Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
D.C. Council Committee on Judiciary and Public Safety
Public Oversight Roundtable on “Five Years of the Metropolitan Police Department’s Body-Worn Camera Program: Reflections and Next Steps”
Monday, October 21, 2019
Room 412
by
Nassim Moshiree, Policy Director

Good morning, Councilmember Allen and members of the Committee. My name is Nassim Moshiree, and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 14,000 members who live and vote in the District.

The ACLU-DC is committed to working to reverse the tide of overincarceration, safeguard fundamental liberties, eliminate racial disparities, and advocate for sensible, evidence-based criminal justice reforms.

Thank you for this opportunity to testify on the District’s Body-Worn Camera program. In 2014, the Metropolitan Police Department (MPD) began outfitting its officers with body-worn cameras. The following year, the D.C. Council passed the “Body-Worn Camera Program Amendment Act of 2015” to establish rules for MPD’s use and retention of BWC footage with the stated intent of “promot[ing] accountability and transparency, foster[ing] improved police-community relations, and ensur[ing] the safety of both officers and the public.”1

Nearly five years later, and with a $5.7 million annual cost2, the District’s body-worn camera program has fallen far short of achieving its intended purpose of greater transparency and accountability of MPD’s police practices. As evident from the study conducted by the Lab@DC in 20173, body-worn camera use, by itself, has not lead to any measurable improvements in police-community relations or in how officers conduct themselves4. One reason for this is that no technology can address discriminatory enforcement of laws or the culture of impunity that plague MPD from the top down, which have led to the overpolicing of D.C.’s black and brown communities, a historical increase in civilian complaints about officer harassment and misconduct5, and a serious lack of accountability for officers who have been found to engage in police misconduct.

However, there are also significant problems with the District’s body-worn camera program that, if meaningfully addressed, would result in improvements to accountability and transparency of policing in the District. These problems include 1) a lack of accountability in officer compliance with existing regulations and MPD general orders, 2) lack of public access to BWC footage, especially in matters that are of significant public interest, and 3) existing practices that help perpetuate/hide police misconduct.

  1. First, police officers’ compliance with MPD’s General Orders on Body-Worn Cameras are regularly flouted and ignored, without meaningful consequences for those who violate their duty to operate body-worn cameras properly.

    MPD General Orders on body-worn camera use require officers to start their BWC recordings at the beginning of any self-initiated police action or as soon as they get a call from dispatch, and to keep their cameras on until the incident/interaction has fully concluded, except in very specific circumstances6. However, the Office of Police Complaints 2018 annual report found that 32 percent of the cases it investigated included some form of body-worn camera non-compliance7. As all OPC cases investigations are currently complainant-driven, these are likely just a fraction of the possible cases in which officers fail to comply with the law.

    D.C. law requires the Mayor to release publicly available reports on MPD’s BWC program every six months8. The most recent report available on the MPD website is covers the period of time between January and June 20189. In that report from June 2018, there were 340 reported investigations into cases of officers failing to turn on their BWC during interactions when they were supposed to10. In 297 of those 340 investigations, officers were found to have violated their duty to turn on their BWC. Existing regulations also require MPD to conduct regular audits to identify problems with training and officer conduct before they result in complaints, but it’s unclear if the Department is complying with these requirements.

    What’s more troubling is that there seem to be no meaningful consequences for failure to activate cameras or when officers have been found to tamper with equipment11. Body cameras cannot advance accountability when there are not clear disciplinary consequences for failure to comply with the law. When Officer Brian Trainer failed to turn on his body-worn camera when he fatally shot Terrence Sterling in 2016, Chief Peter Newsham’s response was that MPD was actively “trying to remind” officers to turn on their cameras when they were supposed to12. Three years later, MPD must do more than just “remind” officers to follow the policy, and referring officers to additional training when they intentionally fail to turn on or intentionally turn off their cameras during police incidents is insufficient to ensure full compliance.

    Violations of MPD’s retention policies of body-worn camera footage of officers engaging in misconduct further contributes to community concerns regarding a lack of accountability. In July of 2016, WUSA9 filed a FOIA request for footage captured in the incident between now-terminated Officer Sean Lojacono and our client, M.B. Cottingham, which showed a second angle of the intrusive and unlawful stop-and-frisk of Mr. Cottingham13. MPD responded that the video had been erased, despite the fact that Officer Lojacono was still under internal investigation for the incident at the time, and that the retention policy requires MPD to retain such footage for five years14.

    Body cameras do little to restore community trust when—despite video-recorded evidence of police wrongdoing—officers can continue to abuse their power with little consequence.
  2. Second, MPD has not only refused strict enforcement of its general orders regarding body-worn cameras, but it has also adamantly refused to release footage even in the face of widespread public outrage over police-involved shootings and other high-profile incidents of misconduct.

