The Long, Complicated Fight Over Making Sure the Public Sees Police Killing Videos

Despite the police being increasingly under the microscope for the deaths of civilians, and despite it becoming easier to document these incidents on camera, access to footage is extremely hard to come by.

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Jan 21 2016, 9:00pm

An LAPD officer demonstrates a new body camera last year. (Photo by Al Seib/Los Angeles Times via Getty Images)

In November, the release of a silent minute-and-a-half long cut of video was followed in rapid succession by the indictment of a cop for murder, the firing of a police superintendent, calls for a mayor and state's attorney to step down, and a federal investigation into America's second-largest police department.

The footage depicted 17-year-old Laquan McDonald as he was gunned down by a Chicago cop in October 2014—importantly, he was shown walking away from the officer rather than advancing threateningly, as the police alleged. Those following the case already knew from witness accounts and the autopsy showing that McDonald had been shot 16 times that initial police reports had to be wrong. But the visual of the video is what crystalized public outrage and earned nationwide media attention.

McDonald's is one of many cases where footage of a fatal officer-involved incident contradicted police reports and made national headlines. The Washington Post recently published data documenting nearly 1,000 deaths at the hands of police in 2015—the great majority of which the paper found to be justified. The number of criminal charges against officers for fatal shootings was few; only 18 cops were indicted for killing people in 2015, though that's far more than in previous years.

In that small sample, however, video played a large part: In ten out of the 18 cases, prosecutors leaned on footage to make their case.

With the high number of fatalities at the hands of police last year came plenty of rage. Perhaps most glaring was over the disproportionate number of unarmed black men killed by cops; almost half of the year's total fatal police shootings claimed the lives of people of color, according to the Post's analysis. At the same time, however, the use of body cameras was expanded (particularly thanks to a $19 million grant from the Department of Justice) in an effort to increase transparency and reduce the use of force by police.

There may be an abundance of footage—be it from a squad car's dashboard, officer's lapel, private surveillance camera, or bystander's phone—but the public is often left in the dark. Police department policies on video release range from near instantaneous posting to complete lockdown. For its part, the Post reports that fewer than half of the paper's requests for body camera footage from police departments were granted, even though the cameras were intended to promote transparency.

Despite the police being increasingly under the microscope for the deaths of civilians, and despite it becoming easier to document these incidents on camera, access to this footage has been restricted. Police departments and city attorneys use an "ongoing investigation" exemption under open records laws to keep video confidential during investigation that some argue should not apply to videos of police shootings.

This matters because there have been several cases, like McDonald's, where the video has dramatically contradicted initial police reports, changing public perception of what occurred and who is at fault. Take Cincinnati's Samuel Dubose, who was pulled over for a missing license plate and shot in the head moments later by an officer who claimed the man was trying to run him over. Or South Carolina's Walter Scott, who was said to have been shot in a struggle with an officer over his Taser, when he was actually killed running away from the cop. Or Noel Aguilar, killed in May 2014 by a Los Angeles County deputy who thought he was shot by Aguilar when he was actually shot by his own partner.

These examples don't exactly encourage activists and family members of those killed by cops to buy the police accounts of shootings.

"None of us in the community have seen Jamar Clark's video, so we don't know what's on it," says Anthony Newby, executive director for Neighborhoods Organizing for Change in Minneapolis. Clark was 24 when he was shot and killed by police in November last year. Witnesses say he was handcuffed or restrained when he was fatally shot, but an attorney representing one of the officers argues Clark was resisting arrest and attempted to take a gun. "None of us are afraid of what it looks like," Newby says. "We just want to see it, and have access to it. Jamar Clark is dead. It doesn't get worse than that."

Twenty-six-year-old Alexia Christian was shot at ten times by Atlanta police in the back of a squad car last April, dying the same day at a hospital. Her mother and activists have asked that the city release dashboard and surveillance tapes depicting Christian's death. "As a mother, I deserve to know what happened to Alexia," she told the city police chief. But according to Atlanta officials, an ongoing investigation means the video cannot be released. And, as the department pointed out, there is "no statute of limitations on these things."

In other words, the investigation can remain open indefinitely.

This denial of access to video footage after officer-involved fatalities is often described as essential to protecting the investigation and maintaining public calm. But that argument works best when communities trust that the authorities are working for them and not trying to cover up wrongdoing. Activists like Newby simply don't think the police can police themselves.

"As a matter of transparency and accountability, the police and prosecutors cannot be the only ones to have access to video evidence," he argues. "The public has a right to know. The family has a right to know."

Currently, it's not uncommon for police departments to refuse video release under an exemption to state open records laws for ongoing investigations. But Jay Stanley of the American Civil Liberties Union argues that this exemption was not created for—and shouldn't be applied to—police shootings. The ACLU has proposed detailed policy on the handling of body camera video; they suggest that footage be stored for a period of "weeks not years," noting privacy concerns, unless the case involves the use of force, a complaint has been filed, or it led to detention or arrest. Stanley says that in cases where a complaint has been filed, once the involved officers (and perhaps key witnesses) give their initial report and have seen the video, sharing it with the public generally doesn't hinder an investigation.

