Should Police Officers Have Discretion in the Use of Body Worn Cameras?


Police Body Camera

By Jay Stanley

In our October 2013 policy white paper on police body cameras, we struggled with how to ensure that the cameras would serve as an effective oversight mechanism for police while not unduly invading privacy. We pointed out that purely from an oversight standpoint, putting aside all other considerations, the ideal policy would be for officers’ cameras to run throughout their entire shift, which would guarantee that an officer could not evade detection while engaging in abuse. But as we discussed, it’s not possible to put aside all other considerations, including the privacy of the public and of officers.

The recommendation that we settled upon was a mandate that officers record “every interaction with the public.” Importantly, that was paired with and premised upon a regime that we recommended in which the vast majority of video footage would be locked away, never to see the light of day, with the only exceptions being where there was an allegation of wrongdoing against an officer, or the video was evidence of a crime.

We have received a fair amount of questioning and pushback on this recommendation. For example the Police Executive Research Forum (PERF) took explicit exception to our position in their September 2014 report on body cameras. PERF argued that:

There are certain situations, such as interviews with crime victims and witnesses and informal, non-law enforcement interactions with members of the community, that call for affording officers some measure of discretion in determining whether to activate their cameras. There are situations in which not recording is a reasonable decision. An agency’s body-worn camera policy should expressly describe these situations and provide solid guidance for officers when they exercise discretion not to record.

For example, officer discretion is needed in sensitive situations, such as encounters with crime victims or witnesses who are concerned about retaliation if they are seen as cooperating with the police. In other cases, officer discretion is needed for routine and casual situations—such as officers on foot or bike patrol who wish to chat with neighborhood residents—and turning on a video camera could make the encounter seem officious and off-putting. . . .

Many police departments… give officers discretion regarding whether to record interviews with victims of rape, abuse, or other sensitive crimes. Some departments also extend this discretion to recording victims of other crimes.

These are fairly compelling arguments. Moving away from a “record all public encounters” policy might have other advantages as well. When we called for such a policy, it was premised on the idea that most video would disappear into a black hole, never to be viewed by human eyes. But several problems with that premise have emerged. First, few police departments so far seem to be adopting that approach. Second, some states’ open-records laws (the state equivalents of the federal FOIA law) define all video captured by body cams as a “public record” susceptible to public release upon request. Examples include Washington state and Minnesota. We do think that while broad open-records laws are crucial, the inclusion of proper privacy protections in those laws is also crucial. That said, a narrower recording mandate makes those problems much less severe.

The record-all-encounters policy leans heavily toward bolstering oversight; it was based on the assumption that we will see some police officers working to undermine camera oversight every way they can. We still think that. However, as I argued here, changing social expectations around video recording may offer some protection from that kind of manipulation. Simply put, society increasingly expects that dramatic events will be videotaped; any officer whose camera for some reason does not capture a shooting or other dramatic contested encounter on video will increasingly be viewed with incredulity and suspicion. (They should also of course be subject to punishment if it’s shown they did manipulate the camera to avoid oversight.)

Moving away from a record-all-encounters policy also ameliorates many of the potential privacy problems that such a policy raises. For example:

  • Mass surveillance. A record-all-encounters policy might not be so problematic in a typical American automobile-centered town where officers rarely leave their cars except to engage in enforcement and investigation, but in a place like New York City it would mean unleashing 30,000 camera-equipped officers on the public streets, where an officer on a busy sidewalk might encounter thousands of people an hour. That’s a lot of surveillance. And of course, the most heavily policed neighborhoods—poor and minority areas—will be the most surveilled in this way.
  • Face recognition. By the same measure, we don’t want body cameras to mission-creep into face recognition devices. It is easy to imagine the first time a child abductor is on the loose, demands will arise to equip those 30,000 NYPD officers and their body cameras with face recognition, so that the thousands of faces an officer might encounter an hour can be scanned. And why not add a short list of wanted terrorists? Why not a long list? And suspected terrorists? And other criminals. And the next thing you know everyone’s location is being tracked as their faces are recognized and recorded, and innocent people who bear a resemblance to one of the faces in a large database are being constantly hassled by the police or worse. (Technologically, the addition of real-time face recognition would require the devices either be made capable of real-time video feeds to a centralized face database, or periodic local importation of such a database into each device. Today’s devices can’t do either, but it’s certainly possible to do.)
  • The recording of First Amendment-protected activity. We don’t think the police ought to be recording peaceful political protesters, for example, using body cameras or any other camera. Under our policy in the white paper, such recording would take place automatically. If such videos are not to be locked down, that surveillance is a problem.

If officers are not going to be required to record all public encounters, what should a policy stipulate? They should require that an officer to activate his or her camera when responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a police officer and a member of the public. That would include stops, frisks, searches, arrests, consensual interviews and searches, enforcement actions of all kinds, and any encounter that becomes in any way hostile or confrontational. We continue to believe it’s crucial that the vast majority of video be locked down and not used for any purpose other than oversight or evidence.

