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Why can’t these 3 police body camera bills find enough common ground?
 
By Tad Vezner | [email protected]
March 4, 2016

The next police officer you meet could soon be capturing you on video, and state lawmakers are feeling real pressure to come up with legislation on how they’ll be able to record, and who can see it.

Three very different “body camera” bills are all but certain to be debated at the Legislature this year, but their sponsors — at least two of which represent dug-in interests — say they’re a far cry from consensus. This despite the fact that some law enforcement agencies say they’re uncomfortable giving the technology a try without state guidance.

“Knowing that Rep. (Peggy) Scott isn’t going to pass what she considers a bad bill through her committee and I’m not going to pass it through mine … is the whole world going to fall apart if we don’t have a bill?” Rep. Tony Cornish, R-Vernon Center, asked during a hearing on body cameras last December.

The answer to the chair of the House Public Safety Committee appears to be no — but the calls for action are getting much louder. And there’s certainly no shortage of interests clamoring for input.

Law enforcement officials see cameras as both an investigative tool and protection against phony complaints, but worry about citizens hesitating to call them to their homes and witnesses clamming up.

Police watchdog groups point out the main point of body cameras was transparency — so what’s the use if the footage can’t be seen, except in rare instances? Why is everyone worrying about what cops want, instead of what the public wants?

And civil libertarians worry about police having unrestricted recordings of the inside of homes — whether or not it’s relevant to a case at hand.

With 10 weeks to try to work everything out — and Minneapolis on the cusp of its own program — legislators acknowledge they have some real work to do.

THREE BILLS
This year, three state lawmakers have sponsored or are working on a bill — each largely reflective of their own personal backgrounds.

State Rep. Tony Cornish, a Vernon Center Republican who has been a law enforcement officer for decades — everything from game warden to police chief — wrote a bill that strongly coincides with that lobby’s interests. A body camera bill would likely have to pass through his Public Safety Committee.

State Rep. Peggy Scott, R-Andover, who chairs the House Civil Law and Data Practices Committee — and whose personal information was accessed in the drivers license data debacle — is working on a bill that focuses on the protection of civil liberties, most importantly the right not to be filmed. A previous version, floated last year but never introduced in committee, is a favorite of police watchdog groups like Communities United Against Police Brutality.

Finally, Senate Judiciary Committee chair Ron Latz, an attorney from St. Louis Park and the only one to get body camera legislation passed through his legislative body — has a bill watchdog groups aren’t too happy with, and the law enforcement lobby would likely want to be more restrictive. Latz said he likely won’t rework it, except in conference committee.

ANY CHANCE?
Last December, a large group of legislators assembled in a joint hearing to debate the issue. Scott, Cornish and Latz, each representing their committee, sat beside each other in a row.
Four hours later, near the hearing’s end, Cornish exhaled and expressed exasperation.
“This thing is just so slanted,” he said of some the suggestions he’d heard. He ticked off the reasons he was ticked off: officers not having any say when they could turn cameras on or off, having no expectation of privacy and not being allowed to film during protests “with five cameras in their face.”

In an interview several weeks ago, Cornish’s view hadn’t changed. “I don’t see us being real close to an agreement. … My personal feeling is that we don’t have to have a body cam bill.”

Still, Cornish acknowledged, “Right now, there’s no regulations on use of body cams; they (police) have policies, but they’re not guided by anything. That’s why it would be handy to have a bill.”
Scott said early last week that she too has heard from law enforcement officials saying they want some sort of guidance.

Still, Scott stressed that she believes Cornish’s and Latz’s bills are both too heavily slanted toward law enforcement rather than “transparency.” Latz’s legislation, which was passed as an amendment to another bill, “really wasn’t properly vetted,” Scott said.

Latz noted his bill had three hearings in his committee and a lengthy floor debate and said he believes it balances law enforcement concerns with victim’s rights and those seeking police accountability.

“It’s not an easy balancing act. … We’ve had many, many hours of debate in the Senate. It’s nice to have her focusing on it now,” Latz said.

THE CASE EVERYONE TALKS ABOUT
During past debates at the Legislature, one scenario repeatedly arose — it seemed to encompass everyone’s worst concerns about the technology.

A police officer arrives at the door of your home, wearing a body camera, responding to a “domestic.” Maybe you called them, maybe somebody else did. Maybe you’re the bad guy, maybe you’re a victim. Will they need to ask your consent — or even let you know they’re filming? Are they required to film at all times?

