How much is that public record worth to you?

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

A new Pennsylvania bill would make body camera video a tool for prosecutors — not the public. Photo via Flickr user North Charleston.

Pennsylvania is swiftly pushing forward a very bad bill — Senate Bill 560 — that will seriously hamper civilians’ ability to obtain footage from police body-worn cameras. The Appeal has addressed body camera issues before (this week, even), but SB560 is quickly progressing. A vote could happen in Harrisburg as soon as next week. So we’re gonna address it again.

Body cameras have been widely available to the policing market since about 2007. Some departments started using them early, such as the BART Police Department after Oscar Grant’s killing in 2009. But a groundswell of interest didn’t emerge until August 2014.

When white police officer Darren Wilson shot and killed a black teenager named Michael Brown in Ferguson, Missouri, Wilson’s story — what he said about why he was justified in killing Brown — was questionable. Protests erupted nationwide. You know the story.

Among many other conversations about policing and race that emerged in the wake of that shooting, one focused on body cameras. There was, among many who paid attention, a consensus that body camera video would have provided an unbiased perspective in Ferguson that was sorely lacking. Both police and civilians seemed to concur: If body camera footage could tell the real story — and be shown to the public — then there would be less of a question about what happened between Wilson and Brown. In general, there would be less testilying by cops. There would be fewer false reports of police misconduct. It would be a win for everyone.

And indeed, that’s where things went: Thousands of police representatives began pushing their leaders to purchase body cameras, and so did civilians. The body camera market expanded exponentially. New companies were founded, and old police companies rushed to get into the business. Tens of millions in taxpayer dollars were made available in federal funding for body cameras. The market exploded — in large part because both police and civilians seemed to agree that body camera footage could hold both cops and civilians accountable.

Police leaders were, in fact, at the forefront of this movement toward transparency through police body cameras.

“A police department that deploys body-worn cameras is making a statement that it believes the actions of its offcers are a matter of public record,” wrote Chuck Wexler, in a pioneering 2014 document by the Police Executive Research Forum that encouraged best practices for body camera use. Wexler continued: “body-worn camera video 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.”

Fast forward to now. Pennsylvania’s legislature is working to walk back one of the main premises that made body cameras agreeable to both civilians and police in the first place: their accessibility to the public.

Senate Bill 560 — which I implore you to read — will do a number of things that run counter to basic principles of transparency. It will insure that body camera video falls outside the state’s Right To Know Law, for one thing — meaning that the rules allowing civilians to obtain policies, meeting minutes, and even internal emails sent to and from government employees, will not apply to video produced by police.

SB560 won’t let any civilian request body camera video that’s more than 60 days old.

If a request is denied — for reasons as vague as the video “contains potential evidence” — it will cost civilians $125 just to appeal the decision. And of course there’s no guarantee that they’ll succeed in getting the video after the appeal.

Pennsylvania is not alone in pushing a transparency-killing law to limit access to body camera video. In September last year, North Carolina passed into law a similarly terrible bill.

But we don’t need to follow in that state’s footsteps.

If Darren Wilson had been wearing a body camera in 2014 — and if Missouri’s laws were the same as what Pennsylvania’s legislature hopes to pass — it’s unlikely that the video from his interaction with Michael Brown would have been available to the public. Protests would have erupted. The cameras would have been useless.

Having such a law would, indeed, make body cameras essentially useless for civilians. They would instead be tools for cops and district attorneys to put more people behind bars.

That’s not what anyone protesting in Ferguson wanted in 2014, and it’s not what anyone still paying attention wants today.

SB560 is a bad bill that should vanish. Stay tuned to aclupa.org to find out how you can help make that happen.

PLUG

(An ACLU-PA criminal justice event you should know about.)

Join us in Philadelphia to #DECARCERATEDA.

  • ACLU-PA: “District Attorney Candidate Forum — Philly DA for the People”

Philly needs a district attorney who will bring a new vision for justice. Come hear what the candidates running to be the next Philadelphia district attorney have to say about ending cash bail, bringing transparency and accountability to the office, protecting our immigrant communities, and more.

WHEN: Tuesday, April 18, 6 p.m. — 8 p.m. (Event will start promptly at 6 p.m.)
WHERE: Arch Street United Methodist Church, 55 N Broad St, Philadelphia, PA 19107

ASL interpreter and Spanish-language interpreter will be provided.

Free child care will be available.

Sponsored by the Philadelphia Coalition for a Just District Attorney, a diverse set of groups representing tens of thousands of Philadelphia voters and communities. This coalition is working to hold all the district attorney candidates accountable to their communities’ fundamental need for justice and respect. More about the coalition and its platform is available here: www.phillydaforthepeople.org

EXCERPTS

(Criminal justice news that could use a second look.)

