Testimony Regarding the Risks and Promises of Police Body-Worn Cameras

Written testimony of the New York Civil Liberties Union given by Johanna E. Miller, Advocacy Director. Submitted to the New York State Assembly Committee on Codes on December 8, 2015 The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony regarding the risks and promises of police body-worn cameras. The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across New York State and 50,000 members and supporters. Our mission is to defend and promote the fundamental principles, rights, and values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. A key component of the NYCLU's work is to promote transparency and accountability for police departments. In this role, we have advocated for the establishment of civilian complaint and officer discipline mechanisms that are accessible, transparent, and effective in holding police accountable for their actions. We have worked to ensure police department policies and data about police activities are publicly available. We have represented individual clients and experienced firsthand how difficult it is to achieve accountability for officer misconduct, particularly in cases where the only evidence is one person’s word against an officer’s. We are hopeful that police body-worn cameras (BWCs) are a step in the direction of reforming police practices, furthering transparency and accountability, and making street policing safer and more just for both officers and the public. It has been suggested that knowing a BWC is in use can actually improve the behavior of police and civilians in street encounters.ⁱ  If evidence indicates this effect is real, investment in BWCs could represent enormous progress in improving community-police relations and officer accountability. If they can also be used to achieve meaningful accountability for abuse by police officers without undue infringement on privacy rights, they will be one of the most valuable reform steps we can take. Many important questions remain, however, and in the rush to adopt new technology, police departments are overlooking important issues. In 2014, the Department of Justice (DOJ) and Police Executive Research Forum found that 63 of 500 surveyed police departments were either using or testing BWCs, but only one-third of those departments had written policies regarding their use.ⁱⁱ The New York Police Department (NYPD), the largest municipal police force in the country, has announced a BWC program; it remains to be seen how NYPD will use the experience of its pilot program and what regulations will govern BWCs now and in the future. We hope the state will use grant programs, transparency and privacy standards, and best practice guidelines to encourage police departments to adopt sensible and enforceable policies for the use of BWCs. To that end, we have the following recommendations. 1. Ensure BWC programs are designed to maximize officer accountability The single biggest threat to the effectiveness of BWCs in reducing police misconduct is the enormous level of control officers and departments have on the devices and the information captured. In order to have a positive impact on police-community relations, BWC programs must be designed to maximize officer accountability, public accessibility, and third-party oversight. At the most basic level, cameras must be on and recording during all law enforcement encounters, except where an individual’s privacy is a paramount concern (as described in section 4). Efforts must be made to minimize opportunities for officer interference with cameras and to ensure footage cannot be manipulated or deleted improperly. This can be achieved through creating default rules for operating the camera and serious consequences for failing to do so. In order to counter officers’ powerful motivation to not record when they behave improperly, department disciplinary rules should create a presumption against the officer for failing to record an interaction when required to do so (rebuttable through evidence of mechanical malfunction). Officers who fail to produce recordings of interactions that are under investigation on multiple occasions should face serious consequences, including suspension and termination. In court proceedings, a presumption against the officer’s version of events could be employed to encourage recording of interactions.ⁱⁱⁱ  Departments must retain footage for the amount of time necessary to ensure it is available as evidence in related criminal and civil cases, complaints against officers, or other accountability proceedings (though not indefinitely; this point is discussed below). It is vital that footage not be destroyed or misplaced before it can be used. The period of time for which footage is retained may need to change based on the type of information recorded; for example, the statute of limitations in New York for filing a federal civil rights claim is three years. For prosecuting a murder, however, there is no statute of limitations. Footage that records no law enforcement interaction with the public will need to be destroyed quickly, to protect privacy and for practical reasons. This complexity requires departments to develop means of identifying and organizing recordings that capture different types of interactions, a level of data management that most departments are probably ill-equipped to implement. We hope the state will take note of this complexity and create standards, or at least guidelines, to assist departments in managing this information. 2. Protect against privacy intrusions. We are acutely aware of the need to balance the promise of BWCs with the protection of New Yorkers’ privacy rights. We recognize the risk that BWCs could be used to gather surveillance of innocent people, that footage of street stops could be used to create a database of “usual suspects,” or that recordings of people in sensitive situations could be used to coerce cooperation with law enforcement. In conjunction with recently-announced “predictive policing” technologies, BWC footage could be used to create a total police state. Enforceable privacy protections are therefore essential to the success of this program. The state must not trust the NYPD to police itself in this area. Indeed, the history of the NYPD is flush with examples of unjust privacy intrusions, from spying inside mosques to creating a database of innocent people as part of the Stop and Frisk program. BWCs can record inside a home, hospital room, restroom, and any other sensitive location where a police officer enters. They can record nearly any type of interaction, from interviews with sexual assault victims to officers blowing off steam with their colleagues. Rather than creating rules to navigate the entire landscape of situations where privacy could be an issue, we recommend three mechanisms for governing BWC use that we believe can greatly reduce the potential for privacy intrusions:

1. BWCs should only be used to record police interactions with the public that have an investigative or law enforcement purpose, not casual interactions or mere observations. Community members need to be able to trust that they can speak to officers privately. This requires that individual officers retain the ability to de-activate the camera, making it even more important that departments establish effective means of ensuring officers record when they should.
2. Members of the public must be on notice that they are being recorded, through visual cues or the officer’s explanation (with considerations for the visually impaired and people who do not read or speak English).
3. Absent exigent circumstances, such as a police raid or execution of a warrant, people should be able to refuse consent to be recorded.

