July | August 2017


 

 

 

 

 

 


Body Camera Laws Raise Questions about Access to Footage

By Nathan Smith, CSG Graduate Fellow
In the wake of several high-profile incidents involving the injury or death of citizens during altercations with law enforcement, questions surrounding police misconduct and use of force have grown in recent years. Increasingly, policymakers and the American public alike are looking to and calling for the use of body cameras by law enforcement officers in an effort to increase transparency in police-civilian interactions. A 2015 University of Nevada, Las Vegas survey revealed that 85 percent of those in a national sample of U.S. adult residents supported a requirement for police officers to wear body cameras while on patrol to record their interactions. While support for such a requirement is strong and more police departments are expected to adopt body cameras, one question is fiercely divisive: Who should have access to footage recorded on police body cameras?
In 2015, South Carolina became the first state in the nation to require all state and local law enforcement officers to wear body cameras. The law provides guidelines, policies and procedures, as well as funding details. Some policymakers and advocacy groups, though, were frustrated by the law’s restrictions on data captured by the cameras. The law deemed that body camera footage would not be considered public record.
Similarly, North Carolina Gov. Pat McCrory signed HB 972 into law on July 11, 2016, which also deemed that body camera footage would not be available to the public. The law allows individuals recorded or their personal representatives to request a copy of the video, but it also provides a list of reasons for which law enforcement may decline to release the footage. These restrictions have led some to fear that police departments will release recordings when it favors them and keep private those recordings that could jeopardize their reputations or their safety.
Civil liberties groups like the American Civil Liberties Union, or ACLU, partnered with media advocacy groups like the North Carolina Press Association to fight HB 972’s confidentiality stipulations.
“I would say whole-heartedly that HB 972 is a step backwards,” said Susanna Birdsong, policy counsel for the ACLU of North Carolina. “It codifies non-disclosure and gives police chiefs full discretion to decide whether they’re going to even disclose (footage) to the people who are the subjects of the recordings.”
“The bill lists several factors that a law enforcement agency may consider in deciding whether to disclose, but the language is very permissive and allows them to consider these factors and consider any other factors that they deem relevant,” said Birdsong. “So then, in terms of release, the law stipulates that anyone who wants the footage released, more broadly or obtain a copy of the footage, has to go to court in order to do that,” she said.
In cases of heightened public interest, there should be a presumption that the police department should release that footage, said Birdsong. “If they don’t want to release for any number of reasons that they might have, the burden should be on them to make that case to a judge instead of the other way around,” she said.
Those in favor of the law’s provisions claim that the process of obtaining body camera footage will actually be easier and more efficient than ever. Proponents include lawmakers and various law enforcement associations like the N.C. Association of Chiefs of Police and the N.C. Sheriff's Association. State Rep. John Faircloth, a primary sponsor of the bill, said that current state laws place constraints on the release of body camera footage that make it more difficult for those captured on video to view the footage.
“The new law removes constraints on release, takes power over release from law enforcement and places it with judges in an expedited procedure, creates new ability for viewing or receiving a copy of video by those depicted on it, and provides reasonable protections of citizens’ privacy,” Faircloth said. “The head of the law enforcement agency (police chief or sheriff) makes an initial decision whether to allow viewing based on the criteria in the new law, and there is an expedited review by a superior court judge to override this initial decision.”
Those in favor of HB 972 claim that those in law enforcement want video to be released in most cases as it can document disputed interactions, dispel rumors and ease tension amongst the public. According to Faircloth, “Showing video to people who complain of police misconduct leads to resolution of complaints and avoids conflicting accounts of what happened. Video can identify misconduct by officers who can be disciplined or terminated.”
Critics of the bill, however, claim that it will obstruct accountability and transparency in policing, as well as negatively affect some groups in society more than others. Some voice concerns that the new law will affect some groups more than others. “I think in terms of thinking about who and what types of communities police are interacting with more frequently, HB 972 will have a disproportionate impact on poor, minority communities who are already over-policed,” said Birdsong.
Although North Carolina’s HB 972 takes effect on Oct. 1, groups such as the ACLU are working to amend the law in the next legislative session. “We don’t really think it’s going to work for people,” said Birdsong of the new law. “We’re also encouraging people to know their rights about filming their interactions with law enforcement and others’ interactions with law enforcement.” The ACLU of North Carolina offers a free mobile justice app that allows users to record interactions with law enforcement and upload videos directly to the ACLU’s headquarters in Raleigh.
At least 18 states have passed laws that specify the degree to which body camera data should be public record. In states such as North Dakota, body camera footage is considered public record unless it is captured in a place where one can reasonably expect privacy, such as an apartment or a nursing home. Other states, such as Connecticut and Oklahoma, generally consider footage to be public record, but there are many exceptions, including depictions of violence or nudity, or video that would identify minors, to name a few. On the more restrictive side of the spectrum, states, such as Illinois and Oregon, decided that body camera footage should not be considered public record, with a few exceptions. In Illinois, for example, footage is to be released in cases of excessive use of force, while in Oregon, a judge may decide to release video if the case is of significant public interest.
 
1 | 2 | 3 Next >