By Peter Rugh
for The Indypendent
"There is a phenomenon in this country that we need to examine and it’s just not in New York,” NYPD Commissioner William Bratton told reporters in May, after addressing a national conference of police chiefs at the Times Square Marriott Marquis. “This has become very serious. I would almost describe it as an epidemic.”
Bratton, who announced his retirement on August 3— much to the delight of Black Lives Matter demonstrators who set up an encampment at City Hall calling for his resignation one day previously — was not speaking of zika or ebola. He was talking about civilians filming police, a viral occurrence in recent years.
Bratton went on to equate recording law enforcement with intimidation and attempts to free individuals in police custody. “The community has to make up their mind if they want law enforcement or if they want mob rule,” Bratton said.
Much to the chagrin of top cops like Bratton, new technology has helped in recent years to pull back the curtain on policing in America. The widespread availability of smartphones and increased implementation of police-worn body cameras has meant acts of racialized brutality inflicted upon civilians by those sworn to protect them are being made more visible. This in turn has helped to fuel the Black Lives Matter movement with its calls to radically change the criminal justice system.
“The issue of police misconduct, police brutality, police killings particularly in Black and brown communities — none of that is new,” said Mara Verheyden-Hilliard, co-founder of the Partnership for Civil Justice Fund (PCJF). “But for a portion of America who hasn’t been experiencing it on a daily basis, it’s been really important for them to witness what’s actually going on and for people of conscience to join together with one another.”
Facing heightened public scrutiny and a powerful protest movement that began two years ago this month in Ferguson, Missouri, law enforcement officials, police unions and their conservative political allies are diligently working to throw the spotlight off of police and roll back attempts to hold them accountable.
“As you see steps forward both in the capacity to shine a light on what police are doing and expose it to the world,” cautioned Verheyden-Hilliard, “you are going to see a parallel effort to try and push back against that because it is not in the state’s interest to have police accountability.”
On July 11, North Carolina Governor Pat McCrory signed a law exempting police body and dashboard camera footage from the state’s public record laws. North Carolina — together with South Carolina, Georgia, Florida, Oregon and Illinois — is the sixth such state to do so.
Under House Bill 972, citizens who are filmed can view the material, as can interested reporters, but to do so requires filing a written request with law enforcement that police departments have the discretion to refuse. If such is the case, citizens and journalists must seek redress in court. Members of the public who are granted access to the footage can be prohibited from copying or distributing the material under the law.
McCrory has sought to portray HB 972 as a measure that strikes balance between open government and officer rights.
“If you hold a piece of film for a long period of time, you completely lose the trust of individuals,” McCrory said upon signing the legislation. However, “we’ve learned if you immediately release a video, sometimes it distorts the entire picture, which is extremely unfair to our law enforcement officials.”
The governor neglected to cite specific examples of body camera footage distorting the “entire picture.” When contacted, his office referred The Indypendent to Frank Perry with the North Carolina Office of Public Safety. Perry couldn’t provide any examples either but argued body cameras can render “an unfair angle or unfair picture of what happens” between law enforcement and the public.
“I’ve worked internal affairs for decades,” Perry said. “There are times when internal affairs needs a quiet view of what happened to render due processes to an agent or officer.”
Yet police already have legal protections that go far above what is afforded to your average citizen. An Amnesty International report issued last year that found use of force requirements in all 50 states failed to meet standards set by International law, noted that “accountability for police use of lethal force is severely lacking” in America, since “the officer’s own police agency usually conducts the investigation before handing the case over to the local prosecutor” who has to “maintain good working relationships with the police.”
Protections that inhibit investigating, charging, or firing police officers who have been accused of brutality are often written into union contracts. Fourteen states, including Maryland where the Baltimore District Attorney announced last month she would no longer pursue charges against officers in the death of Freddy Gray, have enacted law enforcement bill of rights legislation. These laws allow officers to be informed of any testimony that can be used against them before they speak with investigators. Eleven states, North Carolina among them, are also considering extra bill of rights protections for cops.
Proposed Blue Lives Matter laws that protect cops under hate crime statutes have begun to crop up nationally as well. In Louisiana, the first of such pieces of legislation went into effect in August. Under the state’s Blue Lives Matter law, civil rights protections can be used against demonstrators for offenses such as gathering on police property or damaging police property. Florida, Wisconsin, Kentucky, Texas and the city of Chicago are also considering similar measures.
Meanwhile, victims of police violence and their families have faced difficulty receiving justice through federal civil rights charges since prosecutors have to prove intent on the part of cops in order to convict. Attorneys with the Justice Department have reportedly broken down footage of Eric Garner’s death frame-by-frame in order to prove his rights were willfully violated by NYPD officer Daniel Pantaleo, rendering, advocates say, such video all the more important.
Witnesses or victims in video of police interactions with civilians need to be protected too, insisted Perry. Still he conceded that instances might arise under the state’s public record law in which there is a genuine public interest in disclosing footage and yet it gets tied up in courts.
“I could see the possibility that law enforcement says ‘no’ [to a request to view its footage], a judge says ‘no,’ and then there’ll be an appeal,” said Perry. “We’ll see how this gets mitigated.”
