QPP: Body Worn Cameras

This is a transcript of a 25-minute podcast that ran at Quality Policing. I wrote and produced the segment. Special thanks to Seth Stoughton, Peter Moskos, Steven Wasserman, Ben Singleton, Bill Flanagan, Roger Lee, Harlan Yu, and Rachel Levinson Waldman

Somewhere between a fifth and a half of US police are wearing body cameras. It’s hard to tell the exact number, but we know the number is rising. Body worn cameras are clipped to the uniform or the headgear of an officer, and they’re intended to capture the officer’s eye view of incidents.

Body cams have been held to be the most important solution to police transparency in America. Here’s South Carolina’s Republican U.S. Senator Tim Scott, speaking in 2015.

ACT: US SENATOR TIM SCOTT (R, SC): Today, I think I have found a solution that will help law enforcement officers and our citizens go home safe. That solution, Mr. President, are body worn cameras, to be worn by our law enforcement officers throughout this country.

And the videos from these cameras, now being captured at a rate of hundreds of thousands of hours a day, have been important. Last year in the American jurisdictions that have body cameras, video was used by nearly every prosecutor – nearly 93% of them in cases against civilian suspects. Know the percentage of those same prosecutors who used body camera video to prosecute cops?

Eight.

Almost all prosecutors are using the video to prosecute civilians. Almost none of them are using them for what we thought body cameras were there for.

If you think that means body cameras aren’t working, well, you’re wrong. The truth is, body cameras are working just fine. They’re just working differently from the way people expected they would.

That’s a really important disconnect, because if you’re concerned about how you’re policed – and who isn’t? – you’ve really got to know this stuff. But a lot of our national expectations on these things were formed listening to politicians who were looking to be seen as … doing something.

Senator Scott is a Republican, but this is a bipartisan issue. Here’s Secretary [Hillary] Clinton last year.

ACT: SECRETARY OF STATE HILLARY R. CLINTON: We should make sure every police department in the country has body cameras to record interactions between officers on patrol and suspects. That will improve transparency and accountability. It will help protect good people on both sides of the lens.

And the media ate it up.

ACT - MONTAGE Many departments are trying to figure out ways to increase transparency. One popular solution? Body mounted cameras.

Body cameras … billed as the ultimate transparency and protection against police encounters that go bad.

What’s ironic is that Senator Scott, Secretary Clinton, and a host of other officials, and the press, were scaling mount hype much more aggressively than even the companies that sell the cameras – which found themselves in the strange position of having to temper wildly enthusiastic expectations.

So for the next few minutes, we’re going to ask you to put aside everything you think you know about body cameras, and we’ll unpack this together.

Let’s start in the summer of 2014.

ACT - ARCHIVE AUDIO OF FERGUSON, MO: Hands up! Don’t shoot! Hands Up! Don’t shoot! FADE UNDER

It’s the summer of Michael Brown, of Eric Garner, of Black Lives Matter. The more we learned about police use of force, the more we – the nation, the national media – realized how little we knew about it.

ACT: FBI DIRECTOR JAMES COMEY: I think it’s embarrassing for those of us in government who care deeply about these issues, especially the use of force by law enforcement. And I cannot tell you how many people were shot by police in the United States last year or anything about the demographics, and that’s a very bad place to be.

We started asking ourselves with story after story after story in the news about cops shooting black men, how we could believe cops. In 2015, Walter Katz, the citizen oversight commissioner in San Jose, California, noticed that there were no cases brought against officers in incidents where there was no video, no matter how controversial the case was. And in 2014, there were a lot of controversial cases.

ACT - MONTAGE OF NEWS REPORTERS STATING NAMES OF THOSE WHO HAD DIED IN CONTROVERSIAL CASES, AND PROTESTS
FADE UNDER

Turning to many body cameras meant that now we could see what the cop saw, we could see the scene, and when the cop lied, the video would show it. Attorney General Eric Holder and President Obama moved swiftly to get cameras on as many officers as possible.

ACT: PRESIDENT BARACK OBAMA: I’m going to be proposing some new community policing initiatives that will significantly expand funding and training for local law enforcement, including up to 50,000 additional body worn cameras for law enforcement agencies.

