As citizens nationwide protest following the no-indict ruling in the Ferguson, Mo., shooting, police in Washington state wonder if their public records laws will prevent the adoption of body camera technology that could keep such a confusing scenario from happening again.
A mass request of police videos has law enforcement agencies around Washington state rethinking their dash- and body-cam programs.
In September, an anonymous Washington state software developer began making public records requests to most police departments in the state, asking for copies of “any and all video” on file. The request was viewed as a burden for most departments, raised questions of privacy and transparency, and led to the cancellation of at least two body-cam programs.
On Nov. 20, the Requester’s persistence also earned him partner status with the Seattle Police Department, which will use his expertise to hone its evolving video collection, retention and distribution policies.
Following the no-indictment ruling of Officer Darren Wilson in the Michael Brown shooting in Ferguson, Mo., racial tensions are high in communities across the nation, and issues around police body cameras are relevant as they've ever been.
Changing the Law
The Requester, who asked for anonymity so strangers wouldn't show up at his house and police wouldn't harass him, said he began this project because he wanted the public disclosure laws and police camera laws to be changed.
In Washington state, public disclosure laws put no limit on the number of records that can be requested, nor do they require that the person requesting have any connection to the information being requested. A Washington State Supreme Court ruling in June required the Seattle Police Department to honor a dash-cam video request made by local news organization Komo. The ruling set a precedent that placed police video requests under the umbrella of the state’s Public Records Act.
“What I would like to have happen is that video cameras be mandated for law enforcement, both in-car and body camera,” he said. “And what I would also like is that the Public Records Act become the publishing act.”
The Requester explained that he would be happy if more police departments routinely published video they collect, a practice few departments have adopted.
Washington state established its public records laws in 1972 to promote transparency of government through sharing of paper documents – video records were not a consideration then. In 2014, police body cameras are growing in popularity among police and the public alike, but fears among Washington police administrators of being unable to fulfill bulk requests like the one made by The Requester are slowing adoption of the technology and forcing another look at the state’s public records policies.
The 'Fail Mary' of Police Cams
The Requester said he’s gotten varied responses from police departments and, in some cases where departments said they don’t have the resources to review and edit thousands of hours of video, The Requester has settled instead to accept a small collection of videos of the department’s choosing. This was the arrangement made with the Tukwila Police Department and he said that department's video selection surprised him.
“One [video] I really don’t understand why they picked,” he said. “It was basically a police brutality video.”
This two-minute video, now posted on his YouTube page, shows a man in a car that is pinned against a tree. An officer can be heard shouting at the man to “keep his hands up.” The man in the car puts his hands up briefly and then appears to rummage around in his car. The man then gets out of the car and, after repeated requests to “get on the ground,” he wanders around and reaches into his back pocket, reaches back into his car and either deposits something or grabs something. At one point the officer shouts, “I think you have a gun! Put your hands up!” Sirens of approaching police cars are getting louder as the officer’s commands continue to go ignored. When back-up arrives, the suspect puts his hands on the back of his car and an officer can be heard saying “Yeah, tase him. He doesn’t listen.” An officer then approaches and tases the man, who stiffens and drops like a felled tree, and then begins screaming as the police handcuff him. That’s where the video ends.
The Tukwila video demonstrates a few of the differences between paper records and video. A written description of the account is less dramatic and less personally invasive for the parties involved. A person might not mind being described in a written account as much as having a video recording available for everyone to see.
Another difference is that a carefully worded description is harder to misinterpret than video footage. The description above attempts impartiality, but also takes a few liberties in narrowing how the reader can interpret the events. Any given police report is sure to do the same, but 100 people could watch the Tukwila video, each departing with a different idea of precisely what happened and who was to blame for things ending as they did.
This limitation is embodied in a 2012 National Football League officiating controversy known as the Fail Mary. The controversy centered around whether the final play of a Seattle Seahawks/Green Bay Packers game should have resulted in a game-winning touchdown or an interception. Even with a stadium of 68,218 spectators, a national TV audience viewing the incident from multiple angles in slow motion and high definition, and a crew of officials who were watching intently for any kind of foul play, what happened that day changes depending on who tells the story. The NFL received more than 70,000 phone messages from disgruntled fans regarding the incident, and despite careful analysis on Wikipedia stating that the officiating decision to award the touchdown was correct, there are many today who would still dispute that call.
The point is that ultimately, video footage of an incident isn’t an antidote for public disagreements – it’s just another tool that police can use. And disclosing video opens the door for discussion and scrutiny of both police and suspect behavior.
The Requestor vs. The Police
The Requester maintains that his intentions are constructive, that he wants to effect change, but many, including some police, are not so sure. In one news article, a journalist who did not interview The Requester suggests that he is attempting to create a business out of the videos he collects, which could be accomplished either through generating ad revenue on YouTube or by adopting the model of mug shot websites, which charge people a flat fee to have photos of their embarrassing incidents removed. The Requester denies he has any intention to profit from the videos, and, in fact, none of his videos are monetized, nor do they have enough views to constitute anything approaching a viable YouTube business.
Taking things one step further, The Requester said he may start a nonprofit dedicated to the examination of public records issues pertaining to emergency services.
