No Indictment in Death of Anton Black

The Caroline County, Md., state’s attorney said Thursday that there is not enough evidence to indict anyone in the death of Anton Black, the 19-year-old who died of cardiac arrest after a struggle with Maryland police in September.

The Caroline County, Md., state’s attorney said Thursday that there is not enough evidence to indict anyone in the death of Anton Black, the 19-year-old who died of cardiac arrest after a struggle with Maryland police in September. The prosecutor will not agree to the request of Black’s family that a grand jury investigate the case, The Baltimore Sun reports.

The teen suffered “sudden cardiac death,” the state medical examiner concluded Wednesday about an incident that has roiled the small town of Greensboro, according to The Washington Post. The medical examiner ruled the death of Black accidental. The autopsy report said it was “likely that the stress of his struggle” with police contributed to his death, as did bipolar disorder and underlying heart issues, but said “no evidence was found that restraint by law enforcement directly caused or significantly caused or significantly contributed” to the Sept. 15 death. Greensboro Police Chief Mike Petyo provided a link Thursday night to The Baltimore Sun of police body-camera footage from the fatal encounter between police and Black.


States Focus on Transparency, Accountability in Police Bodycam Guidelines

Sixteen states have passed laws on body cameras since January 2017, says the Urban Institute. State policies are mixed on who can gain access to the footage and when.

With more police departments requiring their officers to wear cameras, states are continuing to refine their laws governing use of the devices.

Since January 2017 alone, 16 states have passed laws related to body-worn cameras, according to a report issued Monday by The Urban Institute.  Some 12 states have legislation pending

The institute, which has been tracking this legislation,has identified five policy trends related to transparency and accountability, according to report authors Nkechi Erondu and Nancy La Vigne.

Many states are developing model evidence-based policies and standards around camera use. In 2016, several states established commissions, study groups and pilot programs.

In January 2017, the Ohio Collaborative Community-Police Advisory Board issued standards that include requiring law enforcement to inform citizens when they are
being recorded and blocking citizens from reviewing recordings at the scene of an incident.

In the same month, Nebraska passed a policy developed by its Commission on Law Enforcement and Criminal Justice governing when and how to use body-worn cameras and regulating the storage and destruction of footage.

There’s no national standard on when footage is considered public record. Twenty states and the District of Columbia have either passed or proposed legislation related
to access.

Only a few states exempt all body-worn camera footage from public records requests; most others have a variety of exemptions associated with disclosure or allow requests on a per-incident basis. Many states don’t allow disclosure of records related to an ongoing criminal investigation or disciplinary action.

Privacy issues continue to surface, Erondu and La Vigne said.

In new laws, personal privacy concerns increasingly are at odds with law enforcement investigative needs, prompting a nationwide conversation on the tradeoffs between transparency and privacy.

Utah has prohibited recordings within hospitals, human services programs, or mental care facilities. Tennessee, Kentucky and Washington exempt from public records
requests depictions of vulnerable individuals, such as sex crime and domestic
violence survivors and minors.

State guidelines regarding officer viewings of body camera footage prior to investigations are rare. The issue is whether officers should be allowed to view footage before writing incident reports or make statements after police-involved shootings and other serious incidents.

Police groups generally favor allowing officers to review footage, so they can obtain the best evidence available. Civil rights advocates oppose it, citing damages to accountability and accuracy. Only Arizona, Florida and the District of Columbia have passed statewide regulations. All allow law enforcement to access footage before making a statement or writing a report.

Michigan, Minnesota and Oregon require law enforcement agencies using body-worn cameras to develop written policies.

In the absence of state laws, local police departments have considerable discretion. In Tucson, Az., for example, the police department allows anyone to request footage, and access is automatically granted if the request complies with the state’s public records law.

Legal cases are also shaping policy. In August, a circuit court judge ordered the Mobile, Al., police department to release footage depicting an officer pepper-spraying high school students to WALA-TV/FOX 10 News, but said his ruling did not set a precedent for all body camera videos.

Erondu and La Vigne urged states to “enact legislation that is both responsive to
the demands of community stakeholders and considers evolving technological advancements.”

“Striking the right balance between flexibility in local implementation and comprehensive and uniform standards will be critical in ensuring body-worn cameras enhance transparency and accountability,” they wrote.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report.


