21st Century Policing: Ensuring that Transparency Does Not Undermine Public Safety

WDC Journal Edition: Winter 2015
By: Samuel C. Hall, Jr., Crivello Carlson, S.C.

There can be little doubt that Wisconsin’s strong presumption in favor of disclosure of public records is of paramount importance. The disclosure of public records has long been one of the most effective ways to develop and maintain trust between those elected to govern and the electing public. In the context of modern policing, building this sort of trust with the public is perhaps even more important than in other government sectors. Sir Robert Peel, a nineteenth century conservative prime minister of the United Kingdom, is largely recognized as the founder of modern policing.1 In developing the world’s first civilian police force that would serve a democratic population, Peel constantly instructed that a civilian police force could only be successful if the democratic population consented to being policed.

Stated differently, effective modern policing fundamentally relies on building the public’s trust such that the general public, as a whole, accepts the authority of law enforcement. This is so because, for the first time in history, Peel’s civilian police force derived its authority from the people, as opposed to the prior military-based police forces that derived authority by creating fear or oppression. However, without the general public trust and consent, Peel and scholars that followed him questioned the effectiveness of a civilian police force.2

To be certain, everyone has an interest in ensuring that the people of Wisconsin are protected by effective police departments that rely on the public’s trust for their source of authority. However, in Wisconsin and nationally, the police face challenges to the public trust that are vital to the success of our police force. The outlook is likely not as grim as some suggest—a vast majority of the public continues to support law enforcement today.3 However, there is no denying that law enforcement faces a challenging climate. The increased use of police body cameras and the transparency that follows is likely an important step in recapturing a higher level of the public’s trust and ultimately the continued consent for law enforcement to police our society.

The Case for Body Cameras from a Law Enforcement Perspective

While not all in law enforcement have embraced body cameras, let me outline the case for them. Cameras are already everywhere. We are recorded entering parking lots, businesses, apartment buildings, and even walking down the street. The American Civil Liberties Union suddenly started to embrace surveillance with the creation of its “mobile justice app,” which automatically sends user video recordings of police contacts to the ACLU. However, our laws require that police conduct be evaluated from the officer’s perspective—not from the perspective of a video taken from above the scene.4 It is now a foregone conclusion that many police encounters are going to be recorded in some fashion. With that being the case, the recordings should originate from the perspective of the officer—the legal perspective from which officer conduct is evaluated under the Constitution.

Police body cameras have also eviscerated many false claims of misconduct. The most documented incident occurred in Albuquerque after a young woman was arrested for a DUI. During booking, the arrestee alleged that she was sexually assaulted by the officer that arrested her. Instead of the officer being fearful that this sort of allegation could end his career, the officer had a brief moment of laughter. We know the officer laughed because his laughter was recorded on his body camera, which had also recorded an entirely lawful stop, search, and arrest, disproving the allegations.5 This scenario has repeated dozens of times.

From the perspective of police accountability, one need not look further than the recent indictment ofUniversity of Cincinnati police officer Ray Tensing, who shot Samuel DuBose in the head during aroutine traffic stop while DuBose was seated in his vehicle with his seatbelt on. Tensing claimed that DuBose tried to drive off while Tensing’s body was partially inside of the vehicle, dragging Tensing’s body and creating a risk of serious bodily harm that justified the use of deadly force. However, videofootage from Tensing’s body camera disproved this, showing that Tensing’s body was not dragged. Importantly, Tensing likely would not have faced criminal charges in the absence of the body camera footage. While empirical research is just beginning in this area, there are initial findings suggesting aconnection between the use of body cameras and potentially significant decreases in the use of force and citizen complaints.6

While police body cameras will undoubtedly provide important evidence in police use of force cases, those incidents will be only a small fraction of what is recorded. We know from experience that the overwhelming majority of police contacts with the public are positive and video footage capturing those encounters could be an important aspect in solidifying the public’s trust.

Potential Drawbacks of Police Body Cameras and Legislative Solutions

Surely mindful that body cameras will not be the panacea for all police-public disputes, many law enforcement departments have nonetheless already implemented body camera programs. However, despite broad calls in cities across America, we can hardly fault the departments who have proceeded more cautiously. Local governments are being asked to spend millions of dollars without an understanding of how best to use this technology. Just as we would not provide another weapon for an officer to use without protocols on how the officer should use the new device, many police chiefs and sheriffs are prudently waiting for more clarity on how footage from these cameras will be obtained, stored, and used before implementing body camera programs.

The use of body cameras is fraught with potential drawbacks for both the police and the public. Many of the concerns relate directly to Wisconsin’s public records law and uncertainty over how these multimedia records should be obtained, retained, and potentially disseminated to the public.

