Body-camera policy is always a tricky balancing act of protecting privacy and holding cops accountable. You want the public to have reasonable access to recordings of most police interactions with the public, but not of things like strip searches or conversations with confidential informants.
There's little disagreement that the Durham Police Department's current proposal—draft policy number nine, deputy police chief Anthony Marsh told the city council last week—is responsive to privacy concerns.
The accountability part is another matter. The DPD still hasn't clarified the path by which the public can actually see the footage the cameras capture—and the cops want more restrictions than some council members seem inclined to give.
At the Thursday work session, newly elected councilman Charlie Reece, who was part of the push for police reform that ultimately led to body cameras, paraphrased concerns he had expressed to Marsh in an email the day before: "The primary reason that our community supports police-worn body cameras is to ensure police accountability where there are questions about the use of force by a DPD officer."
Body cameras were on the agenda because of a simple contract purchase. The DPD has identified the vendor it wants to buy from—a company called VieVu—and is asking the council to sign off on spending $366,000. (A vote is scheduled for February 15.) But Reece said he wouldn't support the purchase with the policy in its current shape.
Draft nine, however, is nonetheless an improvement over draft one, which declared that the recordings constituted "records of a criminal investigation and/or personnel records and are not public records, pursuant to state statutes." As the INDY reported last month ["No Watching the Watchers," Jan. 13], these are hardly airtight justifications for refusing to release footage. The personnel-records argument is wide open for a judicial challenge, and classifying all body-cam footage as part of a criminal investigation is preposterously broad. A new sentence has been added to the latest draft: "Inspection or review may be allowed at the discretion of the Chief of Police, the City Manager, and/or City Council who may elect to release such records in response to a compelling public interest."
"While we appreciate the new language, we'd like to see more details regarding how that process would work, and how 'compelling government interest' is defined," says Susanna Birdsong, policy counsel for the North Carolina ACLU.
Councilwoman Jillian Johnson says she'll also oppose the purchase until the DPD firms up the accountability issue. The process for ordinary citizens to access footage is too onerous as currently laid out, she says. "I think any video where there's use of force by an officer should be automatically flagged."
In this scenario, Reece says, officers uploading body-cam footage after their shift would be required to check a box on encounters where force was used. Any video that falls into this category would, within a certain period of time, become available to the public, cases involving juveniles and ongoing criminal investigations excepted.
At the Thursday meeting, Marsh and interim police chief Larry Smith were prepared for the criticism. Smith brought up the example of a person who acts out while being arrested for a DUI. "It's often not a reflection of who that person really is, but it'd [the video] be out there online for five, ten years," Smith said. He added that the visual optics of physical altercations could distort reality. "Now matter how justified the officer's behavior may be, it just does not look good," he said. "And I worry about that."
Marsh argued that there were already several mechanisms in place to prevent malfeasance. Officers can't delete, alter, or redact a video, and they're prohibited from obtaining personal copies for any reason. Videos are provided to the district attorney's office via nonsworn staff. And officers who don't record encounters will face disciplinary actions.
"The legislature has built a very balanced pathway," Marsh said. "Go ask for a court order. If you get it, we give [the video] to you. If it's a large enough issue, the council can direct the chief to release it. A lot of these things being requested already exist."
Councilman Steve Schewel says he, too, won't support the contract unless the administration builds in more police accountability, but he expects the DPD to sort things out before the council votes next week.
"We've been meeting with them regularly, and my experience is that they're listening," he says. "They're doing a good job. But I think the main thing here is that we need the presumption that these videos are public record unless there's a good reason otherwise, and not the other way around."
This article appeared in print with the headline "Camera Obscura"