    In her 2016 State of the District address, Mayor Bowser championed D.C.’s body-worn camera program as “the most progressive – and most transparent […] in the country. Because we believe that transparency and accountability strengthen our community.”15 But this has not been the practice.

    While D.C. regulations on body-worn cameras allow for the Mayor to, on a case-by-case basis in matters of significant public interest16, release body worn camera footage, this discretion has been exercised infrequently and unevenly. The Mayor has released footage in some cases to help corroborate MPD’s statements about an incident involving a police killing17, and declined to exercise it in several high-profile cases involving police shootings and use of force against District residents18 – leading to the public presumption in those instances that MPD’s version of the events may not have been corroborated by the footage. This is both corrosive of community trust in police and demonstrates a bias in favor of protecting police officers rather than furthering the public’s interest in holding public servants accountable.

    The ACLU-DC agrees that the public release of body-worn camera footage showing minors, or showing victims or witnesses, or showing anyone in an embarrassing situation, raises legitimate concerns. However, it is possible for MPD to release videos that are of significant public interest while also protecting the privacy of the minors or witnesses in the videos. However, MPD regularly denies the release of videos or charges outrageous fees for redactions.

    MPD’s practice of denying fee-waivers in D.C. Freedom of Information Act requests is a significant barrier to transparency. Under D.C. law, agencies have the discretion to provide documents free of charge or at a reduced rate where the information being sought is considered to be primarily benefiting the general public19. However, our experience is that MPD consistently denies fee waivers which, in our view, amounts to an unlawful abuse of discretion.

    For example, the ACLU-DC had to twice appeal a denial of information for footage from troubling police incidents in the Deanwood neighborhood in summer 201820. MPD's basis for denial was that releasing the footage could jeopardize officers’ right to a fair trial or adjudication, despite the fact that no trial or adjudication was pending. Even once MPD dropped its objections to the release of the videos following a second appeal, the Department wanted to charge us for privacy redactions to the footage.

    The Council intended D.C. agencies to waive fees when furnishing the information would primarily benefit the general public. D.C.’s FOIA law should be updated to fix this.
  3. MPD’s practice of allowing officers to view body worn footage prior to submitting initial incident reports and its use of body worn cameras to record First Amendment activities furthers the public perception that body worn cameras are being used to shield officers from accountability and surveil communities with impunity.

    MPD General Orders allow officers in all cases other than a police shooting to view their body-worn camera recording of an incident “prior to completing and submitting any required reports and being interviewed by the appropriate investigative unit.”21 This means that “members who are involved in a serious use of force, in-custody death, or are the subject of a criminal investigation” can view their body-worn camera footage before recording their initial report of what transpired. An officers’ initial recollections of events be influenced by viewing the footage, or worse, an officer could proactively change his version of events. This practice also creates the perception that body cameras are being used to cover up police misconduct, especially as subjects and witnesses are not permitted to view video evidence before giving their statements.

    There also exist concerns in many communities that, instead of being a tool for much-needed oversight over police officers, body cameras will become just another surveillance device. Body cameras should not be used for surveillance of the public, especially for the purposes of intelligence-gathering during protests, demonstrations, marches or other First Amendment-protected activities, but current protections in the law do not prevent this possibility. Even if intel-gathering were not the intent at the time that video was collected, there would remain the possibility that police at some later date would be tempted to run face recognition on that footage, or use it for other, nebulous “intelligence” purposes – a word that in the police context is directly connected to a long history of surveillance and other abuses.22

Conclusion:

“The Body-Worn Camera Program Amendment Act of 2015” required the Mayor to establish and consult with an advisory group in creating the rules that would govern the BWC program.23

As an immediate next step, we recommend that the Council convene a new advisory group to review the existing regulations and make recommendations for changes that reflect what we’ve learned from the past several years of BWC program in D.C. as well as lessons learned from other jurisdictions. The advisory group that was established 2015 failed to include any representatives of communities that are the most impacted by crime and by police presence. The new advisory group should must not only include these voices but make sure to do so in a way that ensures their input is incorporated into revised regulations.

The ACLU-DC stands ready to work with the Council and all stakeholders to make this happen, and we have including additional recommendations below for changes that we’d like to see to improve the outcomes of body worn cameras as a tool for community accountability of police practices.