And then … No reduction in officer involved shootings, no reduction in controversial incidents.

See, the main expectation was that when officers had these cameras on their chests, people would be more courteous and less likely to fight, and officers would be more courteous and less likely to behave badly.

That’s not what happened.

Even worse, there was never any evidence that it actually would happen. People just … hoped that it would.

Over the next couple of podcasts, we’ll look at the data behind the cameras, what they can help with and what they can’t, what we don’t know, and what we do.

One thing is very clear: body cameras are good for policing. I personally support them. I bought my first body camera with my own money in 2010. Body cameras provide lots of evidence that we’ve never had before about how cops and citizens behave during interactions. There’s a lot of promise, and body cameras do provide transparency.

What is transparent, though, is the question. Sure, we absolutely get to see more of when cops do bad things.

ACT: BALTIMORE NEWS REPORTER: For the second time in less than a month, video shows Baltimore police officers allegedly planting evidence. Newly released body camera footage apparently shows officers placing drugs in a car the alleged incident. FADE UNDER

But most of the time, the transparency body cameras bring is evidence of civilians committing crimes.

Secretary Clinton was right – cameras do protect good people on both sides of the lens. People simply presumed that it was the cops who weren’t good.

But the video is showing that, in fact, transparency cuts both ways.

Almost all prosecutors are using body worn video to prosecute civilians, and almost none of them are using them for what we thought body cameras were there for.

If you think that that means body cameras aren’t working well, you’re wrong.

The truth is, body cameras are working just fine. They’re just working differently from the way people expected that they would.

That’s a really important disconnect, because if you’re concerned about how you’re policed – and who isn’t? – you really got to know this stuff. Transparency cuts both ways, and the transparent fact body cameras have shown is that people, civilians, act like asses in front of them. And while confronting cops and the video catches a lot of it, cops are not keeping this a secret.

Here’s Commander Eric Low of the Lexington, Kentucky Police Department in 2016.

ACT: COMMANDER ERIC LOW, LEXINGTON, KY PD: The biggest thing we think we’re going to get out of body cameras is establishing transparency with the community to show them that we have confidence that our officers are doing the right thing every day.

If you’re a defense attorney, you get this. You’re probably more worried about how and when videos are made.

ACT: STEVEN WASSERMAN, LEGAL AID SOCIETY OF NY: The big problem, of course, is that the the police control the button.

That’s an important point from Steven Wasserman. If anyone other than cops gets to see this from the front row, it would be legal aid.

ACT: STEVEN WASSERMAN, LEGAL AID SOCIETY OF NY: I’m Steven Wasserman, I’m with the criminal practice at the Legal Aid Society and in the special litigation unit.

From the defense table, it’s less about whether cameras are being used to go after misbehaving cops. Prosecutors who are using body worn camera video use it to decide whether to prosecute, and in preparing the charges that they’ll bring.

If you’re imagining a courtroom with a jury watching, that’s not it. What the prosecutors mainly use the video for is to get a plea deal faster. There’s evidence that video reduces time from arrest to plea. But to Wasserman, this is nothing new.

ACT: STEVEN WASSERMAN, LEGAL AID SOCIETY OF NY: We’ve lived with video for many years. I mean, there’s many video cameras that capture incidents and crimes, and it certainly has helped in many instances to resolve matters that otherwise would have been very uncertain and and would have had to be litigated.

So how do body cameras shake out for the defense?

ACT: STEVEN WASSERMAN, LEGAL AID SOCIETY OF NY: It is a sort of a net liability to the defense. But the importance is, is to make sure that the recording is done in a way that approximates some kind of, of evenhandedness and objectivity.

Okay, so nothing new about video, and defense attorneys are very interested in how the cops record their clients.

But to really begin our descent from the summit of Mount Hype, let’s consider that the most common use of body worn camera video is … nothing.

ACT: PROFESSOR SETH STOUGHTON: The single biggest block of videos that I’m aware of right now at most agencies, for most officers, is just … sitting.

Because arrests are a small part of what police do. And most of the time, no evidence is needed in traffic cases. That’s Seth Stoughton.

ACT: PROFESSOR SETH STOUGHTON: I’m a law professor at the University of South Carolina School of Law, where I specialize in the regulation of policing.