Trust, But Verify: The Hazards of Police Body Cams

Cops have been known to manipulate body camera evidence to support their version of fatal encounters with civilians. That’s why video footage should be closely examined through courtroom questioning, argue two researchers.

Police officer statements captured through body camera footage should be permissible in court as evidence against a criminal defendant only if the officer making the statements testifies in court, argues a forthcoming article in the Fordham Law Review

The authors of the article, William and Mary Law School Professor Jeffrey Bellin and 13th Judicial Circuit of Virginia Law Clerk Shevarma Pemberton, made the recommendation as part of an analysis of preexisting laws governing hearsay evidence and the rising widespread use of police body cameras.

Police body cams typically produce audio and video recordings of police officer actions, observations and interactions with citizens, and while they are generally viewed as checks on police misconduct, they are also a tool for officers to collect evidence against citizens who later become defendants in criminal trials, the researchers say.

Since officers know the footage will be used as evidence, they could control and manipulate evidence during police-civilian interactions in a manner that incriminates civilians.

One way they can do so is through their oral statements. For example, an officer may shout “He is reaching for his gun,” or “He just threw something in the bushes,” when in fact no such actions occurred or at least aren’t corroborated in the video footage.

For that, they should testify and face cross-examination, the researchers say.

The study provides a list of recent events the authors say back up their concern. In Baltimore, police were accused of reenacting drug discoveries for their body cameras. Officers involved in shooting Stephon Clark muted their body camera audio shortly after the shooting. During the 2016 shooting of Alton Sterling, both officers’ body cameras were “dislodged.”

The researchers also found that 70 percent of officers violate body camera policies.

“This is particularly important because the footage produced by police body cameras will much more commonly be used to prosecute citizens than to document their abuse at the hands of police,” the authors wrote.

“This danger becomes particularly significant if police body camera statements are introduced at trial without the live testimony of the authoring officer. Such statements will be admitted with a veneer of reliability despite never having been subjected to an oath, or the “crucible of cross-examination.”

The authors proposed that officers must testify that they cannot fully and accurately recall the incident and vouch for the accuracy of the out-of-court statements. Furthermore, the oral statements in the video must exhibit “excited utterances,” as they are spontaneous and less likely to engage in “conscious fabrication than the reflective mind.”

The authors argued that the media and scholars of body camera footage coverage focused on holding police accountable for unlawful shootings and other uses of excessive force but have ignored examining the extent to which the audio track—specifically statements made in the audio track in body cam footage should be admissible against a defendant in a criminal prosecution.

The full study can be downloaded here.

This summary was prepared by J. Gabriel Ware, a TCR news intern. Readers’ comments are welcome.


Why Police Body Cams Aren’t What They Seem to Be

A North Texas detective who produces the Quality Policing podcasts argues that the way body-worn video cameras are currently used doesn’t address the issues they’re meant to solve.

Somewhere between one-fifth and one-half of U.S. police officers are wearing body-worn video cameras. It’s hard to tell the exact number, but we know the number is rising.

Body cams, which clip to the uniform or headgear of an officer, and are intended to capture the officer’s-eye-view of incidents, have been called the most important solution to police transparency in America. But as a recent podcast of our Quality Policing series shows, it’s worth looking beyond the rhetoric.

“Today I think I have found the solution that will help law enforcement officers and our citizens go home safe,” Sen. Tim Scott (R-SC) said in 2015. “That solution [is] body-worn cameras to be worn by our law enforcement officers throughout this country.”

There was literally no evidence that this was true.

Scott had no scientific basis for his conclusion. He just … hoped … that it would work. And that was despite our national experience with dashboard cameras in patrol cars, which some police executives said would address the issue of racial profiling—but failed to live up to their promise.

Videos from body cameras, now being captured at a rate of hundreds of thousands of hours a day, have indeed been an important phenomenon in American policing. Last year, in the jurisdictions that deploy body cams, video was used by nearly every prosecutor, nearly 93 percent of them—in cases against civilian suspects.

Want to guess the percentage of those same prosecutors who used body-camera video to prosecute cops?

Eight percent.

Almost all prosecutors are using the video to prosecute civilians, and almost none of them are using them for what we thought body cameras were there for.