He argues that merely keeping it private to prevent the public from seeing it is "not a legitimate goal on its own."

"The public pays police officers to protect the public...and [members of the public] have a huge interest in monitoring exactly how its employees, the police officers, go about doing that," Stanley says. The need for transparency is "rarely as sharp," he adds, as when police are using deadly force.

If some see video technology as protecting the public from police, the formula can also be flipped. Jim Pasco is the legislative advocacy director for the Fraternal Order of Police, an organization of over 325,000 members in law enforcement across America. He sees video as a tool to exonerate officers in many cases. "A lot of people have talked about the fact that in places where body cameras are used, that complaints against police plummet, and suggest that that means that police wearing body cameras behave better," Pasco says. But the opposite is true, he says: "It's a lot harder to complain about police conduct during the course of an arrest when there's evidence to the contrary."

Policies on cameras and footage vary around the country, and it's not like all law enforcement bodies are committed to keeping controversial videos under wraps.

When Chris Burbank served as Salt Lake City police chief, before he joined UCLA's Center for Policing Equity, he took the department's use of video to a transparent extreme. Video was made available to both officers and civilians regardless of investigation proceedings, a point of contention between Burbank and district attorneys, he recalls. But this kind of transparency yields efficiency and effectiveness "on both sides." If both civilians and police know they are being recorded and will have a chance to review the footage, he asks, "Does that not create an environment in which everybody involved is going to be more inclined to be as accurate as possible?"

In Seattle, a federal investigation found a pattern of excessive use of force by local cops in 2012, and the city has since taken strides toward using video to heighten transparency. Following a fatal officer-involved incident earlier this month, Seattle police released the associated footage within 24 hours.

Still, most jurisdictions are in the process of figuring this all out.

"I've never held a news conference like this before," San Diego District Attorney Bonnie Dumanis said at a press conference last month. This was in the aftermath of the shooting of Fridoon Rawshan Nehad, who was unarmed when he was killed by cops on April 30, after police responded to a report of a man threatening people with a knife. (Nehad was later confirmed to be holding a metallic pen.) San Diego police initially refused to unearth the footage but acquiesced after a federal judge ordered its release. At the conference, Dumanis went through footage from several videos, describing the sequence of events down to the shots fired and the officer attempting to stop the bullet wound from bleeding with his finger.

Meanwhile, leaders of some cities and police departments have dug in their heels. Chicago officials waited 13 months to release the video documenting McDonald's death. It was only last week that the city dropped its opposition to the airing of videos documenting the death of Cedrick Chatman, also 17, the day before a judge was expected to order release of the same footage. Chatman was killed three years ago, his case representing yet another death where the family's attorney says the video differs dramatically from police accounts. In the video, Chatman is seen running from the cops as one officer stands back and shoots at him.

The hope for those who want to see more videos released is that dishonesty on the part of the cops has a better chance of being exposed—and discouraged.

"Before we had video, it was always a he said-she said situation, putting the word of a uniformed police officer against an accused criminal," explains Stanley of the ACLU. "Judges, juries, the public, [and] prosecutors always tended to believe the police, and so the fact that video exists is crucial."

The mere existence of video far from guarantees that justice will be served, however, even if it is widely seen as incriminating. Some argue that the acquittal of the officer who killed Eric Garner in 2014 and the decision not to indict Officer Timothy Loehmann, who shot 12-year-old Tamir Rice that same year, suggest video is no panacea for bad cops. But prosecutions do seem to be somewhat tied to the existence of a video record. McDonald's case is one example: Officer Jason Van Dyke is the first cop in almost 35 years to be charged with murder in Chicago for an on-duty shooting.

It's also hard to say with any degree of certainty that we'd even know the names of the small fraction of victims who have made national headlines were it not for video documentation. In fact, it's brought to light deep-rooted issues of police abuse in our country, says Stanley. "I think a lot of white middle-class people haven't experienced anything of this nature with their police officers, and just haven't believed that it takes place," he says.

"Video is a game-changer," argues Jamie Kalven, the activist journalist who wrote a Slate article last February arguing for the city's release of the video of Laquan McDonald's death.

In that piece, Kalven seemed to predict how Chicago's handling of that video could devastate police-community relations, writing, "The McDonald footage will come out, but a great deal turns on how it comes out. Will the city be forced to release it in a way that deepens the crisis of public confidence in law enforcement, or will it be released in a way that helps restore the 'foundation of trust' between residents and police on which effective law enforcement depends?"

The question of whether, and how, to release videos and shootings is far from an academic one: Already this year, 47 people have been shot and killed by the police, according to the Post.

"At a time when people are demanding transparency, and when departments want to provide more transparency, we have to look at ways we can do that," says Elise Armacost, director of public affairs for the Baltimore County police department.

"But at the end of the day we also have an investigation to protect."

Follow Camille Pendley on Twitter.

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