How effective was a $3.5 million grant to lessen Philly’s incarceration problem? Photo via The Inquirer.

  • The Inquirer: Has a bold reform plan helped to shrink Philly’s prison population?

“The number of inmates has fallen nearly 12 percent, from 7,486 last April to 6,603 as of last month, according to data released Wednesday by the Managing Director’s Office. The prison population numbered as many as 8,301 as recently as early 2015. The dropoff has earned praise from even hardened critics of the various arms of the local justice system. This has been no small task. Philadelphia has the highest per-capita incarceration rate of the 10 largest cities in the nation. About 30 percent of those sitting behind bars are awaiting trial.”

  • Daily News: “Locked up for being poor: Can next Philly DA fix the bail mess?”

“With seven of the eight DA candidates facing off in a May 16 Democratic primary, three of those candidates — Joe Kahn, Lawrence Krasner, and Michael Untermeyer — have promised to work to completely eliminate cash bail in the city, and most of the other candidates support lesser varieties of bail reform, such as dropping the practice for lower-level non-violent crimes. To many advocates of criminal justice reform, the move seems like a no-brainer. For one thing, it would save Philadelphia taxpayers millions of dollars; officials say that as many of half of the 6,600 people now locked up in the city’s jails are there because they’re awaiting trial and unable to afford cash bail. In many cases, advocates say, the inmates could gain their freedom for as little as $500 or less — but in the city with America’s highest rate of deep poverty, the figure might as well be a million dollars. ‘It’s just such an obvious thing — the question of whether someone is a danger to the community has nothing to do with how much money they have,’ said Patrick J. Egan, a partner in the Fox Rothschild law firm who moderated a Philadelphia forum last week on ending cash bail. ‘Poor folks stay in jail and rich folks don’t.’”

  • New York Times: “‘It Did Not Stick’: The First Federal Effort to Curb Police Abuse”

“‘Pittsburgh could very well have been stuck in the ’60s with no computers if it hadn’t had a consent decree,’ he said. The Justice Department had a list of demands — for instance, that every passenger’s race and sex be recorded during traffic stops. Chief McNeilly protested, questioning the practicality and legality of such a requirement. In the end, only the driver’s information was tracked. The Justice Department also required an ‘early warning system,’ opposed by the union, that would flag officers prone to using force. ‘Bob McNeilly was like a test pilot in the Mercury flight program,’ said Chuck Wexler, the president of the Police Executive Research Forum, a group of law enforcement professionals. ‘No one knew what an “early warning system” was, how to build it or what to measure.’”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

REVEALED: Pittsburgh unveils its long-hidden body camera policies. They’re ‘not very good’

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

When two national policy organizations surveyed police body camera regulations in cities all over the country last year, they discovered that Pittsburgh was hiding something: it’s body camera policies.

Departments in 46 other cities made their policies public. Pittsburgh was one of only two major cities in the country to keep them secret.

It’s no wonder why.

Responding to a Pennsylvania Right-To-Know-Law request, Pittsburgh’s Bureau of Police publicly released its body camera policies for the first time to the American Civil Liberties Union of Pennsylvania on April 3. (It had previously only released a “synopsis.”) Those policies were among the least transparent in the nation. And despite implementing its policies in July 2014, Pittsburgh’s are still under “active, internal review.”

“We’ve looked at a lot of these,” said Harlan Yu, of Upturn, one of the two groups who evaluated policies nationwide. “To put it simply, Pittsburgh’s policies are not very good.”

Sound body camera rules are important. They can mean the difference between a police department that holds its officers accountable — as the Police Executive Research Foundation has suggested they should — and one that doesn’t. Sound rules outline whether body camera footage can be reasonably obtained by the public, for example. Unsound rules don’t.   

The Body Worn Camera Policy Scorecard is a website created by the Leadership Conference on Civil and Human Rights in Washington D.C., and digital design company, Upturn. It is a first-of-its-kind assessment determining whether specific police departments have written clear rules about how police officers use body cameras.

The BWC Scorecard — whose assessors took guidance from the American Civil Liberties Union to evaluate policies — is simplified into eight categories. They are:

  • Whether the police department makes its policy easily accessible;
  • Whether it limits an officer’s discretion about when to record;
  • Whether it addresses personal privacy concerns;
  • Whether it prohibits officers from viewing body camera footage before they write most police reports;
  • Whether it limits retention — i.e., how long footage should be kept;  
  • Whether it protects footage against tampering and misuse;
  • Whether it makes footage available to individuals filing complaints;
  • Whether it limits use of biometric technologies such as facial recognition to be used with body camera footage.

The BWC Scorecard doesn’t judge the policies themselves; rather, it tracks whether the policies are clearly outlined. It gives a checkmark in a green box for an up-to-date policy; a circle in a yellow box for an outdated policy; and an X in a red box for an unavailable policy.

