D.C. Mayor Muriel E. Bowser's (D) police body camera proposals ought to concern advocates of increased transparency and accountability in law enforcement.
Policies on police body cameras have been met with controversy over how best to protect privacy rights while providing transparency in law enforcement. To address this problem, Bowser in August proposed releasing body camera footage recorded outside and allowing citizens to view footage in which they appear.
These are sensible policies. There is a weak expectation of privacy in public, and citizens should be able to view footage of their own interactions with the police. Unfortunately, Bowser’s latest body camera proposals betray this even-handed approach.
Under her latest set of proposals, footage of all assaults would be exempt from release. In addition, a citizen who has filed a complaint against an officer that results in that officer being charged would not be allowed to view footage of his or her encounter with police. Nor would citizens charged by an officer be permitted to view the body camera footage. Footage related to filed charges could be released via orders from the mayor and police chief or through legal procedure. These policies are misguided and do not promote transparency in law enforcement. Best practices for body cameras promote transparency and accountability while also protecting citizens’ privacy.
Body camera footage should be divided into either “flagged” or “unflagged” categories, a distinction proposed by the American Civil Liberties Union’s Jay Stanley. Video showing arrests, detentions, use-of-force incidents or events that are the subjects of complaints should be flagged. In addition, members of the public should be able to flag body camera video of themselves.
Citizens should be able to request flagged footage filmed in an area in which there is a weak expectation of privacy, such as on a street corner or in a restaurant. Body camera footage that is unflagged should be available only to subjects of the footage and their legal representatives.
Like Bowser, I agree there should be different rules in place for the release of body camera footage captured inside a private residence, where there is a strong expectation of privacy.
Footage of an area where there is a strong expectation of privacy should not be available to members of the public, regardless of whether the footage is flagged or unflagged. However, the subjects of such footage and their legal representatives should have access to the video. This would ensure that crime victims do not have to fear footage from their home's interior being released to the public. It would be regrettable, for example, if a body camera policy dissuaded victims of domestic violence from calling the police because they fear such footage being released to the public.
Of course, assaults do sometimes occur in public, and officers at the scene will make arrests. In cases such as this, the body camera footage should be flagged and made available to the public, while the police department should be able to redact some of the footage in order to protect the identities of those involved. In instances in which the release of a video is not clearly in the public interest, some of the redaction costs should be incurred by the requesters.
Bowser's latest body camera proposals are a disappointing backtrack. Her initial proposals, while not perfect, compared favorably to other body camera policies in place across the country. There are serious privacy concerns that must be addressed when considering body camera policies, but exceedingly restrictive policies defeat the purpose of increasing transparency and accountability that mandating police body cameras was supposed to achieve in the first place.