So how often do videos just sit there?

Consider this

ACT: NEWS REPORTER: For more than eight months, police body cams at a northwest Suburban department mistakenly recorded all the time, even as officers were taking bathroom breaks involved in other non-essential police work. FADE UNDER

It took these cops almost nine months to realize that the cameras were always on. That doesn’t happen if you’re accessing the system all the time, you know … to check on stuff. This is the kind of thing that Wasserman was concerned about, but even that’s too technical to keep the attention of most people who just want a simple answer when is my police department going to get these cameras?

Instead, the questions citizens and even police agencies should ask is, what do we want these cameras to do?

And they haven’t been asking it.

How do I know? When most cops get cameras, they hate them. A year later, they love them. When civilians here, the cops have cameras, they love it. A year later, they hate it. That says that neither cops nor civilians understand what they’re getting into, and when they realize it, they change their minds.

ACT: PROFESSOR SETH STOUGHTON: Everyone is coming to the body camera question with a totally different take on what these tools are going to be used for. The community thinks, hey, you got this for officer accountability reasons, but all you’re using it for is to prosecute people. I think that has the potential to be taken as a failure, a betrayal.

So if that’s a failure, how do you even measure success?

In 2016, Rachel Levinson Waldman of the Brennan Center and I wrote a USA today article in which we warned that if agencies didn’t declare what they wanted cameras to do, there was no way to know whether they were doing it.

Civil rights groups want to make sure there are hard and fast rules around when cameras roll, and for how long. They’re also pretty intensely interested in how those videos influence reports.

Civil liberties groups believe that police have the advantage when it comes to body worn cameras, not just because officers control the record button, but the playback button as well. Regardless of whether there’s video of an incident, as we all know from cop shows, officers have to write reports about everything they do. These reports contain lots of tick-box items and often most important, a narrative.

Perhaps the biggest policy related controversy around body cameras is over something that sounds simple: Should officers be able to view the body camera video of the event they’re writing about before they write their report? Or should they be required to write their report, then be allowed to watch the video, then be permitted to write a supplement in case they see something in the video that contradicted something that they wrote about the incident?

Proponents of this latter option, which is often called Write-Watch-Supplement, say that it provides the most fair option for everyone. They fear that cops who watch a video and then write reports can unintentionally or intentionally modify what they write to match the video, as opposed to memorializing their own recollection of the incident.

Cops think this is just a game of ‘Gotcha’, and point out that neither the video nor the officer’s memories are perfect recollection tools.

Few people have looked at these issues as closely as Harlan Yu, at Upturn.

ACT: HARLAN YU, UPTURN: Upturn is a nonprofit based in Washington, D.C., and we study technology’s impact on civil rights and social justice issues.

Yu believes that poor policies governing the use of body cameras in the video they produce, from access by the public to use by officers and prosecutors, strongly favor the police and the state in the illusion of accuracy. In a November 2017 report, Upturn argues that the lack of policy requiring Write-Watch-Supplement is maybe the single biggest barrier to justice with body cameras.

ACT: HARLAN YU, UPTURN: If body worn cameras have any chance of holding police accountable for misconduct, having officers be able to watch footage before writing the report just makes it much easier for them yf they were to try to push a false frame or a false narrative, to act for the camera and to do so.

Yu also points out that the police select and buy the cameras, thus giving police the advantage.

ACT: HARLAN YU, UPTURN: Body worn cameras are purchased by police departments. The money comes from the police and officers operate the cameras. If you just think about the incentives that departments and officers have, it’s no surprise how camera footage is being used.

But there are a couple of real problems with these viewpoints. Most obviously, cops didn’t wake up one morning and say, ‘Golly, I’ve got no money in my budget, so I think I’m going to go out and buy some body cameras.’ We need to remember why these agencies were buying up body cameras like Beanie Babies. They were pressured intensely by politicians and by civil liberties groups to get the cameras.

ACT: SECRETARY OF STATE HILLARY R. CLINTON: We should make sure every police department in the country has body cameras to record interactions between officers on patrol and suspects.