Regarding stored recordings, we recommend a requirement of blurring of faces and identifiable characteristics such as tattoos when a recording is to be used for a purpose other than officer discipline proceedings or a civil or criminal case, for example if the footage is requested through open records laws. 3. BWC’s must be part of a larger transparency and accountability system. BWC’s are only one tool, and outside the context of a just, effective, and transparent officer discipline system, they will fail to make a difference in community-police relations. In fact, if video evidence exists and the system still fails to achieve accountability, community faith in law enforcement will continue to erode. Without a fair, transparent, and independent way to hold officers accountable for misconduct, video evidence will add little to the status quo. We recommend, therefore, that the Assembly explore ways to enhance officer accountability mechanisms across the state. For example, police chiefs should no longer have the sole authority to determine whether an officer is disciplined as the result of a complaint. In addition, police departments should be required to maintain early warning systems that track complaints to identify officers with a pattern of misconduct. Existing complaint mechanisms, both internal and civilian, can be made more transparent, more accessible, and more consequential. Finally, we support grand jury reform and a permanent independent prosecutor in cases where a police officer causes the death of a person in custody. The Assembly should also consider how BWCs can support existing or emerging accountability mechanisms by providing access to evidence of misconduct. For example, the NYCLU is supporting legislation in New York City that would create an informed consent standard for searches that are not based on probable cause or an exception to the warrant requirement.^iv We believe this law would limit coercive searches that take place when people don’t know they have the right to refuse, or when officers simply commence a search and the absence of vocal protest takes the place of true consent. This informed consent law, versions of which are on the books in several states,^v is immensely more practical where consent can be recorded by a BWC, providing objective proof that a person understands his right to refuse a search and is waiving that right. 4. Fund pilot programs with rigorously-designed evaluations. Much of the available literature on BWCs originates from the policing sector, which naturally frames the issues through an enforcement lens. This limited literature has become redundant and self-referential, repeatedly citing Rialto, California, or Mesa, Arizona as authoritative sources of “data.” While the lessons from those departments may be of use, we are concerned that they are viewed as reliable qualitative research when in fact they are anecdotal experiences. Answering the most basic question about BWCs—whether their use has a measurable impact on officer or civilian behavior—requires sophisticated social science research. The findings of such a study would be invaluable in informing decisions about adopting BWC programs, but no literature like that currently exists. Other areas where practical research is needed to inform policy include when and how to activate the cameras for maximum impact and minimum invasion of privacy, and the most effective training programs for officers. Because of the lack of authoritative information regarding the effects and best use of BWCs, we recommend the state fund rigorously designed pilot programs to gather reliable empirical information. The results and recommendations from these studies should be published widely, and used to inform policy guidelines. 5. Conclusion The growing use of BWCs has the potential to greatly improve accountability of police officers to the communities they serve. Early evidence even indicates a potential self-correcting effect when people know they are being filmed. But the rapid ascension of this technology means many complicated issues are going unaddressed. It is essential to bring thoughtful discourse, rigorous research, and best practices guidance to the use of BWCs—something the state government is well-positioned to provide. Without the right policies in place, BWCs will fail to improve police behavior or hold officers accountable, and could themselves become tools of abuse. However, if informed by research and governed by the right policies, BWCs can have a vital positive impact on police-community relations. Footnotes i OFFICE OF COMMUNITY ORIENTED POLICING SERVICES, DEPARTMENT OF JUSTICE & POLICE EXECUTIVE RESEARCH FORUM, IMPLEMENTING A BODY-WORN CAMERA PROGRAM: RECOMMENDATIONS AND LESSONS LEARNED (2014), at 2 available at http://www.justice.gov/iso/opa/resources/472014912134715246869.pdf. ii Id. at 6. iii See JAY STANLEY, AMERICAN CIVIL LIBERTIES UNION, POLICE BODY-MOUNTED CAMERAS: WITH RIGHT POLICIES IN PLACE, A WIN FOR ALL (2013), at 3. Available at https://www.aclu.org/files/assets/police_body-mounted_cameras.pdf. iv Int. 0541, N.Y. City Council (2014). v Colo Rev. Stat. § 16-3-310 (2010), W. Va. Code § 62-1A-10 (2010), Ark. R. Crim. P. Rule 11.1 (2005)