But the after-the-fact questions are more contentious. What happens to those recordings — who’s allowed to see them? Everyone agrees that those present at the incident are entitled to the footage — but can they make a copy or just look at it? Is the standard different if police use force?
The three bills, in their most recent forms, answer many of those questions differently.

There is some agreement, though: When it comes to the general public — those who were not at the scene — all three bills say the footage in such a scenario should be kept private as a default. Then the caveats come in:

• Latz’s bill says the general public can see footage only if it’s on public property — and involves police use of force that results in substantial bodily harm. Still, someone involved in the incident could get the video and make it public — after an effort is made to blur the identities of others in the video who don’t sign off. Police or a court could order the video released, as well.
• Cornish’s bill, redrafted this week, makes all data private except when police cause “great bodily harm” — a higher standard than both Latz and Scott seek — and after investigations become inactive. Subjects in the video can be “provided access,” though it’s unclear whether the data could be copied. He chafes at the idea of homeowners giving consent — saying it would be difficult for officers to legally determine who a homeowner is at the scene.
• Scott’s draft bill last year made all data on public property public and data on private property private unless police cause bodily harm — a lower threshold than Latz’s bill. However, police would need consent to record on private property, except in the case of “exigent circumstances,” and when executing warrants.

Scott noted those standards may be reworked before she introduces her bill this year.

WHEN CAN COPS LOOK?
December’s joint hearing included plenty of chatter — from testifiers and lawmakers alike — over the elusively ideal bill.

Particular prominence was given to a side issue over whether police should be able to view videos before writing their report. Minneapolis police allowed the practice in their draft policy, and Cornish’s bill strongly supports it.

“I would think that everybody would want the report to be accurate,” said Dennis Flaherty of the Minnesota Police and Peace Officers Association.

But watchdog groups, such as Communities United Against Police Brutality, say that in order to preserve the separate evidentiary value of a police report and video, the two must be independent of each other — and note reports can still be officially amended.

Others, including the St. Paul NAACP, brought up due process — wondering why an officer could review a video before their report but a defendant couldn’t before giving his own statement.
But most debated privacy in general — including that of officers.

“From our perspective, there is no compelling need for the public to have access to the huge majority of the things we do every day,” Flaherty said.

“I think the Constitution is much more concerned about the privacy of the citizens from the government than the privacy of government from its citizens,” Dave Bicking of Communities United Against Police Brutality later said.

St. Paul police’s Axel Henry, who is organizing the department’s pilot program, warned of a chilling effect on victims coming forward — especially in cases of sexual violence, even though data about such victims is already private under existing law.

“We have spent the last 30 years trying to get a group of folks who are victims of certain types of crimes to get them to actually talk to us,” he said. “If (a video of them is) going to get out, or if there’s a perception that it’s going to get out, that’s going to be a big issue.”

TWIN CITIES ON THE CUSP
St. Paul police intend to test body cameras this summer in anticipation of a department-wide rollout sometime in 2017. That could change, depending on how the Legislature acts.

Minneapolis police have finished their pilot program and decided to use them department-wide come October. The Minneapolis City Council just approved a $4 million contract for equipment and staff. A policy for body camera use is still in its “input” phase and won’t be finalized until May.

On Wednesday, Minneapolis police released a draft of the policy — one which flatly stated that the purpose of the cameras was to help police with investigations rather than “surveillance of officers.”
It requires all officers to wear cameras, and mandates activation for many types of incidents — typically those in which police may encounter conflict. Officers could turn them off in some cases, such as protecting undercover officers or confidential informants.

After the fact, data can be accessed in accordance with the state Government Data Practices Act.
Elsewhere in the state, more than 40 other law enforcement agencies are already using body cameras.

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CUAPB Releases Analysis of Minneapolis Body Cam Draft Policy

After the City gave the Minneapolis Police Department $6.4 million for body cameras without knowing what policy will actually govern their use, the MPD finally came out with a draft policy.  You can see it here.  Their policy leaves a lot to be desired.  The MPD promises public hearings on their policy, though they make no promises to adopt any changes and the hearings have yet to be scheduled.  Our analysis is below. 