“There are civilian review boards, but there isn’t really review by communities as a whole,” he said. “You don’t have thousands and thousands of community members watching videos or looking at police reports and asking tough questions, so I think that possibly could happen because of the work I’m doing and that would be a very interesting outcome.”
As for the police chiefs and sheriffs interviewed for this story, they had varied attitudes toward The Requester. They all gave the impression that they wanted to comply with his request, and they all praised the advantages of body cameras and transparency of police operations in general. But it was clear that some weren’t pleased with The Requester’s approach, because departments with already-limited resources are now strained further as they attempt to avoid the penalties of not complying with the state’s public records laws. In other cases, camera projects have been slowed or even shelved.
Video Requests Affect Logistics, Budgets, Privacy
The city of Poulsbo has more than 1,000 hours of video from six months of recording, and Police Chief Alan Townsend said the department is now waiting to see what the Legislature does before continuing using their cameras. Enforcing the law in a city of 10,000 inhabitants, the Poulsbo PD doesn’t have excess resources to handle The Requester’s full request.
“We figured if the sergeant who’s in charge of our video program, if he spent an hour a day, five days a week, we would maybe be able to get this stuff viewed by 2017,” Townsend said. “But the reality is that’s just real-time viewing. That’s not the time it would take to redact the videos, to block the sound out that might be required and also black out faces and so forth.”
Logistics problems are a common complaint among police chiefs fielding the bulk request. Another is privacy. “We’re taking video of people in their most private moments a lot of times, especially people in their homes, and I take issue with the fact that somebody wants every video and we’re just going to allow them out, basically impacting everyone’s privacy,” Townsend said. “We see the best people on their worst days, and some of these can be mental health issues or domestic incidents.”
Even worse, he said, video shot inside someone’s home following a burglary could be used as a road map for burglars to commit future crimes. “The laws weren’t written for this type of technology," he said, "and we really need to make some changes to make them more effective."
Townsend said he has no problem reviewing, redacting and disclosing select videos for people who are somehow involved with an incident, and their department does so regularly. But requests like The Requester’s are disrupting the adoption of what he considers a game-changing technology. “I don’t think other law enforcement agencies in the state are going to go to this technology if there isn’t some progress made to reduce these ridiculous requests, because nobody has the staff or the time, and no one wants to give out peoples’ private information like that,” he said. “Which is unfortunate, because they’re a great tool, and we all benefit.”
Seattle’s King County was less impacted by the bulk request because its police have only a few dash cameras and no body cameras. But King County Sheriff John Urquhart said that this request has him second-guessing a possible move to body cameras.
“I couldn’t afford to do it right now,” Urquhart said. “I’ve got 400 and some patrol deputies out there, and it’s a real simple math problem. If all of them were wearing body cameras eight to 10 hours a day, do the math. … It’s going to kill the body camera program in the state of Washington, and that’s a shame because it’s a great program. I am 110 percent in favor of body cameras for my deputies.”
The King County Sheriff’s office regularly posts video online, which The Requester mentioned he likes, but those are helicopter videos, which the chief noted are a world away from body camera videos. “On the helicopter, we’re not faced with victims of domestic violence, we’re not faced with dead bodies, we’re not faced with kids, juveniles, we’re not faced with privacy issues, people that don’t want to be recorded,” Urquhart said. “The helicopter video is not in somebody’s house.”
A common complaint heard from the public is that the police don’t want to be recorded because officers don’t want to invite public scrutiny into their workplace. Thomas Zychowski, a reader of local news website KomoNews.com,commented, “Professional liars don't want to be filmed or be filming their lies.” Urquhart said police are already scrutinized constantly – it’s just part of the job.
“The reality is, we the police have nothing to fear from the public looking over our shoulder,” he said. “We are Monday-morning-quarterbacked to death. If you are afraid of being Monday morning quarterbacked, you should not be a police officer, and you certainly shouldn’t be a police chief or sheriff. I am unequivocally in support of body cameras for police, but there are logistical and cost aspects of it that have to be worked out first.”
In September, the city of Bremerton completed a six-week body camera pilot with a few officers -- who said they can’t wait to get the cameras back and use them regularly, said Bremerton Police Chief Steven Strachan. But Strachan also said he didn’t know when that time will come now that The Requester has illuminated the conflict between the state’s disclosure laws and what law enforcement agencies are capable of providing.
“We were going through our budget process and my full expectation is that this would be fully funded by our council once this is resolved," Strachan said. "But I told them that we’re not going to spend tax dollars just to put this on the shelf." So for now, Bremerton will wait.
Like the other officials interviewed for this article, Strachan said his department’s experience with body cameras was entirely positive. “People behaved better, their interactions became far less confrontational, and when you get down to it, that’s really the center of our profession,” he said. “If you’re talking about how to really improve public safety, that’s a really significant change.”
Despite the challenges around adopting police body cameras in Washington, Strachan took an optimistic viewpoint. “My attitude is good policy and technology should move forward, and there is an element of, ‘We’ll figure it out,’” he said. “I think we’re at that point now where if we’re going to figure it out, it’s really up to the Legislature to get their arms around the unintended consequences of our public disclosure law.”
