The number of people shot and killed by police officers in the past several years is disturbingly consistent: 987 in 2017, 992 in 2018, 1004 in 2019. People of color and those with mental illnesses are disproportionately the victims. Body cameras worn by law enforcement have been suggested as a way to impose accountability on otherwise unchecked police power. But while body cameras do have the potential to curb law enforcement’s use of excessive force, the lack of consistent policies across agencies could undermine police accountability and at the same time impede citizens’ right to privacy.
There is no nationwide standard governing when body cameras should be turned on and off. Even within individual states, body camera policies can be highly variable. In Denver, a policy clearly outlines when an officer must be recording, while in Colorado Springs, an officer has complete discretion over when his or her body camera is recording.
Even when there are policies in place that dictate body camera filming policies, accountability can still be subverted. In a recent deposition, Little Rock, Arkansas Police Captain Heath Helton was questioned about multiple use-of-force allegations involving Little Rock officers. During these incidents, the officers turned off their body cameras before the excessive force could be caught on-camera, in violation of department policy. The involved officers were found to have violated the policy requiring them to have captured the incident, but were ultimately cleared of wrongdoing in regards to the excessive force allegations because in the absence of body camera footage there was corroborating evidence. If there are no real consequences for violating body camera policies, officers have no reason not to simply turn their cameras off at critical junctures.
Body cameras also have the potential, as with any technology, to malfunction. When this happens, police departments – many of which have received federal grants to purchase body camera technology – may lack the funds necessary to repair or replace the equipment. Adding to this expense is the cost of storing the massive amount of data collected by the cameras. All of these costs have made it difficult for certain cities to maintain their body camera programs.
Aside from financial issues, there have also been problems with how police share body camera footage with the public. Body cameras have been viewed as a way to increase law enforcement accountability to the community; however, it is almost always the case that members of the community cannot access a law enforcement agent’s body camera footage without jumping through a series of legal hoops. Body camera footage of altercations cannot be requested through the Freedom of Information Act or otherwise accessed when they are part of ongoing investigations. This has led to certain instances of seemingly endless “ongoing investigations” as an apparent measure to stall the video’s release to the public. The footage in question is often only made available after a court order. While members of the public may never see body camera recordings of a serious altercation, virtually all police departments allow the involved officers to view the footage, meaning that unscrupulous officers can shape their narrative to best fit the footage.
There have also been incidents where body camera footage has been recorded properly, only to go missing later. Sometimes, the footage appears to have been corrupted or uploaded correctly, as was the case in which body camera footage captured a man’s dying declaration naming his attacker, only for the police department’s IT to be unable to recover the recording. In other cases, the circumstances surrounding the disappearance of body camera footage is more suspicious, such as the missing footage of Chicago police officers pointing guns at children after executing a raid on the wrong residence.
The use of body cameras also represents a challenge to an area of law that is already deeply entangled with law enforcement: privacy rights. Like interrogation room recordings, body camera footage is often used as evidence in trials. However, unlike those questioned in an interrogation room who have been informed of their privacy rights, individuals being recorded via body cameras are almost never asked to sign a waiver granting permission for the recording, or even notified that they are being recorded in the first place.
The privacy problem gets stickier when it intersects with the public’s right to request government information. When other types of documents are released to the public for transparency purposes, personal information is redacted. However, when the media or watchdog groups request access to body camera footage, this footage cannot be easily altered. The release of footage of a state trooper pulling people over for speeding may not prompt many to consider privacy concerns, but the release of recordings of law enforcement speaking to domestic violence victims, individuals with medical problems, and relatives of accident victims certainly should. The city of Madison, Wisconsin rejected a body camera program in part because of concern the footage might be used by federal immigration agents to locate undocumented residents.
A body camera on its own will never be a perfect curb on police misconduct as long as there are other structures in place that help limit law enforcement accountability. In 2016, police-worn body cameras captured footage of Dallas police officers using excessive force on an unarmed, mentally ill man and ignoring his cries for help for thirteen minutes as he lay restrained and dying. For over a year, Dallas police sandbagged the inquiry into the man’s death, saying that it would interfere with an open police investigation. In 2017, after watching the footage, a grand jury indicted two of the five officers present on the misdemeanor charges of deadly conduct. Those charges were later dismissed by the Dallas County district attorney.
The danger in trusting body cameras as the primary solution for police accountability is that the use of these cameras doesn’t get to the heart of the systemic issues that plague law-enforcement and the criminal justice system. Body cameras are not perfectly impartial or infallible. As with any other technology, they are a tool used by people, and people have the ability to manipulate and distort technology to their benefit. Body cameras can, and have, been used to curb excessive police power. But relying on them to fix a complex cultural problem is shortsighted.
* Katherine Klein is an Associate Editor on the Michigan Technology Law Review.