BY: Channing Thomas, Guest Contributor
Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO. The following article is one of many guest contributions from Campbell Law students to be published over the summer.
The American Civil Rights movement took place in the United States during the 1960s. During this time, civil rights activists took to non-violent protests and demonstrations in an attempt to gain equal rights for the African American population. In response, the federal government made legislative changes such as the Voting Rights Act of 1965 and the Civil Rights Act of 1968. Even after these significant changes took place to increase the equal rights of African Americans, many believe a problem regarding race relations still exists today, specifically between the police force in the United States and the African American population, a portion of community the police has sworn to serve and protect.
Phrases such as “Hands up, don’t shoot” and “I can’t breathe” plague the headlines of the current media and raise questions as to the excessive use of force by law enforcement, particularly against minority groups. Accompanying these sound bites are photographs of African American men such as Michael Brown, Eric Garner, and most recently, Walter Scott.
In response to these headlines, the most voiced response has been the proposed implantation of a body worn camera program within law enforcement agencies. There is an overwhelming belief by various parties that implementation of police worn body cameras is an effective means of recognizing the issues and attempting to remedy the violent, and believed to be unnecessary, outcomes. Much of the disagreement arises when creating the laws governing how these cameras should be used and how the information should be collected and stored. When considering implementation, parties must consider the public policy concerns of police action and protecting the public’s right to privacy. This article explores the proposed solution of police worn body cameras, the parties most actively involved in influencing the implementation of the procedures governing body cameras, and the current proposed legislation within North Carolina.
[M]ost concerned parties all agree that body cameras should be implemented within law enforcement agencies
Unlike many public policy issues, most concerned parties all agree that body cameras should be implemented within law enforcement agencies. The main outcome desired by all groups listed below is law enforcement accountability and transparency. The debate arises regarding the implementation of procedures and guidelines which govern the conduct of the officers while wearing the body mounted cameras and the law enforcement agencies’ retention of the recorded material.
American Civil Liberties Union
On behalf of the private citizens, the American Civil Liberties Union (“ACLU”) has voiced its concerns regarding the implementation of police worn body cameras. Generally, the ACLU opposes “pervasive government surveillance.” Though in the context of police worn body cameras, the ACLU supports the implementation as it serves as a check against the abuse of power by police officers. In addition, the ACLU acknowledges the cameras have the potential to be mutually beneficial by “helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse.”
The ACLU has voiced multiple concerns regarding body-worn camera implementation. Most of these concerns revolve around law enforcement control over what activities are recorded by these cameras and how the information is stored, accessed, and utilized after the recording takes place.
The American Civil Liberties Union of North Carolina believes how the cameras are activated and who can access the records is of great importance
First, there are concerns with the act of recording itself. What types of events are recorded and under whose discretion; must the officer inform the subject that they are being recorded; and must the subject consent to the recording? Second, there are privacy concerns with the storing and access of the recorded data. How long is it being stored? Are members of the public granted access to the recorded information?
For the highest degree of police accountability, the ACLU suggests police worn body cameras should remain on and recording for the duration of the officers shift in order to prevent police from controlling what events are recorded at their discretion. The American Civil Liberties Union of North Carolina believes how the cameras are activated and who can access the records is of great importance. Specifically, Sarah Peterson, policy director, states, “anyone who is subject to the recording should have access to the video . . . if something has public interest of some kind, it should be released.”
[B]ody mounted cameras possess the unique ability to enter into a citizen’s private home alone with the officer
Body worn cameras are perceived to be an extension of dash-mounted cameras found mounted in police vehicles. But unlike dash-mounted cameras, body mounted cameras possess the unique ability to enter into a citizen’s private home alone with the officer. To limit the privacy concerns, the ACLU mainly suggests: (1) notice be given to the public either verbally or by assigning cameras to uniformed officers only, especially when the recording takes place in a private home; (2) the recorded information should be kept no longer than necessary for the purpose in which it was collected; (3) the use should be limited to daily police activities rather than “systematic surveillance or tracking of the public”; (4) those on the recordings should be granted access; and finally, (5) the law enforcement agency should implement reasonable safeguards to ensure the recorded data is protected from unauthorized, digital threats.
The ACLU also believes specific penalties should be imposed on officers that do not comply with their other suggestions. The ACLU suggests three consequences of an officer failing to record or interfering with the camera: (1) “[d]irect disciplinary action against the individual officer; (2) [t]he adoption of rebuttable evidentiary presumptions in favor of criminal defendants who claim exculpatory evidence was not captured or was destroyed; and (3) [t]he adoption of rebuttable evidentiary presumptions on behalf of civil plaintiffs suing the government, police department and/or officers for damages based on police misconduct.”