Even Secretary Clinton’s comment there reveals a fundamental misunderstanding of what cameras are for. By singling out officers on patrol and suspects, it’s clear she’s both monumentally underestimating the population affected by cameras, which also includes passersby, crime victims, 911 callers, informants and other completely unrelated people, and loudly demanding that every officer has a camera.

This was prototypical politician: a clearly stated demand for a muddy and amorphous solution.

I won’t group all civil liberties groups together. Some, like upturn, never advocated for cameras, but to cops it sounds as if now civil libertarians are saying that cameras are problematic because the police bought them when, as a group, the police manifestly didn’t want to buy them in the first place.

That’s not his point.

Harlan’s point – which Steven Wasserman made separately – is, no matter how we got here, here we are. Police control the record and play buttons. And since they are the government, we can’t just well, hope that they control them fairly.

Like everything with body cameras, this is nuanced and unexpected.

Second, with Write-Watch-Supplement versus Watch-Write, I’ve personally come to believe that Write-Watch-Supplement is ultimately better for cops. There are some really complicated but good reasons that come down to Graham versus Connor issues, and proof of officer integrity and credibility in the face of protest.

But I don’t believe that Watch-Write is inherently dishonest. It’s worth noting that there has not been a single case of cops getting caught engaging in this kind of skullduggery, and also that a recent study compared officer narratives to what was seen on body video, and they found that cop’s descriptions of what happened, most of the time, are pretty darned accurate. That study was funded by a camera maker, and three of the five scientists involved in the study declared financial interests in that firm, but they declared their conflicts properly, and the methodology looks sound. There’s another study being worked on right now that isn’t conflicted. It’ll be released soon, and it has generally confirmed the earlier findings and expanded on them.

Harlan Yu and I both do believe that policies about access should be fairer to level the playing field. For example, if I complain about a cop, I should be able to get access to the video of the incident. Policy is very important, and it requires conversation and compromise, but I don’t believe that policy will fix the inherent fact that the transparency brought by body camera video in fact, shows us much more terrible behavior by civilians than cops, because that’s actually the transparent truth. You know who agrees with me? Harlan Yu.

Here’s part of our Skype conversation.

ACT: NICK SELBY (ON SKYPE CALL): I do think, though, that even if you had every one of your policy wet dreams come true, the bulk of body worn video footage would be to prosecute civilians.

ACT: HARLAN YU (ON SKYPE CALL): I mean, that’s probably still true.

Now, that doesn’t negate Yu’s points about the need for good policy to level the playing field. Even if I disagree with him, he holds important and well articulated viewpoints to give his argument the weight it deserves. I’ll point to the release by police departments of videos that make their officers look good. I understand the motivation. Police chiefs are sick of their cops being falsely accused.

Here’s a great example.

ACT - AUDIO FROM BODY WORN VIDEO FOOTAGE – MALE OFFICER VOICE: Stop resisting.
FEMALE VOICE: They’re attacking me.
MALE OFFICER VOICE: Stop resisting.
FEMALE VOICE: Let me GO!!

The girl in this video was behaving like a spoiled little debutante, and ended up arrested after kicking the world’s most patient cop. Then she complained on Facebook that the police treated her badly. So the chief released the video.

But if the chief can release that video, what’s the precedent for him releasing other videos? Why won’t other agencies release video that doesn’t show the cops acting so well?

My main point is that there are many, many, many, many more videos in which civilians act badly and cops behave well. But society cares more about the incidents in which cops behave badly than it does about when civilians behave badly. With 18,000 different policies about when video gets released, calling for better and more consistent policy is understandable.

Intense public scrutiny of law enforcement always comes in cycles. In the 1990s, there were three important changes introduced to policing based on these cycles. All of them were new technologies billed as the solution to a different problem. Two were based on use of force pepper spray and Taser, which together would end the excessive use of force problem. The third was dash cams.

Starting in the early 1990s, dash cams video cameras mounted in the windows of police cars were seen as the solution to several pressing issues. The first was DWI arrests. The cop would describe a drunken bum of a driver slobbering and falling, and in court there sat the defendant, dressed like a banker and sober as a judge.

In part two, we met Professor Seth Stoughton.

ACT: PROFESSOR SETH STOUGHTON: I’m a law professor at the University of South Carolina School of Law, where I specialize in the regulation of policing.

Here he is talking about the first wave of dash cams in America.