How Much Is Too Much?
Strachan’s department publishes a weekly newsletter, and he hosts a weekly TV show called BPD Update and runs a Twitter account in the interest of improving police transparency and public outreach -- but the public is still not satisfied, he said.
“There are people who will say, ‘I want you to take every second of video, every minute, and put it all on YouTube. That’s true transparency.’ But what you’re doing is just creating voyeurism and invading the privacy of regular residents that call for valid reasons,” he said. And if people think that calling the police means that footage of them in their home will soon be visible online, then people will be afraid to call the police, and they don’t want that, Strachan added.
“The time has come in our state for us to have this thoughtful dialog in our state, and the question is going to be, ‘Can we do that?’ without demonizing and making false assumptions about everybody involved,” he said. “Let’s assume positive intent of everyone involved.”
Posting every second of police video to YouTube may sound extreme to some, but it’s not far from what the Seattle Police Department (SPD) has in mind. SPD Chief Operating Officer Michael Wagers said SPD is now pursuing technology that would allow the automatic online posting of most police video collected. The department is not waiting for legislative change before proceeding, he said. The Requester, who dropped his request with the department, is now a partner on the city’s project.
SPD has had dash cameras installed on all patrol vehicles for several years. The department is sitting on 360 terabytes of video, literal lifetimes of patrol footage. “We burn 7,000 DVDs per month fulfilling public disclosure requests, also providing it to prosecutors, public defense attorneys and courts. That’s 1990s technology. If someone gave me a DVD, I don’t have a device to play DVD on. So we understand the frustration of a requester,” said Wagers. Reviewing and redacting is a manual process delegated to five employees who do nothing but burn DVDs and hand that video to employees who examine the footage frame-by-frame, he explained.
The department is also planning a wearable camera pilot of 12 patrol and bicycle officers. They are still planning to go ahead with the pilot, but The Requester has them wondering if they’re ready, Wagers said.
“The policy that we have, I think it’s going to be a model policy for the nation,” he said, adding that the department has taken input and feedback from the ACLU, the Community Police Commission in Seattle, the Department of Justice, the monitoring team, the unions and the International Association of Chiefs of Police, and it has looked at the best practices guide published by the U.S. Department of Justice's Community Oriented Policing Services and the Police Executive Research Forum.
"So we feel we’re on very solid ground when it comes to our policy," he said. "But of course this request makes us reconsider whether we should postpone it until we can handle some of the back-end issues in terms of producing the video and being able to redact the appropriate material.”
Wagers admitted that privacy is a consideration, but noted that this video and the demand for it will only increase, so they’re looking for ways to engage the public to solve their logistical problems. This winter, he said, the city will host a hackathon in which SPD will provide police video and issue a challenge to those who might have an automated solution for redacting and posting the video.
It's just a matter of time before these videos are released a matter of common practice, Wagers said, so they may as well be ready. Washington state Attorney General Bob Ferguson ruled on Nov. 24 that police would no longer be required to notify people they were being filmed while wearing body cameras, making the use of such technology an expectation among the public rather than an exception to normal police behavior. SPD supports the ruling, Wagers said, because he doesn't want police to be thinking about cameras and logistics issues when they are in the middle of dangerous situations.
And when all is said and done, Wagers said, all this video footage is going to be a good thing for the public, for police and for the public image of police officers. “Police work is messy, and so you’ll see that in the video data, as well,” he said. “But we’re confident that in that world, you’re going to see police officers doing things the correct way.”
Adjusting Technology and Policy
The Pullman Police Department (PPD) has mandated the use of body cameras for its officers since April 2013. The use of 32 cameras has since generated 2,600 hours of video. “It would take years to comply with this request,” Pullman Police Chief Gary Jenkins said.
For Pullman, it might take even longer, because PPD is one of the few departments that has opted to notify every person in every video so they can have an opportunity to petition the court should they not want their images released. They thought that was an important privacy measure, Jenkins said.
“The request is having a very chilling effect on this equipment, which is probably the most significant advancement in accountability and transparency for law enforcement in years,” Jenkins said. “So unless we can resolve this legislatively, I think this is going to have the opposite result than what we really want in law enforcement.”
While most police interviewed for this story called for a change to legislation, the American Civil Liberties Union of Washington does not. ACLU Technology and Liberty Director Jared Friend said his organization wants stakeholders in the police community to find a technological and policy-driven solution instead.
“The ACLU is a proponent of Washington’s system of access to public records,” said Friend. “We think it’s an important tool for government oversight, and for government transparency, so we don’t support limiting the Public Records Act broadly or creating exceptions. It’s important that citizens be able to create requests that aren’t necessarily specific, so they can gain insight into government activities.”
In short, Friend said, privacy is important, but it’s up to police to adjust their technology and policies to meet the requirements of the existing law, and not the other way around.
This article was originally published by Government Technology.
Colin Wood |
Colin Wood has been writing for Government Technology and Emergency Management since 2010. He lives in Seattle with his wife and their dog. He can be reached at cwood@emergencymgmt.com.
www.emergencymgmt.com
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