Our policy white paper was published very early in the public discussion of this technology, and as we acknowledged at the time, our proposals were necessarily preliminary. With the technology moving as fast as it was, we felt compelled to weigh in when we did. We will continue to refine our policy recommendations on this knotty issue as experience and input from various stakeholders suggests is necessary.

Jay Stanley is the Senior Policy Analyst at the ACLU Speech, Privacy & Technology Project.


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27 thoughts on “Should Police Officers Have Discretion in the Use of Body Worn Cameras?”

  1. zaqzaq

    I would think we would want police officers interaction with peaceful protesters to be recorded to evaluate their performance.  Peaceful protests can become violent and even peaceful protesters can be arrested.  Recordings would validate claims of inappropriate behavior and insulate officers from false claims.

    1. PhilColeman

      “We don’t think the police ought to be recording peaceful political protesters, . . .”

      The ACLU appears to be proposing that police officer should be denied First Amendment rights. This policy recommendation comes from an organization that prides itself as the defender of civil liberties for all citizens.

      Foremost, such a recommendation is impossible. If somebody invokes their First Amendment right to speak publicly, anybody can record it, and often people do. Most everybody has a smart phone these days, and as soon as person makes a public statement of some presumed import, you see smart phones being activated. To suggest that the police be prohibited from doing, what anybody else can do, is absurd, and most assuredly unlawful.

      1. David Greenwald

        It’s an interesting question – is this a First Amendment issue for the police under the color of authority to be able to record people not breaking the law for use at a later point in time? I do think that what a private citizen can do is different from what the police should be able to do.

        1. Barack Palin

          How many times have the police been sued for being on duty at a demonstration and then accused of something.  The camera works both ways, to show if the cops get out of hand or if it was someone who was using their 1st amendment rights went too far.  It sounds here like activists want this both ways.

          1. David Greenwald

            That’s a good point – the question would be at what point are you recording peaceful protestors and at what point are you recording a potential crime scene? Also, I think it is not an insignificant point what you do with the recording once the protest ends and nothing happens. None of these are simple questions or have simple answers.

          2. Matt Williams

            David, history has shown us over and over again that overt public protest is an outward and visible sign of polarization. When you bring the two poles of an electric/charged issue together, what may have started as peaceful can instantaneously spark into the antithesis of peaceful. The movie Selma did a very good job of showing how one group’s definition of peaceful is another group’s definition of disruptive. As a result, at least for me, the answer to “what point” is the point where there is a reasonable anticipation of confrontation that will convert peaceful to not peaceful.

        2. South of Davis

          BP wrote:

          > It sounds here like activists want this both ways.

          They DO want it both ways…

          The video of the cop attacking the activist is not as good if the cop has a video of the activist hitting him with a bottle before the “attack”…

          In the word of YouTube viral videos everyone is out there trying to get something they can edit to make the “other side” look bad…

          1. Matt Williams

            SoD, sports fans very regularly see the referees/officials miss the precipitating event but not the response, and as a result only call the penalty/foul on the responding player, while the aggressor gets away scot free. With the benefit of instant replay, the fans get to see all the events, and as a result also see the “missed call” by the referees/officials. In real life police matters, it would be best not to have any missed calls.

        1. Davis Progressive

          it’s not illogical, it’s just complicated.   there are concerns about what the police would do with the videos.  there are also concerns about the chilling effect of videos on free speech – see again the glen greenwald ted speech where he notes that when people are watched, they act differently and when they are watched by authorities they act really differently.

          1. Matt Williams

            DP, if the videos are of uneventful events, what are the concerns about what the police would do with the videos.

            Regarding the expression of free speech in public gatherings in public places, isn’t it useful that speakers take the time to figuratively count to ten before they speak? That is called responsible/considered expression of free speech. If the goal of free speech is to promote constructive dialogue, why is such self-editing behavior bad?

        2. zaqzaq

          Usually the protesters are trying to draw attention to their cause and want their ideas heard by a large audience.  If a person is so concerned about being observed protesting in this day and age when anyone can record the event they should stay home.

  2. Anon

    We don’t think the police ought to be recording peaceful political protesters, for example, using body cameras or any other camera.”

    “If officers are not going to be required to record all public encounters, what should a policy stipulate? They should require that an officer to activate his or her camera when responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a police officer and a member of the public. That would include stops, frisks, searches, arrests, consensual interviews and searches, enforcement actions of all kinds, and ANY ENCOUNTER THAT BECOMES IN ANY WAY HOSTILE OR CONFRONTATIONAL.