ACT: PROFESSOR SETH STOUGHTON: Mothers Against Drunk Driving started to provide a bunch of grants for agencies to get these dash cameras, because they were supposed to be the solution to drunk driving acquittals. Madd hoped that video would solve this problem.

ACT: DRUNK IN THE BACK OF A POLICE CAR SINGING QUEEN “BOHEMIAN RHAPSODY”: Mama just killed a man… FADE UNDER

I can tell you from experience, you get somebody this obviously totzed on a dash video a lot less often than you’d hoped, so dash cam videos helped, especially when the driver is stinking drunk. But they didn’t solve the problem of DUI acquittals.

ACT: PROFESSOR SETH STOUGHTON: In the mid 90s, the DEA got into the business of funding dash cameras, providing a bunch of grants because of the issue of consent.

Consent was an issue because cops on the highway were pulling in guys with five, ten, £20 of dope. And after a while, the judges stopped believing that somebody hauling that much dope would consent to a search.

The judges were wrong. You wouldn’t believe the stupid crap dope runners will do. And yes, I’ve had people consent to searches of their car while they were carrying dope.

Still,

ACT: PRESIDENT RICHARD M. NIXON: public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new all out offensive.

After 46 years of the war on drugs. My friends who specialize in interdiction have it happen to them every day. This is my friend Ben Singleton, a detective in a city about halfway between Dallas and Fort Worth. He spent years of nights looking for and finding drugs in cars. Here’s a story about one of them.

ACT: DETECTIVE BEN SINGLETON: That’s great. Um, would you mind if I searched your car? Would you give me consent? And he said, well, I don’t have any drugs. I just told you and I don’t have anything to hide. And I said, oh, that’s great. So will you give me consent to search your car? And he said, yes, sir. And as he stepped out of the car, he said, my drugs are in my backpack. I have speed in that backpack. And I said, how much do you have? And he said, a lot. So I pulled the backpack out. It was one of the biggest seizures I’ve ever made. Um, multiple pounds of methamphetamine in a backpack. If he would have said no, I never would have found it. He would have been on his way and delivered his drugs to wherever he was taking them.

In the police academy I watched video after video of this guy named Fletcher, who would sit on the highway for two or three hours watching cars go by and then be like, “that one.” He’d pull the car over. He had this whole Columbo thing going. He’d be like, charming and bumbling and pleasant and polite. And at one point he’d asked for permission to search. He always found the dope, and in all these cases, his mind bends all of them. They always look shocked when we find the dope.

ACT: PROFESSOR SETH STOUGHTON: And they were supposed to be the solution to the consent problem.

Dash cams were not the solution to the consent problem.

ACT: PROFESSOR SETH STOUGHTON: And then came 1999 and 2000, where we had high profile incidents of racial profiling …

And studies that showed pretty heinous racial profiling by police on traffic stops in places like new Jersey, South Carolina, the Florida.

ACT: PROFESSOR SETH STOUGHTON: And that’s when the Department of Justice started to provide some fairly significant grants, because dash cameras were supposed to be the solution to the problem of racial profiling.

If you’re starting to see a pattern here, it’s because there is one. Last time I checked, people still believe that there is racial profiling in America, even though 70% of the police cars in the country have dash cams. Don’t get me wrong, dash cams are great technology and I think we need them.

But they follow the pattern. Every few years a big problem comes along and it garners all the attention, all the breathless media coverage. Politicians wring their hands and look concerned. There are calls to do something, and the something is often technology. Like backscatter machines in airports. You remember them, right? How they were going to solve the problem of people bringing weapons onto airplanes?

ACT: REPORTER: An undercover operation revealed TSA screening at airports fails most of the time. Investigators found that screeners missed tests, weapons and bombs at baggage checkpoints. More often than not.

In October of this year, the biggest ever randomized study of body cameras showed no measurable reduction in complaints or use of force by officers in Washington, D.C.. Does that mean cameras are bad? I bought my first body cam in 2010 with $700 of my own money. I bought it so that I would have evidence in case anybody ever said I did something wrong. It succeeded literally on the first day I wore it. A woman I’d never seen before said that I was racially profiling her, that I kept pulling her over, that she’d complained about me and she would do it again.