What’s ironic is that Sen. Scott, a host of other officials, activists, and the press were scaling Mount Hype on body cameras much more aggressively than even the companies that sell the cameras—which found themselves in the strange position of having to temper wildly enthusiastic expectations, based on nothing but hope.

In October of this year, the biggest-ever randomized study of body cameras showed no measurable reduction in complaints or use of force by officers in Washington, D.C.

If you think that means body cameras aren’t working, well… you’re wrong. The truth is, body cameras are working just fine.

They’re just working differently from the way people expected they would.

That’s a really important disconnect, because if you’re concerned about how you’re policed—and who isn’t?—you really need to know the full story.

A lot of our national expectations on body cameras were formed listening to politicians who were looking to be seen as “doing something.”

In 2014, as questions were raised across the nation about how well we could trust police, body cameras seemed to promise that now we could see what the cop saw. We could see the scene, and when the cop lied, the video would show it.

Then-Attorney General Eric Holder and President Barack Obama moved swiftly to get cameras on as many officers as possible, promising up to 50,000 cameras as a start.

And then…

No reduction in officer-involved shootings. No reduction in controversial incidents. No reductions in complaints.

The expectation was that, when officers had these cameras on their chests, people would be more courteous and less likely to fight, and officers would be more courteous and less likely to behave badly.

That’s not what happened.

What did happened was that police and prosecutors became better at demonstrating criminal behavior by civilians. Prosecutors in particular were able to more efficiently get plea deals.

Let’s be clear. As a serving police officer, I can confirm that body cameras are good for policing. They provide lots of evidence that we’ve never had before about how cops and citizens behave during interactions.

They have provided evidence in thousands of criminal cases that helped bring criminals to justice.

What’s more, body cameras provide transparency.

What is transparent, though, is the question: Sure, we absolutely get to see more of when cops do bad things, like the recent cases in Baltimore and Los Angeles of officers allegedly planting drugs on suspects.

But most of the time, the transparency that body cameras bring is evidence of civilians committing crimes.

In 2015, Hillary Clinton underlined the point in a speech at Columbia University in New York shortly after launching her presidential campaign.

“(Body cameras) will improve transparency and accountability and…will help protect good people on both sides of the lens,” she said, adding that “for every tragedy caught on tape, there are surely many more” that now go unrecorded.

She was right. Cameras do protect good people on both sides of the lens. People simply presumed that it was the cops who weren’t good, but the video is showing that in fact, transparency cuts both ways.

The most transparent fact body cameras have shown is that people—civilians—can act like asses while confronting cops, and the video catches a lot of it.

If you’re a defense attorney, you get this. You’re probably more worried about how and when videos are made. If anyone other than cops gets to see this from the front row, it would be Legal Aid.

“The big problem,” said Steven Wasserman, an attorney with the Legal Aid Society in the Special Litigation Unit, “is that the police control the button.”

From the defense table, it’s less about whether cameras are being used to go after misbehaving cops. Prosecutors who are using body worn camera video use it to decide whether to prosecute, and in preparing the charges they will bring.

If you’re imagining a courtroom with a jury watching, that’s not it. What the prosecutors mainly use the video for is to get to a plea deal faster. There’s evidence the video reduces time from arrest to plea.

This is nothing new to Wasserman.

“We’ve had video for many years,” he said, in an interview for our Quality Policing Extra podcast on body cameras in his lower Manhattan offices.

“I mean, there’s many video cameras that capture incidents and crimes, and it certainly has helped in many instances to resolve matters that otherwise would have been very uncertain and would have had to be litigated.”

So how do body cameras shake out for the defense?

“It is a sort of a net liability to the defense,” Wasserman said. “The important thing is to make sure the recording is done in a way that approximates some kind of even-handedness and objectivity.”

That is key.

“Everyone is coming to the body camera question with a totally different take on what these tools are going to be used for,” Prof. Seth Stoughton of the University of South Carolina Law School, who specializes in the regulation of policing, told us.

“The community thinks, ‘Hey, you got this for officer-accountability reasons, but all you’re using it for is to prosecute people.’ I think that has the potential to be taken as a failure, a betrayal.”

If that’s a failure, how do you even measure success?