Of those eight categories, Pittsburgh received a green box rating in only one category: retention. “Members are advised, per this regulation, that all recordings collected by the BWC equipment which is not regulated by a regular retention schedule will be purged no later than 90 days from the date of the last recording,” the policy reads.

In two other categories — officer discretion, and footage misuse — Pittsburgh’s policies were outdated, say Miranda Bogen and Harlan Yu, of Upturn, who helped to evaluate policies nationwide for the BWC Scorecard.

For officer discretion, Pittsburgh’s policy states that officers should record at stops, in vehicle pursuit, and at major crime scenes. But it outlines no repercussions if an officer fails to record.

With footage misuse, Pittsburgh’s policy states that officers should not destroy body camera footage “except for approved annotation in accordance with the training and capabilities of the BWC system,” but it outlines no specific rules for logging footage.

In the other five categories, Pittsburgh’s policies received a big X.

“We already knew that Pittsburgh was keeping its full body camera policy hidden from the public,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Now we know why: It is out of date, and sorely lacking. The Pittsburgh Bureau of Police needs to change this, and to write body camera policies that are clear and current.”

Have a look at Pittsburgh’s body camera policy here:



Pittsburgh BWC Policy (Text)

Will Pennsylvania make police body camera footage impossible to obtain?

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Any new iteration like SB 976 of 2016 would limit citizens’ ability to obtain body camera footage. Photo from WESA.

Pennsylvania’s state legislature is again considering policies that govern police body cameras. In the fall, the state Senate passed Senate Bill 976 — an attempt to standardize policies for “recordings by law enforcement officers.” But the session ended before the House could consider it for a vote. There are now indications that some version of SB 976 could come up again for consideration.

At a glance, last session’s bill looks reasonable. It would let police officers record inside a private home when a body camera has been activated, and it would clear up confusion over whether officers are required to inform everyone in a public place that they’re being recorded when a body camera is turned on. But there’s a problem: The bill would also make it nearly impossible for citizens to acquire the kind of footage that has exposed disturbing police overreach, lead to dropped civilian charges, and forced criminal proceedings against police officers in other states.

Under this previous proposal — introduced by Senator Stewart Greenleaf, along with two former cops, Senator Randy Vulakovich and Representative Dom Costa — body camera footage would be withheld under the state’s Right-To-Know Law if an agency made the decision that the footage was part of an ongoing investigation. Such a rule could render most relevant footage inaccessible, since one imagines that most of the sought after footage will connect to incidents that have already begun to receive scrutiny. The old bill would also allow agencies to charge $250 for the right to appeal a decision to withhold footage.

And it would also deny any request made by anyone who can’t identify every individual in the video.

On that last part: The argument to support a requestor identifying individuals in a police video revolves around protecting the privacy of crime witnesses and onlookers. Why shouldn’t policy be written, the argument goes, to protect the rights of those who don’t want to be identified? It turns out that there’s an answer to this question that doesn’t involve making footage impossible to obtain.

Companies such as Taser International — which provides body cameras and video evidence infrastructure to several Pennsylvania police departments — offer a monthly subscription plan that includes automated redaction, and in fact uses as a selling point how remarkably easy it is to redact video for records requests. Just a reminder to the legislators who will be mulling over a new version of this legislation in the new session: The RTKL’s redaction section states that agencies “may not deny access to the record if the information which is not subject to access is able to be redacted.”

ACLU-PA’s Communications Director, Andy Hoover, told The Legal Intelligencer in October that SB 976’s public access rules amount to a “byzantine process.” As many smart people like Hoover have written before, it’s a good idea to establish consistent policy around police body camera use. But shielding body camera footage from public view won’t help to increase transparency, and it won’t force police to “document how officers conduct themselves,” as Senator Greenleaf told the Intelligencer that body camera footage might do.

On the contrary, if legislation like the old bill becomes law, it would make police transparency in Pennsylvania akin to body camera footage: all but impossible to obtain.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Wait times for prisoner mental health treatment have not improved, says Vic Walczak, ACLU-PA’s legal director. Photo from The Inquirer.
  • From The Philadelphia Inquirer: “A year after ACLU settlement, little change in delays for court-ordered mental-health treatment”

“In a bid to reduce the amount of time spent waiting in jail by mentally ill individuals declared incompetent to stand trial, the Jan. 27, 2016, settlement required the state to create 60 new treatment spots within 120 days and an additional 60 spots within 180 days. Plus, within 90 days of the agreement, the state was supposed to make $1 million available for supportive housing in Philadelphia, the settlement said. Spent on housing vouchers, that money was expected to provide 50 to 80 beds. Given the DHS’s lack of transparency, it’s unclear exactly how much of that has been done.”