There is an intricate balance between the public’s right to see the work of its police and the fact that sometimes the public is best protected by police work done without a camera rolling. For example, some victims of sensitive crimes would understandably be reluctant to report and describe their incidents to police if they knew that they were being recorded for all of cyberspace to eventually see. Should officers conducting victim interviews be permitted to turn their cameras off to protect the victims? How should an officer approach a situation where a reluctant witness wants to help, but is only willing to help if anonymity is guaranteed by going off- camera? Should officers record when conducting an interview in a hospital room or in someone’s home during an intimate domestic disturbance? Transparency must not be allowed to undermine public safety.

Another concern relates to retaining the multimedia files. Consider the DUI arrest in New Mexicodiscussed above: what if the sexual assault complaint was not lodged until 90 days or even 3 years after the incident? Would the local government have incurred the significant cost of retaining the video record of a routine stop and DUI arrest for that long? Closer to home, the City of Milwaukee and over 125 police officers recently faced litigation for allegedly conducting strip searches of over 70 individuals in the streets of Milwaukee. Many of the alleged incidents did not lead to arrests or citations and lawsuits were not filed until years later. Under many policies currently under review, video footage from these incidents would not have been preserved.

In Wisconsin, there is a 6 year statute of limitations for civil rights lawsuits7 —we owe it to our officers to preserve this evidence to protect them from baseless claims. For those who would argue that it would be too expensive to retain these records for 6 years, it is worth noting that the legislature has the authority to reduce the civil rights statute of limitations to three years, which would be consistent with the majority of other states.

In light of these concerns, it is important to highlight why state legislation in Wisconsin is needed. If the status quo remains and no legislation is adopted, individual law enforcement agencies will adopt unique policies with rules that could vary on things like: (1) whether body cameras can ever be turned off; (2) in what circumstances body cameras can be turned off or when they should be turned on; (3) how long audio/video should be preserved; (4) what materials are subject to public disclosure; and (5) when audio/video should be subject to public disclosure.

To be sure, without guidance from the state, there are still likely to be some common sense aspects of policies that are widely adopted by all agencies throughout Wisconsin. However, without state legislation, there will undeniably be variation in policy details. This does not mean that some agencies will be right or wrong—it will simply be the product of varying capabilities of individual departments and priorities of the civilian police and fire commissions that provide oversight of some agencies.

As noted above, an effective police force is dependent on maintaining the public’s trust and consent to be policed. Make no mistake: variations in police body camera policies will breed distrust. In the wake of a police incident, the public will be confused if multimedia records are not obtained and/or released by one agency based on its policy, when a neighboring jurisdiction would have obtained and/or released the materials based on its policy. Nurturing the public’s trust and consent is of the utmost importance in modern policing and if the state opts to do nothing to assist with developing a framework that provides consistent standards, the state will become complicit in the public’s distrust that will almost certainly follow.

Adoption of Police Body Camera Legislation in Other States

Other states around the country are moving quickly to address these issues. Wisconsin is in the minority—we are one of twenty states that have failed to propose or adopt legislation related to police body cameras and the public disclosure of associated records. In 2015 alone, ten states (Arizona, Florida, Georgia, Maryland, Nevada, North Dakota, Oklahoma, Oregon, South Carolina, and Texas) passed legislation addressing the use of police body cameras and the public disclosure (or lack thereof) of those records.

The legislation adopted by other states has varied significantly. For example, South Carolina has adopted legislation that entirely exempts police body camera multimedia8 from public disclosure under public records law. Georgia has already limited who can request police body camera video footage and the legislature seems poised to exempt police body camera multimedia from public disclosure altogether.9Maryland has essentially adopted the ACLU’s model legislation.10

It appears that all states that have adopted legislation have allowed for law enforcement officers to use discretion to turn off their cameras in certain types of encounters. Even the ACLU model policy allows for the video to be turned off during certain enumerated situations. Many states, including Florida11 and North Dakota12 (by a nearly unanimous vote in the legislature) have avoided a broad exemption from public disclosure, but have instead restricted public access of video taken from inside of a home, hospital room, or other places where there is a reasonable expectation of privacy. Additionally, nearly all states that have adopted legislation have required that the multimedia be retained for at least the period of time in which complaints may be made against law enforcement officers.

Suggestions for Wisconsin Legislation

Wisconsin has a proud history favoring public disclosure.13 That should not come under attack through the use of police body cameras. After all, some of the strongest arguments for using police body cameras in the first place rely on the dissemination of the video to foster the public’s trust. That could hardly be accomplished if Wisconsin followed the lead of states like South Carolina and Georgia who categorically exempt police body camera video from public record disclosure. However, as noted above, Wisconsin should not simply sit on the sideline either—a nuanced statutory approach is necessary.