Precisely such a scenario unfolded in Chicago where it took more than a year to win the release of dashcam video that showed the 2014 shooting of 17-year-old Laquan McDonald. The city, including its mayor, Rahm Emanuel, argued that releasing the tape would hinder ongoing investigations. Once video of officer Jason Van Dyke gunning down McDonald surfaced it sparked immediate protests and widespread calls for Emanuel’s resignation.
Perry admits HB 972 isn’t perfect but he feels that like the officers bill of rights and Blue Lives Matter laws that it could become a piece of model legislation for other states to adapt.
Verheyden-Hilliard takes a dimmer view.
“Just as body cameras are being deployed around the country, we’re seeing legislation and regulations and amendments to public records laws to restrict access to the footage,” she said. Protecting-the-victim arguments don’t hold water in her eyes. “There are ample technical capacities and blurring algorithms that could be used to ensure personal privacy. What they are really trying to do is stop the public from seeing clearly what police are doing, how police are interacting with the public.”
At the urging of the Fraternal Order of Police in Oklahoma City the police department dropped its body camera program altogether in June. “We have nothing to hide and fully support transparency,” John George, the union’s president said in a statement. It’s just that a policy which protects “our officers and their privacy along with that of our citizens” must be implemented first. At George’s insistence, however, members of the department were allowed access to a new piece of equipment last month; they were granted permission to carry their own personal rifles on the job.
Still, many police departments have embraced body cameras. Taser International, the largest purveyor of body cameras on the market, pitches their merchandise as a way for police to curb use-of-force complaints, an enticing promise for cities like New York that shell out approximately $70 million annually to settle such cases.
“(Cops) will be able to photograph what is in front of them,” said NYPD Commissioner Bratton, who launched a body camera program he hopes will counterbalance the negative publicity his department has received from video footage shot by civilians, which in addition to Garner’s death have captured officers arresting a uniformed postal worker for no apparent reason, pepper-spraying young women and punching a civilian in the face for filming them.
Body and dash-cam footage is shot from the point of view of officers who have the ability to disable the cameras and, in some cases, decide when and when not to record—a fatal flaw, critics observe, in terms of transparency. Cameras attached to police in Baton Rouge, Louisiana niftily became dislodged and failed to capture the moment when officers delivered multiple gunshots to Alton Sterling on July 5. Roughly three weeks later, on July 29, a body-cam equipped cop in Chicago shot Paul O’Neal, an 18-year-old black teenager but, as in Baton Rouge, the officer’s camera wasn’t recording.
“We just want answers, the truth, that’s it,” said O’Neal’s sister, Briana Adams.
Along with restricting access to body cameras, police and their supporters are proposing laws to prohibit bystanders from recording their actions.
“You have an absolute right to film the police,” said PCJF’s Verheyden-Hilliard — barring certain restrictions. You can’t directly interfere with police operations, for instance.
But not everyone in the legal community agrees.
The American Civil Liberties Union has filed an appeal with the Third Circuit Court in Philadelphia after Judge Mark Kearney issued a summary judgement in February that claims citizens do not have “a First Amendment right to record police conduct without any stated purpose of being critical of the government.”
The ruling concerns two separate First Amendment claims against the Philadelphia Police Department; one from a college student arrested for photographing a large group of cops, the other from a legal observer who was attacked by plainclothes officers during a protest when she attempted to film an arrest. Judge Kearney’s interpretation of the Constitution raises many questions, not the least of which is how must a videographer express criticism of the government in order to receive First Amendment protection?
“The freedom to monitor the police without fearing arrest or retaliation is one of the ways we distinguish a free society from a police state,” Reggie Shuford, executive director of Pennsylvania’s ACLU chapter. “We hope the court of appeals will make a clear statement that every person has the right to observe and record police in public, irrespective of whether the purpose is to criticize them.”
The ruling is an outlier but the Third Circuit’s judgement could set a dangerous precedent. Meanwhile, the absence of a Supreme Court ruling regarding filming police has left a vacuum for lawmakers to propose their own rules.
Last year, Texas State Representative Jason Villalba of Dallas proposed legislation at the behest of the Dallas Police and the Texas Municipal Police Association that would have barred citizens, including news media, from filming within 25 feet of law enforcement. Though the legislation was promptly dropped after video shot by a witness to the killing of Walter Scott by an officer in North Charleston, South Carolina gained national notoriety, lawmakers elsewhere have persisted with copycat proposals. A similar measure to Villalba’s was proposed earlier this year by Arizona State Senator John Kavanagh, a former New York City cop and promptly dropped amid public outcry.
Other pieces of legislation have aimed at protecting the right to film cops. Colorado lawmakers enacted a law last year that imposes a $15,000 civil penalty on police who prevent the public from filming them. New York City Council Member Jumaane Williams introduced the Right to Know Act in July. The bill would prohibit police from interfering with or intimidating citizen’s filming them. Patrick Lynch, president of the Patrolman’s Benevolent Association opposes the act arguing that any legislation regarding filming police must include a 15-foot buffer zone.
But just as it pulled back the curtain on policing, new technology might soon make disputes over documenting law enforcement activity moot. Apple received a patent this summer for an infrared sensor that enables third parties to disable camera’s on their iPhones. Judging from materials submitted to the U.S. patent office, Apple plans to market the device to the entertainment industry to prevent unauthorized recordings of concert performances and the like. But it is easy to imagine the technology, in the hands of law enforcement, being used to push brutal and racist policing practices back into the shadows.