    On the one hand what is being advocated here is that police not be permitted to record peaceful political protests.  On the other hand any encounter that becomes hostile or confrontational should be recorded.  How many “peaceful” protests end up turning violent?  Seems to me that if the police recorded peaceful protests, such a protest would be more likely to remain peaceful!

      1. Davis Progressive

        they might.  one of the problems is that you think cameras are going to be definitive in such cases, but unless the camera is close up and has a clear view, perhaps not.  how many times is a football play not overturned because the evidence is inconclusive?

        the other factor is that law abiding citizens might think twice before participating if they know they’re on camera and that’s what the aclu is more concerned about.

        1. zaqzaq

          Law abiding protesters who do not want to be caught on camera by the police, news media or a private citizen should just stay home.  Either they believe in their cause or they don’t.  Cameras will do a better job of keeping protests peaceful if those who may become violent know they are being filmed.   Cameras should help keep the protests peaceful even if they do not catch everything or every angle of an event.

        2. Matt Williams

          DP, the football replay situation you cite only has limited applicability. The major difference is that replay is not being used to make an initial determination about the play in question, but rather to try and decide whether a decision that has already been made was correct. View vs. review. They are very different situations.

          I understand the ACLU’s point, but as you pointed out in an earlier reply to me, the situations that the ACLU is concerned about are complicated. My personal concern is that in its position on this issue, the ACLU is allowing a quest for perfection to block the accomplishment of considerable good. In effect they are advocating a double standard … one that demands perfection from the police with no similar high expectation for the individual citizen.

        3. hpierce

          Re:  zaqzaq’s 11:50 post… funny, but SOME demonstrators are disappointed when news media DOESN’T show up with video cameras!  Many times the protest leaders advise the media ahead of time to make sure they reach a larger audience.  Works pretty well on ‘slow’ news days.  One of the ‘take-aways’ from the article is that arguably, particularly in California, police cam footage can be considered a “public record”, and available to private folk who oppose the demonstration and use it for any purpose they want.  Perhaps a blogger familiar with submission of PRA requests.

      2. PhilColeman

        Yes, and in all fairness, the same applies to the police.

        Everybody “thinking twice” before responding to a confrontational circumstance is not a bad thing. Or maybe it is, if I can follow the ACLU convoluted thinking. One has to wonder if the ACLU policy proponents  thought twice before issuing a policy recommendation, and then promptly began modifying it.

  3. Carlos GMatos

    Body camera’s must be on at all times period!  Enough of liberal Democrat’s BS that it violates individuals rights, it only protects everyone.  No more ridiculous arguments it violates individuals confidentiality rights.  Have been advocating for this technology for many years and now it’s time to implement.  I’m sure that it can not solve all situations, but it will go a long ways to help both the public and the officer’s.

    1. zaqzaq

      The police need to be able to turn off the cameras while on shift.  They should be off during briefings, in station discussions, while using the bathroom, and any other time while they are not on a call or interacting with the public.  Hopefully there will be a mechanism that makes sure the camera is on when either the lights or siren are activated.

    2. hpierce

      OK… cams on when a police officer is discussing details of a traffic collision with a city engineer?  Or when reviewing a development review proposal?  Or when going into a restaurant during their on-shift, approved, lunch break?  Or, afterwards, using a restroom to eliminate liquid or solid wastes?  Or, if they’re on-call (sorta being on-duty) having sex with their spouse?

      “Body camera’s must be on at all times period!”  A bit ‘over the top’, methinks.

  4. Frankly

    The reason…   very few claimed “peaceful” protest are in fact peaceful.  And when one of those so called “peaceful” activists is recorded behaving in a way that justifies the actions of the police, the ACLU (which is really just a front for civil-rights suing trial lawyers), has a harder time exploiting the situation to extort money from the employer of the police.

    Note a hypocritical and self-serving argument when you see it.

    If you are really just a peaceful protester, why would you care that you might be videoed?

  5. sisterhood

    “To suggest that the police be prohibited from doing, what anybody else can do, is absurd, and most assuredly unlawful.”

    I’m inclined to agree with Mr. Coleman on this one.

    I wonder if my dad would have welcomed a camera on him 24/7 while on duty. What about when he was going to the restroom, or changing into some fresh clothes when he was asked to work a double shift at the capitol bldg. in Boston, during a blizzard? I don’t think he’d want a camera on him while he was changing into some fresh clothes or using the toilet. The rest of the time, he’d probably welcome it.

    He liked having his picture taken. He had a good sense of humor, too. When he took us to Disneyland in 1969, we were all posing with the characters. He didn’t pick Mickey or Minnie to pose with. He wanted us to take a picture of him with the pig. He thought that was really ironic & funny. It’s one of my favorite photo’s of my dad.

    I think he would have been okay with the camera’s 90 % of the time he was working. Perhaps we should let the officers voluntarily wear the camera, then see what happens.

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