As law enforcement agencies are charged with protecting the American public, the public’s concerns should be acknowledged and considered when devising policy guidelines regarding the use of body cameras. The ACLU’s recommendations are reasonable and, importantly, do not interfere with the law enforcement officer’s ability to perform their duties. Therefore, they should be implemented into state law to govern the use of police worn body camera to best protect the law enforcement officers and the general public.
COPS and Department of Justice
On behalf of the law enforcement agencies, the Community Oriented Policing Service (“COPS”) division of the Department of Justice and the Police Executive Research Forum (PERF) have composed a publication outlining research conducted on the issue of police worn body cameras as well as various recommendations they encourage police forces to consider when implementing this new program. COPS and the PERF not only recognize the concerns and suggestions set forth by the ACLU, but they also recommend the states implement many of the ACLU’s proposed procedures.
Unlike the ACLU, COPS and PERF present much of their information from the law enforcement agencies’ perspective. In addition to making suggestions regarding duration of recording, consent, retention, access, and other concerns listed by the ACLU, COPS and PERF make recommendations as to how law enforcement agencies should use the body camera implementation to improve its relationship with the community it is obligated to serve and protect. From the perspective of law enforcement agencies, there are more goals to this program than police accountability and transparency. Rather, they want to use the body mounted cameras in a way to benefit the public and strengthen its relationship with the police.
There are currently two bills in the North Carolina House of Representatives to amend Chapter 15A of the General Statues. These two bills, should they become law, require police to wear body mounted cameras during certain, specified interactions with the public. One bill is more general and has bipartisan support in the house. The other bill is more specific in its regulation of police conduct while using body mounted cameras as well as the regulation of law enforcement agencies’ rendition of the recoded data. This more detailed bill, which many believe grant more protection to public privacy rights and less freedom to the law enforcement agencies, is supported only by the Democratic Party.
Many states are answering the outcry for police worn body cameras . . .
Many states are answering the outcry for police worn body cameras, and in response, are drafting laws regarding how those cameras will be implemented. North Carolina has also started addressing the issue.
North Carolina House Bill 537
House Bill 537 is “an act to require most law enforcement officers to wear and activate body worn cameras during certain interactions with the public.” This bill generally addresses the equipment police officers are required to use, the situations in which officers must use this body worn camera with listed exceptions, and how long the recorded material must be stored. However, House Bill 537 does not address who has access to the recorded information.
[T]he officer is required to wear and activate the body worn camera during any “recordable interaction”
North Carolina’s definition of the “body camera” is similar to those from other states. According to this bill, a body camera is that which includes an operational video camera and shall include a microphone or such mechanism to record audio sounds. The camera must be affixed to the police officer’s uniform and “positioned in a way that allows the video camera to capture interactions the law enforcement officer has with the public.” This definition does not include cameras privately owned and provided by a law enforcement officer, but rather, specifically covers recording devices provided by a law enforcement agency.
Additionally, the officer is required to wear and activate the body worn camera during any “recordable interaction.” House Bill 537 defines a recordable interaction as “[a]n interaction between a law enforcement officer, in his or her official capacity, and a member or members of the public, including an inmate or inmates of a State correctional facility.” This includes “traffic stops, arrests, searches, interrogations not covered under G.S. 15A-211, interviews with victims and witnesses, and pursuits.”
As with any rule comes a list of exceptions. This bill also states situations in which officers are not required to wear and activate the body worn camera: when interacting with confidential informants or undercover officers; engaging in routine, non-law enforcement activities such as having personal conversations, using the restroom, or changing in a dressing room; and when an officer is providing training or presenting to the public.
Failure for officers to comply with the recording requirements or the law enforcement agency’s failure to retain the recording for the specified period of time does not come without a cost
Unlike other state statutes or the ACLU recommendations listed above, the North Carolina House Bill 537 does not specifically require officers to be dressed in uniform, but rather is it is implied in the definition of a “law enforcement officer.” In this bill, officers are defined as:
Any employee of a law enforcement agency who (1) is actively serving in a position with primary duties and responsibilities for the prevention and detection of crime or the general enforcement of the criminal laws of the State, (2) possesses the power of arrest by virtue of an oath administered under the authority of the State, and (3) is primarily assigned to patrol duties.
Because it is not expressly stated whether officers are required to be in uniform when wearing the body worn camera, the ambiguity could pose an issue in the future and lead to litigation.
North Carolina House Bill 573 complies with the ACLU recommendation of requiring the device to be activated during the majority of police interactions with the public. In addition, the bill implements some of the ACLU’s suggested penalties listed above. Failure for officers to comply with the recording requirements or the law enforcement agency’s failure to retain the recording for the specified period of time does not come without a cost. Should these events occur, the lack of compliance “shall be admissible in a criminal action or a party opposing the law enforcement officer or law enforcement agency in a civil action,” creating a presumption of wrongdoing.