ANALYSIS OF MPD BODY WORN CAMERA DRAFT POLICY
 
The Minneapolis Police Department released their draft Body Worn Camera Policy on March 1, 2016, just two days after receiving funding to purchase these devices.  While it is good that the community is finally able to see the policy, we are concerned that very little of the input gathered from the community through the Police Conduct Oversight Committee or directly submitted by Communities United Against Police Brutality, Color of Change, and other organizations was included in the policy.
 
Key Issue 1: Purpose of Body Worn Cameras
In promoting the purchase of body worn cameras, city officials and others cited the Rialto, California study showing a reduction in police misconduct complaints and claimed that a key purpose of these devices is to increase transparency and accountability.  However, the draft policy makes it clear that these devices cannot fulfill this promise.  The policy specifically states “The BWC equipment is not to be used for the purpose of surveillance of officers.”  In this context, the term surveillance refers to routine monitoring of police conduct, as the policy explains that any evidence of misconduct that is captured by the devices MAY only be used in relationship to a complaint or as part of a use of force review (which is only triggered if the officer completes a use of force report).  Otherwise, there will be no periodic monitoring of the footage, making the device useless as an accountability tool. There must be periodic monitoring of the footage to ensure that policy is being followed.  The International Association of Chiefs of Police (IACP) considers periodic monitoring a best practice and includes it in their model policy.
 
Key Issue 2: Activation and Deactivation
Provisions in the draft policy on activation and deactivation seem appropriate with two exceptions.  In locations in which there is an expectation of privacy, the BWC should be deactivated on request, with only narrow exceptions (see Key Issue 3).  Secondly, the draft policy states “Officers may [emphasis ours] activate the BWC in the following circumstances: General citizen contacts where the officer feels that a recording is appropriate.”  Body worn cameras should be activated during ALL encounters with members of the community, unless the individual is in a private area and requests the BWC to be deactivated.
 
Key Issue 3: Notification and Consent
The policy does not require consent or even notification that a recording is being made in a private residence or other location where people have the expectation of privacy.  Instead, officers are encouraged to inform people that they are being recorded.  We believe strongly that individuals should have right to decide if they want to have a camera recording them in private locations and should have the right to ask that the recording stop, except under very narrow circumstances.
 
Key Issue 4: Data Retention
The policy requires data to be retained for at least a year but under certain classifications for at least six years, the statute of limitations for most civil claims.  This provision is appropriate and should be adopted in the final policy.

Key Issue 5: Data Release
There is little in the policy regarding data release, except for a reference to releases required for various law enforcement and litigation functions or under the Minnesota Government Data Practices Act.  This isn’t problematic per se as data release policies and procedures fall under the City Clerk’s office.  Nonetheless, there will need to be changes to the city’s data practices policy and procedures and those changes have not yet been released for review by the public. We encourage adoption of the Internal Auditor’s recommendations.
 
Key Issue 6: Use in Surveillance of First Amendment Protected Activities
The draft policy states, “The BWC shall not be activated for the purpose of surveillance of legally protected activities.”  This provision is appropriate and should be adopted in the final policy.
 
Key Issue 7: Review of Footage Prior to Writing Reports
The draft policy not only permits viewing of footage prior to writing police reports but encourages it by stating, “to ensure the accuracy of reports,” officers “should review audio and video data before making a report or statement.”  This provision is highly problematic for a number of reasons.  Police reports should reflect the probable cause and other information known to the officer at the time the officer made decisions related to stops, detentions, arrests or other encounters with community members.  Further, both the police report and the BWC recording should have separate evidentiary value, which will no longer be possible if the police officer views the recording before completing the police report.  Finally, this provision implies that police reports may not be accurate unless they are accompanied by BWC footage.  Any lack of footage implies that the report lacks credibility—a position that is untenable for prosecutions and litigation.  Sam Walker, emeritus professor of criminal justice at the University of Nebraska, Omaha, notes in an article “if an officer is planning to lie, video is a good guide to what kind of lie he can get away with.”
 
Key Issue 8: Off Duty Use
The draft policy mandates use of BWC during off duty work.  This provision is appropriate and should be adopted in the final policy.
 
Key Issue 9: Right of Public to Document Police Conduct
The draft policy has a slight reference to the First Amendment protected right to document police conduct, “The BWC shall not be used for the purpose of intimidating or discouraging an individual from observing police activity…”  However, while the MPD now has a draft policy allowing them to film the community, they have no such policy protecting the right of the community to film the police.  The US Department of Justice requires all police departments to have an explicit policy regarding the rights of people to film police.