy II. POLICE CONTROL OF BODY CAMERA PROGRAMS A. Procurement B. Use and Capture C. Access D. Prosecution III. BEYOND POLICE CONTROL A. Independent Agency B. Failures of Existing Police Review Boards C. Servers D. Procurement Decisions E. Configuration and Use IV. SYMMETRICAL ACCESS A. Defense Discovery B. Processing a Criminal Case 1. Body Camera Discovery C. Timely Defense Access D. An Argument for Timely Access 1. Exculpatory Evidence 2. Fourth Amendment and other Violations 3. Plea Bargaining 4. Defendant Access 5. Judges E. Objections 1. Objections from Prosecutors 2. Objections from Defendants F. Constitutional Constraints V. BALANCING TRANSPARENCY AGAINST OTHER INTERESTS A. Current Regime 1. Further Restrictions Particular to Body Cameras B. Transparency Versus Law Enforcement C. Transparency versus Privacy CONCLUSION INTRODUCTION

Imagine if police departments across the nation sought funding for a new program described as follows: "We propose a video surveillance program targeted toward heavily patrolled low-income neighborhoods of color in order to gather evidence of crimes such as drug possession, vandalism, and resisting arrest. We will primarily use this evidence to prosecute criminal cases against civilians--not police officers-- withholding it from defendants to encourage pleas, and allowing access only to those who take the risk of going to trial. The public and the media will rarely, if ever, gain access to these videos, and we will release them at our unilateral discretion; we will, of course, own and control all the footage." If this were the avowed purpose and description of a program, few would support it. Yet this is precisely how most police body camera programs are currently run.

Over the past few years, scores of major cities, regional hubs, and smaller towns have begun to deploy body cameras on their police officers to provide fuller evidence of the interactions between officers and civilians. (1) Nearly every large city plans eventually to use them--95% according to a recent survey. (2) Proponents argue that body cameras will keep officers accountable by deterring unlawful or abusive conduct (3) and reducing citizen complaints. (4) In 2014, then-President Obama promised $75 million for body camera programs, (5) and cities such as New York, (6) Baltimore, and Los Angeles have launched their own programs, (7) often in the face of allegations of police misconduct or abuse.

At the same time, body camera proponents separately pitched these programs to police departments as a tool of ordinary law enforcement, leading to their widespread adoption.

But in an often unremarked development, police have taken control of body camera programs and--most damaging--they have claimed sole ownership of the videos themselves. (8) They decide which system to buy; they determine how to configure those systems; they decide when and how to activate the cameras; they control who may have access to the videos and when; and they determine how long to keep the videos, and whether to destroy them. (9) Most policy makers assume such police control falls within the natural order of things. Why shouldn't police departments control the programs, own the videos, and control their disclosure?

We argue that police control threatens to undermine these body camera programs in their infancy. (10) First, police control erodes accountability, leaving body cameras to fulfill only their law enforcement function. Police control of body camera programs allows police to determine which interactions to record, which to reveal to the public, and which to destroy. (11) Police in cities such as Los Angeles, San Francisco, Washington D.C., Albuquerque, and Baton Rouge have turned off, blocked, failed to activate, or otherwise interfered with the recording of controversial and potentially unlawful police conduct. (12)

And where controversial, often fatal, encounters are recorded, time and again, police have resisted disclosing these videos, often in cases where doing so also helps them avoid accountability. They enjoy this power to conceal because in nearly every jurisdiction, laws, regulations, or police policy give them sole ownership and control of the videos. (13)

The shooting of teenager Laquan McDonald in Chicago in 2014 illustrates how police control of body camera video stymies accountability. When a Chicago police officer shot McDonald sixteen times, killing him, several dashboard cameras were rolling. (14) Police on the scene nevertheless claimed, falsely, that McDonald was lunging at them with a knife before he was killed, (15) apparently confident the videos would never be released. Indeed, the police department fought release until a court ordered their disclosure a year later. (16) Only then did the public learn the truth: McDonald was walking away from police when he was killed. (17) The day of the videos' release--but a year after prosecutors first viewed the videos--the authorities charged Officer Jason Van Dyke with first degree murder, making him the first Chicago police officer in decades to be charged with murder for an on-duty incident. (18) Police videos, and body cameras in particular, can help officer-community relations by promoting accountability, but not when police have unilateral control of the videos.

At the same time, police control of body camera videos creates a second problem. Police are increasingly using police and surveillance video in prosecuting ordinary criminal cases, (19) including misdemeanors such as resisting arrest (20) and more serious drug offenses. (21) The numbers reveal an uncomfortable truth: body camera videos are used far more often against ordinary citizens than the police. According to a recent survey of lead prosecutors, 92.6% report their office has used them against private citizens and only 8.3% against police officers. (22)

Use of video for ordinary criminal law enforcement is not itself the main problem. But police control of these videos means that criminal defendants do not have equal or timely access to these videos, thus exacerbating the pernicious discovery asymmetry already infecting the criminal justice system. (23)

The primary focus of this Article, therefore, is this more hidden development--police control of body camera video exacerbates the unfairness already deeply entrenched in the criminal justice system. Police and prosecutors leverage their control of body camera footage to pursue ordinary criminal cases. In these prosecutions, the government may withhold these videos from defendants until after a plea, after a suppression motion, and perhaps up to the eve of trial. For the 94% of state-level criminal defendants whose cases end in plea bargains, not trials, (24) they may never see the video evidence in their own case. This asymmetry merely adds to the long list of evidence to which police and prosecutors enjoy unilateral access, evidence often central to a criminal case. (25)

We say prosecutors "leverage" the videos and "withhold" them, but in reality, they simply treat the videos as another type of discovery, (26) another relevant piece of evidence that they do not have to disclose until well after first appearance, arraignment, bail argument, and even guilty plea. With some noteworthy, recent exceptions, such as Texas, (27) defendants are not entitled to receive police reports, witness statements, 911 calls, radio runs, lab reports, and other relevant evidence in a timely fashion--they very often plead guilty without ever having seen them. (28)

This asymmetry unfairly deprives defendants of timely, relevant...

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