North Carolina House Bill 395
While House Bill 573 has bipartisan support, the second house bill concerning police worn body cameras is not as popular and primarily supported by the Democratic Party only. House Bill 395 projects farther than Bill 573 and requires more specific requirements. Similar to the previous described bill, Bill 395 requires “most law enforcement officers to wear and activate body-worn cameras during certain interactions with the public.” In addition to these requirements, Bill 395 sets out to establish a “use policy” for body-worn cameras and dashboard cameras, and establish the procedure addressing access to these recordings.
The stark differences between the two bills lay in House Bill 395’s additional safeguards . . .
House Bill 395 utilizes the same definitions for “body camera,” “law enforcement officer,” and “recordable interaction.” The stark differences between the two bills lay in House Bill 395’s additional safeguards, which better protects the public’s privacy rights. Like House Bill 573, House Bill 395 requires officers to record any “recordable action,” but House Bill 395 grants more direction to officers by stating officers are required to inform the person or persons being recorded that the interaction is being recorded unless doing so “would be unsafe, impracticable, or impossible.”
This Bill also addresses the duration in which an officer is required to record an interaction with a person or group of people. The officer is required to continue recording until: “(1) the conclusion of the recordable interaction, (2) the law enforcement officer has left the scene, (3) a supervisor, while being recorded, authorizes the law enforcement officer to deactivate the body-worn camera, or (4) an exception…authorizes deactivation.
The additional guidance ensures the officer records the entirety of the interaction or obtains authorization from another officer of higher rank. This procedure holds the officer accountable and also requires a consultation with a supervising officer to discontinue the recording.
House Bill 395 allows the public to access the recorded information
Unlike House Bill 573, House Bill 395 allows the public to access the recorded information. Though a private citizen is not permitted to opt out of being recorded by these devices, a person may submit a written request to the law enforcement agency to receive a copy of the recording obtained by a body camera. This access is not unbridled. The proposed statute does allow the law enforcement agency to redact any portion of the recoding that (1) an officer was not required to record by the statute, or (2) is prohibited from disclosure by any other law. With the redaction, the law enforcement agency must provide a written explanation as to why portions of the recording were redacted or why the video is not disclosed. House Bill 395 continues to provide an additional safeguard by allowing the person to appeal the law enforcement agency’s refusal to disclose. A person may apply to “the appropriate division of the General Court of Justice” for an order to compel against the agency in question, thus providing another layer of checks and balances to this proposed procedure.
Rather than the vague determination of whatever the agency deems “reasonable,” House Bill 395 applies a firm limitation.
Finally, a key difference between House Bill 573 and House Bill 395 involves the amount of time the records are retained by the law enforcement agency. Rather than the vague determination of whatever the agency deems “reasonable,” House Bill 395 applies a firm limitation. The law enforcement agency is required by this statute to “retain an original, unredacted recording captured by a body-worn camera . . . for the later of (1) 60 days from the date of recording, (2) the period specified in a court order, or (3) 10 days from the date of an administrative, civil, or criminal proceeding in which the recording was used as evidence concludes.”
The firm time periods ensure those persons captured on the recordings, who are not party to the incident, shall not be retained indefinitely for any other reason other than to possibly be used by law enforcement at a later date. In addition, should a person be recorded in response to a “recordable interaction” which requires future legal proceedings, this limitation allows the evidence to be preserved for court. As a result, this furthers the goals assigned to the implementation of body worn cameras—to use these devices as a means to better collect evidence and improve law enforcement action.
While House Bill 573 sets about implementing body worn cameras on law enforcement officers during much of their interactions with the public, it lacks the implementation measures necessary to protect the public’s privacy rights. In addition, House Bill 573 lacks any of the transparency the police worn body cameras set out to achieve. The general public is not granted access to the recordings after they are gathered by law enforcement, and law enforcement has greater ability to intrude on the public’s right through the minimal restrictions on recordable instances. On the other hand, House Bill 395 requires law enforcement officers to wear body worn cameras and manage the information in a way that forwards the goals associated with implementation while also incorporating the public’s concerns for their privacy.
Relationships between the police and the public are currently fraught with tension. Many of the incidents at the forefront of the discussion involve two different sides of the same story, a typical “he said, she said” situation, pitting officers of the law against the general public and chafing a relationship already littered with friction. In response to this current dilemma, body cameras appear to be the best solution, and a solution most parties agree upon. When forming legislation, representatives should consider the public policy issues behind the dilemma and act accordingly to best protect the police and the public’s right to privacy.
Channing Thomas is a 2015 graduate of Campbell Law School. She can be reached by email at firstname.lastname@example.org.