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?
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.
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.
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 Between; In 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.