“Pennsylvania has a problem. According to a recently released report initiated by the state House, ‘The Commonwealth’s rates of expulsion and out-of-school suspension are higher than the national average. Further, studies have shown that excessively punitive discipline for misbehavior can result in long-term consequences for the children involved, especially the youngest ones… Policies relating to expulsion and out-of-school suspension are those in need of the most scrutiny.” On October 28, Pennsylvania’s Joint State Government Commission, the research service for the state legislature, released Discipline Policies in Pennsylvania’s Public Schools. The study, a year in the making, was developed at the request of the PA House (House Resolution 540).”

“The system was developed to help law enforcement fight drug dealers, and Lebanon County District Attorney Dave Arnold said it’s a “critical” tool for cutting off their ability and financial motivation to sell drugs. But some people who lose property, like Elizabeth Young, may not be involved in drug selling at all. If people try to rescue their property, critics say they enter a complex and confusing legal process with the deck stacked against them. Since it isn’t a criminal case, there are few legal protections, no right to an attorney, and no presumption of innocence. And critics say police departments are making a profit in the process.”

“Much of the increase in the prison population has been driven by the war on drugs. Some legislators acknowledge that mass incarceration has not solved the problem. [ACLU-PA Communications Director Andrew Hoover] says now they need to do something about it. ‘There hasn’t been the kind of restructuring of sentencing that’s necessary to fulfill that promise, to make drugs more of a public-health issue than a criminal issue,’ he added.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Invasion of Privacy or Public Safety Measure?

By Paul Anderson, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Police Body Camera

The recent tragedies in Ferguson, Staten Island, Cleveland, Los Angeles and now Madison have thrust questions of how law enforcement interacts with members of the public into the national spotlight. One issue of specific focus has been available technologies that would—ideally—allow for greater oversight and accountability of officer interaction with the public. Body-worn cameras that record interactions made during an officer’s shift have advocates from both the police and civilian worlds. Members of the public believe that recording of encounters will better document potential police misconduct and provide greater transparency over state actors, and some parties in law enforcement envision body cameras can be valuable tools to increase public trust in the police.

Police body cameras are an admittedly thorny issue for the ACLU because of the potential for placing two equally compelling interests on a direct collision course. The aforementioned desire for greater accountability of state actors is offset by privacy interests of individuals who are recorded. Any body camera policy, whether imposed by the General Assembly or implemented at the municipal level, must delicately balance these interests.

At the outset, the police should have a near-zero discretion policy in turning off the cameras during encounters with the public. The only exceptions should be for conversations involving crime victims or witnesses. Too much latitude in powering off the cameras will inevitably lead to manipulation by some officers, as shown in a recent excessive force lawsuit in St. Louis.

In addition, all subjects should be made aware that their interactions with police are being recorded, but higher standards should govern in certain circumstances. For example, a recording inside a person’s home should be permitted in a non-emergency situation only with the consent of the residents or pursuant to a valid search warrant. Similarly, policies should accommodate crime victims and witnesses who request that a camera be turned off before divulging sensitive information.

The actual recording of encounters is not the only aspect of body cameras that raises significant privacy concerns. Storage policies must also be especially sensitive of individual privacy interests. Retention policies, like all other components of a comprehensive policy, should be directed to promote government oversight or other public interest. The interest in holding the state accountable is much lower when there is no evidence or accusation of police impropriety. Therefore, videos without any public or investigatory interest should be deleted as soon as is feasibly possible. Recordings that either involve significant police escalation or involve an incident that a civilian complains about should be retained longer, even if they are not being used in any criminal proceeding. The social interest in these recordings is much higher, meaning they should be retained and made available, in redacted form if necessary.

Finally, it is important to remember that use of body cameras is, at bottom, designed to permit greater public oversight of government behavior, not vice versa. Therefore, any legislation should include sweeping prohibitions against the use of body cameras as a general surveillance tool. The potential for misusing cameras to secretly record First Amendment activity- such as political protests or religious activity- is significant enough to create a demand for policies that explicitly disavow this type of monitoring.

Body cameras are not a panacea. In the Staten Island incident, a bystander captured video evidence of an officer using a chokehold on Eric Garner that was in violation of NYPD policy. Even though the coroner ruled Garner’s death was a homicide caused by compression of the neck and chest, a grand jury still declined to indict the officer responsible. Given deeper questions of structural inequality underscoring the current policing landscape, it is unlikely that increased recording of encounters alone will sufficiently restore public trust. However, body cameras can provide a potentially useful additional level of government oversight, as long as any legislative or administrative policies are developed with a clear and principled balancing of two crucial—and occasionally competing—interests.

Paul Anderson is the Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third-year student at Penn State Dickinson School of Law.