ACLU-DC Recommendations for Improvements to D.C.’s Body-Worn Camera Program

Enforcing Officer Compliance with Existing Law:

  1. Body camera footage should be subject to regular, randomized review to identify problems with training or officer conduct before they result in complaints or incidents. The current regulations require MPD to conduct regular audits. The D.C. Council should exercise its oversight and budget authority to enforce compliance with this requirement.
  2. In addition to auditing officers’ compliance, MPD must impose meaningful consequences for failure to activate cameras or tampering with equipment that go beyond referrals for training or additional education, especially for officers who are repeated offenders. The Council should explore whether the authority to impose discipline should be removed from MPD and placed with an independent agency like the Office of Police Complaints (OPC).
  3. OPC has access to body-worn camera footage but does not have the authority to initiative investigations into incidents if no one has filed a complaint about them with OPC. We believe this is a critical part of achieving real oversight over the actions of MPD. The Council introduced Bill 23-320, “The Special Police Officer Oversight Amendment Act of 2019” on June 4, 2019 which, in part, expands the authority of OPC to initiate investigations that are not complainant-driven24. We strongly support this provision and hope for its speedy passage.

Improving Public Access to Footage:

  1. BWC regulations should be updated to provide a presumption of release of BWC footage in matters that are of significant public interest with clear exceptions and exemptions that are enshrined in the regulations. Body camera footage for incidents of significant public interest can be released to the public with appropriate privacy redactions to protect civilians in the videos and would go a long way in demonstrating a sincere commitment to transparency.
  2. The D.C. Council should consider an amendment to the Body Worn Camera law that would appoint an independent arbiter (other than the Mayor or Police Chief) to determine when BWC footage is of “significant public interest.”
  3. MPD often uses the excuse of privacy protections as an excuse to deny release of body-worn camera footage. The question of when privacy redactions are necessary should also be reexamined and defined clearly in the regulations. In its report on the Body-Worn Camera Program Amendment Act of 2015, the Judiciary Committee noted that when “anyone could witness an incident with the naked eye,” the resulting “recordings should be public in their unredacted form unless otherwise required by law.”25
  4. Individuals have the right to view body-worn camera footage of an incident that involves themselves, in cases where a minor is killed, their parents or guardians can request to view the body-worn camera footage. If an individual above the age of 18 is killed by police officers, their next of kin should have similar access to their body-worn camera footage and this right should be made explicit in the law.
  5. The Council intended D.C. agencies to waive fees when furnishing the information would primarily benefit the general public,26 and yet, by leaving fee waivers at the discretion of the agency, MPD has been able to deny them, making access to publicly critical information inaccessible. The Council should update D.C.’s Freedom of Information Act to address this, and the Council should also investigate why MPD’s redaction fees are so high.

Privacy Protections and Combatting Public Perception of Misuse

  1. Officers involved in a critical incidents that involve use of force, in custody deaths, or those involving officers that are the subject of a criminal investigation should not be permitted to view footage of the incident before making a statement or writing an initial report, but should be permitted to watch the video after their initial statement and have the chance to offer more information and context. Officers may not remember a stressful incident perfectly, so omissions or inconsistencies in their initial account shouldn’t be grounds for discipline without evidence they intended to mislead.
  2. Privacy and data sharing provisions of the law in terms of what is shared with other government agencies are very broad and it is not clear what the specific privacy protections are, by what process the Department will require other agencies to adhere to these protections, under what circumstances MPD would enter into these agreements, or whether “other government agencies” include just local D.C. agencies or federal agencies such as Immigration and Customs Enforcement27. Nor is there any way for the public to know that the Department is complying with this provision of the regulations. There is a significant risk to the civil rights and civil liberties of District residents when the answers to these questions are not clearly defined and publicly available. The Council should pass legislation that would require transparency, meaningful public input, and D.C. Council approval for all government uses of surveillance technology, including body-worn cameras, and which would require MPD and other agencies to develop clear use policies that include detailed privacy and data sharing provisions.28
  3. While regulations allow for officers to record First Amendment assemblies, they should do so only when incidents arise, to document violations of law and police actions, as opposed to recording the presence of individual participants.29 MPD should bar MPD members’ review of video unless there’s specific reason to believe that it contains evidence of a crime or misconduct, or as part of a randomized audit, and should prohibit analysis of video with other surveillance tools, such as facial recognition technology.

