In View Commentary: Releasing BWC Video to the Public: Policy Implications
In April 2018, the Los Angeles Police Department (LAPD) and its civilian-member Board of Police Commissioners made a major change to its body-worn camera (BWC) policy: the department will release video footage in ”critical incidents.”
A year in the making, the new policy applies to: 1) officer-involved shootings, 2) a use of force leading to death or serious injury, 3) all in-custody deaths, and 4) any other police encounter for which releasing the video is in the public interest. The department will release footage within 45 days of the incident. The policy includes protections for juveniles and victims of specific crimes, defines privacy considerations, takes into account the safety of officers and witnesses, and protects the integrity of active investigations, confidential sources, and constitutional rights of the accused.
The draft policy can be found here. LAPD has released critical incident BWC footage under this new policy. An article regarding this footage can be found here.
What are the ramifications for the LAPD and for the rest of the country with this shift in policy? Will it create problems for ongoing investigations? Will it improve the perception of transparency and accountability? Does it violate the right to privacy? Does the policy go far enough—or too far? How will we know if it is effective? Definitive answers to these questions will not be known for some time, but the questions are important to the police, the public, and policies that are being drawn up and followed throughout the country.
Will the release of video footage create problems for on-going investigations?
It is possible that the release of footage could create problems for investigations, but not to the degree that police think. The release of information to the public about a critical event often raises concerns because police and prosecutors fear a “trial in the media” or fear that people will be biased against a suspect or an officer and thus make it difficult to seat a fair and impartial jury, but these fears do not always manifest themselves and are hard to quantify. In a courtroom setting (if a case is filed), voir dire allows for questioning of potential jurors about their biases and preconceptions.
Further, video footage is only one facet of an investigation of an officer-involved shooting or other critical event. Many other parts of the investigations need not be released. For example, the department may be informed more by eyewitnesses and statements from bystanders and the officers involved, there might be more extensive physical evidence, and there could be other factors in an incident that remain closed to the public.
Video footage may not—and probably will not—tell the full story of a critical event. The camera does not see everything that an officer sees. The location of the camera (on the officer's chest, shoulder, or sunglasses), and the officer’s position during an event, determine what the camera will capture. People, houses, or vehicles to the left or to the right of an officer may not be videotaped because the officer did not turn in that direction. The lighting could be poor; the sound could be inaudible. Thus, other evidence provides important context for what happened and why.
Will it improve the perception of transparency and accountability?
It should, because it addresses critical incidents—those that the public has the most concerns about. The impetus for equipping police officers with BWCs burgeoned following the tragic events of Michael Brown’s death in Ferguson, Missouri, on August 9, 2014. At the time, BWCs were touted as the means to promote greater transparency and a basis for building trust between the police and the community. This rationale created expectations that police departments would release BWC footage immediately after a critical event, such as an officer-involved shooting.
But we soon learned that it is not quite that simple. There are implications relative to public interest versus the judicial process of adjudicating an incident, all of which are surrounded by the need for privacy considerations and the need to solve cases. Prosecutors and the police were wedded to the notion that if there is a pending criminal investigation, all bets were off relating to the release of what was considered evidentiary material, but this perspective has changed. Police agencies and officers are more accustomed to using cameras and reviewing footage after making arrests. Further, they are seeing the positive results of the presence of cameras as civilian complaints and uses of force decline.
The release of footage for critical incidents appears to be a part of the evolution of the acceptance of BWCs and, more importantly, suggests that transparency and accountability are perhaps more important than evidentiary considerations. San Diego Deputy District Attorney Damon Mosler provides a prosecutor’s perspective on the evidentiary value of BWC footage in a separate In View Commentary.
Does the policy violate the right to privacy?
It appears that the answer is ”no,”’ as the policy protects individuals including officers, bystanders, and witnesses. There should always be certain protections afforded to the individuals involved, including the officer and his or her family, the victims or survivors of a police incident, those who are willing to come forward as witnesses, and those who are inadvertently involved. Technology that effectively redacts video and audio, while not perfect, is available and can protect individuals. By limiting the release of footage to critical incidents, rather than all encounters, the need to redact every frame for every incident is not an issue. The chances of a person being identified through voice or sight are considerably reduced.
Does the policy go far enough—or too far?
To some, the policy does not go far enough. To others, it goes too far. Some advocates want all video footage released regardless of its importance or value. The argument here is for total transparency, granting the public the ability to hear, see, and assess the behavior of all police officers in every encounter. Others strongly hold to the belief that investigations and privacy should not be compromised or outbalanced by transparency and accountability; releasing video will lead to cases “lost” and privacy diminished.
Releasing all video places massive burdens cities and police departments. The technology supporting review, redaction, and release of video has not caught up with the proliferation of videos; as a result, reviewing, redacting, and releasing all footage is an extremely labor-intensive and costly enterprise that has not been accounted for in the staffing and budgeting patterns that support BWCs. Consider that at a single critical event, 50 or more videos may be recorded and would need to be addressed.
How will we know about the effectiveness of the policy?
Effectiveness is measured in terms of implementation and impact, and through rigorous research. While protocols for implementation have not yet been written, this step is critical. We will see what happens as the LAPD rolls out an implementation plan.
“Upon further review…”
Of the five largest police departments in the country, the LAPD is the first to lay out specific guidelines for releasing video footage for critical events. The policy reads: "It is the policy of the Los Angeles Police Department that video evidence in the Department's possession of critical incidents involving LAPD officers be released to the public within 45 days of the incident."
When we compared LAPD's policy to those of the New York, Chicago, Philadelphia and Houston police departments, we found that the LAPD policy goes further in defining critical incidents, video sources, privacy protections, notifications of persons who are in the video, and date of release. In the largest departments—New York and Chicago—release of video footage is dependent upon the type of incident and Freedom of Information Act requirements (New York) or state law (Chicago). In both jurisdictions, individuals may request footage, but there are specific requirements for obtaining the footage. In a high-profile case, the New York Police Department and Attorney General will confer about its release, but there is no mandate for release of video footage. The Brennan Center shows the breadth of policies regarding the release of video.
The LAPD policy could serve as a model for other large agencies, but its ramifications need to be carefully studied. Answering these empirical questions would significantly further our understanding of transparency, accountability, and privacy.
Agencies seeking to implement BWCs should hold multiple meetings with the community to leverage partners such as the NAACP, ACLU, and victims’ advocates. BWC PIP agencies note the importance of seeking input from the community in the policy development phase and being transparent about each phase of the deployment process. Some agencies have tried various methods (e.g., postcards, online surveys, town hall meetings) to inform, engage, and gather input from their communities.
