By Paul Watler
Cell phone videos captured in the street of police use of force involving citizens seem commonplace of late. The videos go viral on social media and dominate ensuing news cycles on television and in print media.
But it is not commonplace for the public to see – or news organizations to obtain – official body camera video of the incidents. In fact, current law in most states permits law enforcement to routinely withhold officer body camera footage after a controversial event.
Cell phone cameras are virtually everywhere all the time while police body-worn video cameras are virtually anywhere an officer works the beat in a metropolitan area. One form of video proliferates, and the other is often unseen by the public.
So, why the big disconnect between the public availability of video from these types of modern technology?
Obviously, private citizens enjoy a First Amendment right to disseminate cell phone video to the news media and on social media without censorship or restraint by the government. But it is government itself that produces police body camera video, and government always has a conflicted approach to public access to information in its hands.
Statutes enacted to authorize and regulate officer-worn body cameras sought to balance competing concerns. One fundamental reason for police adoption of body cameras was to enhance public transparency and accountability of law enforcement. Countervailing considerations sought to prevent public disclosure from hindering or delaying official investigations or prosecutions and to protect privacy rights of individuals depicted in video.
On the whole, the spate of lawmaking on police body cameras during the past decade lacked clear legal standards to weigh this balance case by case. Most states left the question to the complete discretion of law enforcement.
When police use that discretion to withhold body camera video it sometimes produces public frustration and distrust. In Rochester, N.Y., police apprehended Daniel Prude on a cold winter night as he ran naked in the street. He died a week later with the police treating the case as a drug overdose. Months later, body cam video emerged depicting Prude, surrounded by officers, as he lay handcuffed and held facedown in the street, wearing a hood placed over him by police, reportedly because of COVID-19 exposure concerns. According to news accounts, Mr. Prude’s family alleged that the video was withheld as part of a cover-up involving the police department.
In San Antonio this summer, police and sheriff departments refused citizen calls for release of body-worn camera video in two cases where men were shot and killed by officers responding to a mental health welfare check and a domestic violence arrest warrant.
Ending the mystery and perceived arbitrariness that now often surrounds requests for body-cam video would serve both law enforcement and the public. One solution may be to require an agency to articulate and document a legitimate and recognized law enforcement or governmental interest supported by the particular circumstances to justify withholding body camera footage, and to make such decisions subject to judicial review when requests by public or press for body cam video are denied.
Freedom of information laws in most states provide for judicial review when public or news media requests for information have been administratively denied. Yet, few states have provided for it in body camera video cases.
Some police chiefs likely will say this approach would hinder law enforcement while some members of the public would say it does not go far enough to assure police accountability. Inserting the judicial system as a neutral arbiter applying a specified legal standard may build public confidence in transparency laws and raise the trust factor for law enforcement. We are in an era which surely needs a boost in both policy goals.
Mr. Watler is an attorney in private practice in Dallas who has represented news media clients in court cases seeking access to police records. Watler is also a board member of the Freedom of Information Foundation of Texas. The opinions in this article are his own.