1. 24 D.C.M.R. § 3900.2
2. https://dccouncil.us/wp-content/uploads/2019/01/JPS-Performance-Oversight-Responses-2018-MPD.pdf page 38
3. https://bwc.thelab.dc.gov/
4. https://medium.com/@ACLU_DC/body-cameras-wont-solve-larger-problems-with-d-c-police-9fbc497d05eb
5. https://policecomplaints.dc.gov/sites/default/files/dc/sites/office%20of%20police%20complaints/publication/attachments/Mid-Year%20FY19_Final.pdf
6. MPD General Orders on body-worn camera use require “members, including primary, secondary, and assisting members, shall start their BWC recordings as soon as a call is initiated via radio or communication from OUC on their mobile data computer (MDC), or at the beginning of any self-initiated police action.” Page 7 of MPD General Order, Body Worn Camera Program, available at https://go.mpdconline.com/GO/GO_302_13.pdf)
7. In 20% of the cases it investigated in FY18, at least one office failed to properly use their BWC, by: (1) turning it on late, (2) turning off early, (3) not turning it on at all, or (4) obstructing the camera. And in 19% of the cases it investigated, at least one officer failed to notify the subjects that they were being recorded. Page 14, https://policecomplaints.dc.gov/sites/default/files/dc/sites/office%20of%20police%20complaints/publication/attachments/AR18_Final.pdf
8. D.C. Code § 5–116.33. Body-Worn Camera Program; reporting requirements, found at https://code.dccouncil.us/dc/council/code/sections/5-116.33.html
9. https://mpdc.dc.gov/node/1116387
10. https://mpdc.dc.gov/sites/default/files/dc/sites/mpdc/publication/attachments/MPD%20BWC%20Report%20%28January%201%20-%20June%2030%2C%202018%29.pdf
11. The Office of Police Complaints does not currently have statutory authority to impose discipline on MPD officers itself. However, when an allegation of misconduct is sustained by a complaint examiner or upheld by a final review panel, MPD is statutorily required to impose discipline. “MPD defines education-based development as “an alternative to discipline.” MPD used education-based development instead of discipline in two of 85 cases requiring discipline between FY09 and FY16; 11 of 14 cases in FY17; and four of the 10 FY18 cases for which discipline had been imposed by the end of the fiscal year. There were still 10 FY18 cases that were sustained by a complaint examiner for which discipline had not yet been imposed by the end of the fiscal year.” Page 24 https://policecomplaints.dc.gov/sites/default/files/dc/sites/office%20of%20police%20complaints/publication/attachments/AR18_Final.pdf
12. https://wtop.com/dc/2016/09/dc-officers-body-camera-wasnt-on-during-fatal-shooting/
13. https://www.wusa9.com/article/news/local/dc-police-body-cam-video-of-questionable-search-purged/65-608071618
14. The Metropolitan Police Department’s body worn camera (BWC) policy requires videos resulting in internal investigations to be retained for 5 years. See https://mpdc.dc.gov/page/bwc
15. https://mayor.dc.gov/node/1149292
16. According to the regulations, “examples of matters of significant public interest include, but are not limited to, MPD office-involved shootings, significant use of force by an MPD officer, and assaults on an officer requiring hospitalization.” 24 DCMR Chapter 39 https://dcregs.dc.gov/Common/DCMR/RuleList.aspx?ChapterNum=24-39
17. Such as when MPD officers fatally shot Gerald Javon Hall. See https://dcist.com/story/17/01/04/javon-hall-camera-footage/
18. See https://www.wusa9.com/article/news/local/dc/dc-mayor-rejects-calls-to-release-body-cam-video-from-police-clashes/65-578753689
19. D.C. Code § 2-532(b) provides that “Documents may be furnished without charge or at a reduced charge where a public body determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.”
20. https://www.acludc.org/en/cases/sheriff-road-police-encounters-foia-request
21. MPD General Order of Body-Worn Camera Program, page 20, available at https://go.mpdconline.com/GO/GO_302_13.pdf.
22. https://www.aclu.org/blog/privacy-technology/surveillance-technologies/why-are-dc-police-keeping-their-body-cameras
23. D.C. Code § 5–116.33
24. http://lims.dccouncil.us/Download/42714/B23-0320-Introduction.pdf
25. D.C. Council Comm. on the Judiciary, Report on Bill 21-0351, at 16 (2015) available at http://lims.dccouncil.us/Download/34469/B21-0351-CommitteeReport1.pdf
26. D.C. Code § 2-532(b) provides that “Documents may be furnished without charge or at a reduced charge where a public body determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.”
27. 24 DCMR 3903.2, states “The Department may enter into agreements with other government agencies to provide access to the BWC recordings; provided, that any such agreement shall require the other agency to adhere to the individual privacy protections contained in these regulations or any policy directives issued by the Department.”
28. The Community Oversight of Surveillance-DC, of which the ACLU-DC is a member, has model legislation to address this issue. See https://www.acludc.org/en/community-oversight-surveillance-dc
29. “MPD officers may record First Amendment assemblies for the purpose of documenting violations of law and police actions, as an aid to future coordination and deployment of law enforcement units, and for training purposes; provided, that recording First Amendment assemblies shall not be conducted for the purpose of identifying and recording the presence of individual participants who are not engaged in unlawful conduct.”

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