At a minimum, legislation in Wisconsin should include the following: (1) a requirement that any department using police body worn cameras maintain a policy consistent with the statute and conduct sufficient training; (2) clear authority for law enforcement officers to use their discretion to turn their cameras off in certain non-confrontational situations (e.g., interviewing sexual assault victims or other victims, discussions with confidential informants, etc.); (3) a limited exemption from public records law for video taken in a private space, such as inside of home; (4) an authorizationforofficerstoreviewthemultimediainadvanceof preparingreports;(5)arestrictiononthetimingof the release of video that may be used as evidence of the commission of a crime; and (6) a requirement that the multimedia be retained for at least as long as law enforcement officers may be subject to lawsuit.

Conclusion

Body cameras are here to stay. The United States Senate is currently considering a bill that would provide a total of $500 million in funding to local governments between 2016 and 2021 to purchase body cameras.14 While many in the public and media are anxious for the broader use of police body cameras, we should not rush into the implementation of these cameras until best practices that protect public safety and privacy rights are fully vetted. Law enforcement should keep up with new technology, but body cameras, like other technological advances, must be implemented in a way that does not interfere with effective policing.

Samuel C. Hall, Jr. is a shareholder at Crivello Carlson, S.C. He received his bachelor’s degree and law degree from Marquette University. During law school, Sam was a St. Thomas More Scholar for three years and was a member of the Marquette Sports Law Review. His principal practice focuses on civil rights litigation, municipal law, and appellate practice.

Sam has successfully defended many government officials, law enforcement officers, and municipalities in cases involving alleged civil rights violations. Sam is admitted to practice and has significant experience representing clients in Wisconsin, Illinois, and New York state courts, the United States Supreme Court, the Third Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Seventh Circuit Court of Appeals, and the federal district courts in Wisconsin, Illinois, New York, Texas, and Pennsylvania.

Sam received an “AV-Preeminent” peer rating by Martindale-Hubbell and has also been selected for the Wisconsin Super Lawyers Rising Stars list several times for his civil rights defense and appellate work. Based on his experience representing law enforcement officers, Sam has been a keynote speaker and lecturer for various law enforcement organizations and also served as an instructor for a graduate degree level course offered by the University of Wisconsin for law enforcement command staff.

References

1 See Metropolitan Police Act of 1829, 10 Geo. 4, C.44 (1829).
2 Charles Reith, New Study of Police History 140 (1956).
3 A recent Rasmussen poll found that 72% of Americans have a favorable view of the police in the area where they live. Rasmussen Reports, 58% Think There's A War on Police in America Today, available at: http://www. rasmussenreports.com/public_content/lifestyle/general_ lifestyle/august_2015/58_think_there_s_a_war_on_ police_in_america_today (last accessed Oct. 1, 2015).
4 Graham v. Connor, 490 U.S. 386, 390 (1989).

5 YouTube, Body Cam Refutes Sexual Assault Claim Against NM Officer, available at: https://www.youtube.com/ watch?v=vCidpHYLmtE (last accessed Oct. 1, 2015).
6 Michael D. White, Police Officer Body-Worn Cameras: Assessing the Evidence 17 (2014), available at: https:// ojpdiagnosticcenter.org/sites/default/files/spotlight/ download/Police%20Officer%20Body-Worn%20 Cameras.pdf [https://perma.cc/ER9F-BCBE]. Other studies include an evaluation at the Mesa Police Department in Arizona, in which fifty officers were outfitted with body cameras for one year and were compared to officers who did not wear such cameras, id. at 17-18, and an ongoing study at the Phoenix Police Department that is testing “whether the cameras deter unprofessional behavior from officers, lower citizen complaints, reduce citizen resistance, and disprove allegations against officers,” id. at 18.
7 Wis. Stat. § 893.53; see also Hemberger v. Bitzer, 216 Wis. 2d 509, 574 N.W.2d 656 (1998).
8 South Carolina Act 71 (2015).
9 Georgia Act 173 (2015); see also Georgia House Bill 32 (2015).
10 American Civil Liberties Union, A Model Act for Regulating the Use of Wearable Body Cameras by Law Enforcement, available at: https://www.aclu.org/model-act-regulating- use-wearable-body-cameras-law-enforcement (last accessed Oct. 1, 2015).
11 Fla. Stat. § 119.071.
12 N.D.C.C. § 44-04-18.7.
13 See Wis. Stat. § 19.31.
14 Safer Officers and Safer Citizens Act of 2015, U.S. Senate Bill 1987 (2015).