We can’t. In 2016, Rachel Levinson-Waldman of the Brennan Center and I wrote a USA Today article in which we warned that if agencies didn’t declare what they wanted the cameras to do, there was no way to know whether they were doing it.

Regardless of whether there is video of an incident, as we all know from cop shows, officers have to write reports about everything they do. Should officers be able to view the body-camera video of the event they’re writing about before they write their report?

Or should they be required to write their report, then be allowed to watch the video, and then be permitted to write a supplement—in case they see something in their video that contradicts something they’ve written about the incident?

Proponents of this latter option, which is often called, “Write-Watch-Supplement,” say that it provides the fairest option for everyone. They fear that cops who watch video can unintentionally or intentionally modify what they write in their reports to match the video, as opposed to memorializing their own recollection of the incident.

Cops think this is just a theoretical game of “gotcha,” and point out that neither the video nor the officer’s memories are perfect recollection tools.

Few people have looked at these issues as closely as Harlan Yu at Upturn, a nonprofit based in Washington DC, who studies technology’s impact on civil rights and social justice issue.

Yu believes that policies governing the use of body cameras and the video they produce—from access by the public to use by officers and prosecutors—now strongly favor the police and the state.

This month in The Illusion of Accuracy, Upturn argued that the lack of policy requiring “Write-Watch-Supplement” is maybe the single biggest barrier to justice with body cameras.

“If body worn cameras have any chance of holding police accountable for misconduct,” Yu said in a Skype interview, “having officers be able to watch footage before writing the report makes it much easier for them if they were to try to push a false narrative to act for the camera and to do so.”

It’s worth noting that this is entirely speculative and theoretical. There has not been a case of cops getting caught engaging in this skullduggery.

A 2015 study that compared officer narratives to what was seen on the body video, found that cops’ descriptions of what happened, most of the time, are pretty darned accurate. That study was funded by a camera maker, and three of the five scientists involved in the study declared financial interests in that firm, but they declared their conflicts properly, and the methodology looks sound.

Another study that isn’t conflicted and will be released soon has confirmed these earlier findings, and expanded on them.

I’ve personally come to believe that Write-Watch-Supplement is ultimately better for cops. There are some really complicated but good reasons that come down to Graham vs Connor issues (the 1989 Supreme Court ruling that claims of “excessive use of force” must be weighed against the “reasonableness” standards set by the Fourth Amendment), and proof of officer integrity and credibility in the face of protest.

But I don’t believe that Watch-Write is inherently dishonest.

I do believe that policies about access to body cam video should be fairer, to level the playing field. For example, if I complain about a cop, I should be able to get access to video of the incident.

But there are a hodgepodge of laws making this less than simple.


Nick Selby

In our podcast, we break these issues down further, and you can hear a lot from stakeholders, experts, and the media. I hope you take the time to hear it!

 If you have a comment about it, call and leave a message at (516) 362-3972. The best comments get played on our program, but we won’t reveal your identity.

Nick Selby is a Texas police detective who investigates computer fraud and child exploitation. Also a cyber-security incident responder, he is co-author of Cyber Survival Manual: From Identity Theft to The Digital Apocalypse and Everything in BetweenIn Context: Understanding Police Killings of Unarmed Civilians; and Blackhatonomics: Understanding the Economics of Cybercrime; and technical editor of Investigating Internet Crimes: An Introduction to Solving Crimes in Cyberspace. His Quality Policing podcasts, produced in collaboration with Prof. Peter Moskos of the John Jay College of Criminal Justice, are available here.


Minneapolis to Change Policy on Police Body Cameras

The city’s mayor and acting police chief were expected to delineate changes in the body-cam policy Wednesday morning. The changes are another fallout from the July 15 fatal shooting by a Minneapolis cop of a woman who had called 911 to report a possible crime.

Minneapolis Mayor Betsy Hodges and acting Police Chief Medaria Arradando planned a press conference late Wednesday morning to announce changes to the police department’s body camera policy, reports WCCO. The two were set to announce the changes at the Minneapolis Emergency Operations Training Facility.

The expected changes were prompted by the July 15 fatal shooting by Officer Mohammed Noor of Justine Damond, who had called 911 to report a possible sexual assault outside her home. The shooting has roiled the city. Police Chief Janee Harteau, who took five days to return from vacation after the shooting happened, resigned under pressure from Mayor Hodges.