Bills 21-0351, 21-0356, 21-0327 Police "Body Camera" Bills

Statement on behalf of the

American Civil Liberties Union of the Nation’s Capital

by

Monica Hopkins-Maxwell

Executive Director

Before the

Committee on the Judiciary 

of the

Council of the District of Columbia

Bill 21-0351, the “Body-Worn Camera Program Regulations Amendment Act of 2015”

Bill 21-0356, the “Public Access to Body-Worn Camera Video Amendment Act of 2015”

and

PR 21-0327, the “Metropolitan Police Department Body-Worn Cameras Approval Resolution of 2015”

Wednesday, October 21, 2015

Thank you for the opportunity to present testimony on the Metropolitan Police Department’s (MPD) Body-Worn Camera (BWC) Program. My name is Monica Hopkins-Maxwell and I am the Executive Director of the American Civil Liberties Union of the Nation’s Capital (ACLU-DC). I am here today on behalf of our more than 3,000 members across all eight wards in the District of Columbia.

The ACLU-DC applauds your leadership, Councilmember McDuffie, in the implementation of the MPD BWC Program. We are pleased that you directed the Mayor to establish and consult with an advisory group to provide recommendations for the proposed rules regarding the BWC program. Moreover, we are delighted that ACLU-DC was chosen to be a part of the advisory group and have been diligently working to contribute valuable feedback.

The ACLU-DC is an organization that balances the desire for police accountability with protecting privacy.  With good laws in place, recording of police-civilian encounters will promote police accountability, deter officer and civilian misconduct, and provide objective evidence to help resolve civilian complaints against police without significantly infringing on privacy.

I.                   Overview

BWCs are a mechanism to hold police accountable. The public requires assurance that MPD is being monitored just like any other District agency. However, it is important to remember that BWC are only tools — whether they are helpful or harmful depends on how they are used. Strong policies and laws are crucial to ensure they further the goals of improved transparency and accountability, better policing, and greater trust in law enforcement. Video does not always capture the full story, and having video will not resolve every question. Many issues in policing that need addressing — from racial profiling and implicit bias, training on interactions with people with mental illness, limitations on surveillance, the availability of data on police actions and uses of force, transparency in officer discipline, and strong oversight and accountability mechanisms — require looking beyond individual incidents to patterns and practices. BWCs may help police accountability, but they are only a small part of the reforms we need.

II.                Proposed Ruling Making

The ACLU-DC has several comments regarding the Mayor’s proposed rulemaking. I will discuss each of these areas in turn.

A.    General Provisions

3900.4. 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.

BWCs should not be used for surveillance of the public, yet General Provision 3900.4 borders on using BWCs for surveillance. The general nature of recording may chill First Amendment activities and participation.  The people being recorded will not know the purpose for which they are being recorded.  Recording during First Amendment activities should only occur if there is a police-citizen interaction that specifically warrants it.

3900.6. The Mayor may, on a case-by-case basis in matters of significant public interest and after consultation with the Chief of Police and the U.S. Attorney’s Office, release BWC recordings that would otherwise not be releasable pursuant to a FOIA request. Examples of matters of significant public interest include, but are not limited to, MPD officer-involved shootings, significant use of force by an MPD officer, and assaults on an officer requiring hospitalization.

General Provision 3900.6 speaks to whether the Mayor should be able to release footage containing matters of significant public interest. The issue here is not that the Mayor should be able to release them. The same justifications for the Mayor being able to release them should make them subject to the Freedom of Information Act (FOIA), which I will discuss further below.

B.     Retention of Body-Worn Camera Video

3901.2. The Department shall, through a policy directive, establish longer retention schedules, of not less than three years, for a BWC recording that contains the following types of footage: other categories of footage that the Chief of Police believes should be retained.

This category is way too vague and subject to significant abuse. It should be stricken.

C.    Access to Body-Worn Camera Video

3902.1. The Department shall make unredacted BWC recordings available to the United States Attorney’s Office, the Office of the Attorney General, and the Office of Police Complaints.

This does provide any guidelines for how MPD shall make unredacted BWC recordings available. As we have seen in the past, there has been tension between MPD and the Office of Police Complaints with regards to information sharing. The ACLU-DC suggests including stronger language here, including a specific time period in which such recordings should be made available.

3902.4. The Department shall, through a policy directive, develop procedures to implement this chapter and District law

This is highly problematic and sets a dangerous precedent by allowing MPD to regulate public access. Public access to government created documents, which is what BWC footage is, is regulated by FOIA and should remain that way. Allowing MPD to develop procedures to regulate access runs counter to building public trust, accountability and transparency – whether actual or perceived.

3902.6 The Department may form research partnerships with academic institutions and organizations to examine the impact of the BWC program on community-law enforcement interactions; provided, that any such partnerships shall require the protection of any information or unredacted BWC recordings received by the researchers.

Access for researchers and academic institutions should not be beholden to partnering with MPD. Allowing access to researchers, with the proper MOU and privacy controls/protection of information, allows analysis of the strategies, tactics and system of policing. However, allowing MPD to pick and choose who they form research partnerships with to gain access to BWC footage undermines public trust.

D.    Body-Worn Camera Audits and Data Protection

3903.2 The Department shall regularly monitor the business practices of any third-party entity providing services to the BWC program to ensure individuals’ privacy rights are protected.

This raises several questions. How will MPD regularly monitor the business practices of any third-party entity providing services to the BWC program to ensure individuals’ privacy rights are protected? Will it be randomized audits or constant screening? What happens if there is a violation of privacy rights? What is the penalty? This provision should provide such standards to ensure that individuals’ privacy rights are protected from the onset.

3903.3. 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.