ACT: BODY CAM VIDEO: FEMALE DRIVER: That’s what I reported you the last time….
OFFICER NICK SELBY: You’re receiving one citation today.
FEMALE DRIVER: I’m not signing nothing, OK? I’m not signing nothing, this is the second time and I reported you before, and I’ma report you again.
OFFICER NICK SELBY: Okay. I’m Officer Selby, Officer 892, you’re well within your rights to come in.

The records, not just the video, all backed me up. And as you heard, I was reasonably polite. Body cameras aren’t bad. They have the potential for abuse in selective or worse, pervasive recording. But we’re not there yet. In part two, we met defense attorney Steven Wasserman.

ACT: STEVEN WASSERMAN, LEGAL AID SOCIETY OF NY: I’m with the criminal practice at the Legal Aid Society and in the Special Litigation Unit.

Steven thinks we need to be vigilant. We’re not in a place yet where government surveillance is pervasive, but we are absolutely on the road to it. I don’t get the heebie jeebies about cameras, like many on the defense or civil liberties side of the fence, but I am sure that many people haven’t thought about what they were screaming that we had to get or else.

And that bothers me.

Before we invest in any technology, we need to ask the right questions. What do we want to accomplish as a police department for our community, and what is the best way to accomplish it? What are our current capabilities? What do we want to accomplish, and what’s the delta between those two things?

And what’s the best technology to fill that gap and best integrate with the technologies we already have, the technologies into which we’ve already invested taxpayer dollars. In many agencies.

None of that happened with body cameras.

Many agencies actually don’t begin their process by considering carefully their needs. Instead, they ask friends at other police departments whether they can borrow their policy as a starting point, and then they hack it up.

That’s about as sensible as taking your friend’s high blood pressure medication for your bad back. The idea that your friend’s problems are the same as yours is ridiculous in the worst cases.

Agencies crib copies of their body camera use policy from the vendors that sell the cameras, who provide them in the name of ‘best practices’. That is like asking the bartender how much you should drink tonight and whether you should get well-drinks or top-shelf booze.

In the face of evidence showing that body cameras record but don’t change behavior on either side of the lens, judges and politicians still say they can change behavior. Here’s Steven Wasserman talking about the early days of cameras in New York City.

ACT: STEVEN WASSERMAN, LEGAL AID SOCIETY OF NY: And the judge that ordered it in New York did so in the hope that it would make everybody behave better.

So once again, we’re letting Hope drive technology purchase and roll out training procedure and policy. When we let politicians and activists tell us that all we need is some box to solve our problems, we abdicate responsibility for our technological destiny.

We met Harlan Yu, who runs upturn.

ACT: HARLAN YU, UPTURN: Upturn is a nonprofit based in Washington, D.C., and we study technology’s impact on civil rights and social justice issues.

Upturn believes that policies are responsible for how cameras are used, and the policies in place now have moved. The goal posts in the.

ACT: HARLAN YU, UPTURN: Communities that I work in, a lot of people see body worn cameras as systems of surveillance, not as tools for accountability.

Again, I support body cameras, but I’m aware that their deployment raises significant privacy implications. By demanding video cameras on every officer.

In a few years time, we’re going to have 800,000 people with body cameras. How those cameras get operated when they’re turned on, what the video is used for, none of this is clear.

If we don’t want a surveillance state, we really need to start paying attention to how these technologies are being used. And I mean actually used in real life, not as used in a stump speech or analyzed on the Young Turks or by some guy on CNN.

Whether you completely trust or completely distrust the cops, we’re hanging cameras on 800,000 people. That puts us on the road to a place that many people might have some issues with. If we don’t have some real conversations, some real specific conversations, we could find ourselves someplace we don’t want to be. That means Americans have to stop communicating in soundbites, stop throwing talking points at one another, and start actually listening to one another.

I think whether we go there or whether we take a different direction is still up to us.


So what do you think? We’re on the web at Quality policing.com on Twitter. We’re at Quality Policing. Or you can call and leave us a message at [number redacted]. We choose the best comments and questions to play and discuss on our show, but we will never reveal personal details left by cops, prosecutors or defense attorneys to any third party. And we won’t reveal your identity on the air.