The broadness of this is particularly alarming. Does this mean that MPD may provide BWC recordings to any government agencies or only District government agencies? What about a scenario where the United States Immigration and Customs Enforcement (ICE) requests footage to scan for illegal immigrants and where they live, work, or who they associate with? We just saw a congressional proposal that would require MPD to provide ICE with information about individuals’ immigration status.[1] We should not open the door for abuse here.

3903.5. The individual who makes a BWC recording shall not have access to delete the recording.

The individual who makes a BWC recording shall also not have access to the recording prior to filling out any initial reports related to an incident or arrest that appears on the recordings. Officers should 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. This would provide the fullest picture of what happened without tainting officers’ initial recollection or creating the perception that body cameras are being used to cover up misconduct, not hold officers accountable. If an officer watches the video and discovers that certain elements that put them in a poor light happened not to have been captured—or that some moments when the subject is blocked, blurred or out of the frame provide an opportunity for the officer to say something happened—then the officer will feel at liberty to shade and color their account of events, if not to lie outright.[2]

Police do not show video evidence to other subjects or witnesses before taking their statements. Providing officers an advantage other witnesses are not afforded and an opportunity to make their first statement completely consistent with video testimony affects the credibility of officer statements and the integrity of investigations whether the officers actually lie or not.[3] Even where officers attempt to tell the full truth, as we hope and expect the vast majority will, cognitive science demonstrates that, because human memory is malleable, viewing the video— especially viewing multiple videos, multiple times—will confuse the officer’s original, percipient memories of the incident.[4] Allowing officer review gives a one-sided advantage to its own officers, creates the impression of bias, and undercuts the reliability of its own investigations.[5]

E.     Omitted Provisions

The ACLU-DC notes that significant provisions of the MPD BWC Program General Order (GO-SPT-302.13) were not included in the proposed rulemaking. We believe that this creates opportunity for abuse and limits the amount of necessary oversight. Specifically, the proposed rulemaking does not include matters such as turning the BWC on and off, notice of recording, BWCs in schools, and accidental recordings, among others. We hope that the DC Council takes this into consideration when drafting final rulemaking.

III.             Public Access to BWC Video

The ACLU-DC recognizes that setting the right balance between privacy and transparency in public access is difficult. We also believe that in utilizing a BWC program, MPD is making a statement that it believes the actions of its officers are a matter of public record.[6] BWC footage should be made available to the public upon request—not only because the videos are public records but also because doing so enables police departments to demonstrate transparency and openness in their interactions with members of the community.[7] Moreover, giving people video of their own encounters with MPD does not raise privacy concerns. Civilians recorded by body cameras should unquestionably have the right to obtain copies of those recordings for however long MPD maintains them.

The ACLU-DC has several comments regarding the Mayor’s proposed amendments to FOIA. I will discuss each of these areas in turn.

Section 2(a)(1)

Requests involving video footage recorded by the Metropolitan Police Department shall identify with specificity the location, date, and approximate time of the incident or event that may have been recorded.

The ACLU-DC believes that this language is unnecessary. Not only are reporters and agencies who regularly file FOIA requests aware of this, this information is included in the general information on how to file a FOIA – no matter what agency from which the public is requesting it.[8]

Section 2(a)(2)

A public body, upon receiving a request that reasonably describes video footage recorded by the Metropolitan Police Department shall, within 45 days (except Saturdays, Sundays, and legal public holidays) of the receipt of any such request, either make the requested video footage accessible or notify the person making the request of the public body’s determination not to make the requested video footage or any part thereof accessible and the reasons therefor.

The time period of 45 days is excessively long. Currently, it may take MPD up to a year to fulfill requests. The FOIA statute already would allow MPD ample time to find the video and inform the requester that it will provide the video in whole or in part, or that the video is exempt – or contact the requester regarding an extension of time. This is an open invitation to abuse time limits.

Section 2(a)(3)

For video footage covered by subsection (c)(2) of this section, the inability to procure a vendor to perform the redactions within the original 45 days.

How do we know that MPD is going to have to procure a vendor for each and every FOIA request that comes in, when it comes in? They should not be procuring vendors to reply to individual FOIA requests. The ability to pull and copy video is part of every BWC software system the ACLU has seen.

Section 2(a)(4)

“Request” means a single demand for any number of documents made at one time to an individual public body; provided, that in the case of a request for video footage recorded by the Metropolitan Police Department, the demand shall identify with specificity the location, date and approximate time of the incident or event that may have been recorded.

Again, the ACLU-DC believes that this language is unnecessary. Not only are reporters and agencies who regularly file FOIA requests aware of this, this information is included in the general information on how to file a FOIA – no matter what agency from which the public is requesting it.[9]

Section 2(b)

Information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, including any video footage recorded by the Metropolitan Police Department: Related to an incident involving domestic violence, stalking, sexual assault or assault.

The phrase, “including any video footage recorded by the Metropolitan Police Department,” should be stricken. The phrase, “except where the apparent victim of the assault is requesting the disclosure and the apparent perpetrator of the assault was an on-duty member of the Metropolitan Police Department or other municipal law enforcement agency,” should be added after the word “assault.” While this section provides protection when the incident involves domestic violence, stalking, sexual assault or assault, it does not include crime victims or witnesses to crimes. We know that there is a risk of retaliation against witnesses to crimes. These categories should be added.

IV.             Conclusion

 Since October 2014, the ACLU-DC has participated in countless meetings with MPD, the Office of the Attorney General, the United States Attorney’s Office, the Public Defender Service, members of the DC Council, members of the public, and other stakeholders to discuss all of the intricacies involved with the MPD BWC program. Thank you for allowing us to provide our feedback on these very important policies. We look forward to continue working with you to produce the most robust BWC program in the country.