Sunday, May 1, 2016

However, it's still a secret police bill (body cameras)

When I read the Latz/Cornish (SF498/HF430) body camera legislation for the first time, two points came to mind, it was written by police interests for the police and it was barren of any accountability/transparency mechanisms for the public.  In other words, a secret police bill.

I called it a terrible piece of legislation to both legislators when I saw them to discuss their proposal.  One legislator was very direct to me whatever the cops want that is what it will be.  To the Senator I said it was important for three things for the bill: (1) ability for people to know when they are being filmed, and using a mechanism such as consent or a strong notice provision (particularly when in home);  (2) videos from body cameras filmed in public should remain public with current privacy protections in law;  and (3) to address the fast paced technology of body cameras such as facial recognition, live stream, and the video becoming the "document of record."

There were some revisions on the Senate side, but still tilts towards secrecy.  Currently, the Senate bill does not allow the public general access to any body camera video other than when a dangerous weapon is used, or use of physical coercion that causes substantial bodily harm, and it's in a public place.  In other words, almost all body camera video will never be accessible to the public.

Nevertheless, even with modifications the bill is still dangerous.  The main problem it had, it still has. It maintains to deserve the tag what I said in the first paragraph, it's a secret police bill.

The legislation places overwhelming power with law enforcement agencies.  It allows them to interpret language and be discretionary which makes it hard for the public to get access to body camera videos even in what the current Senate bill proposes.  Even places barriers for the subject of the video to get access.  The bill gives the impression that there is transparency to make police accountable with use of body cameras, but it provides little.

The bill sets out guidelines for the benefit of the law enforcement agency, not for the purpose of why body cameras are being adopted in the first place:.  As Mayor Hodges so clearly stated about body cameras they "bring increased accountability and transparency for both the police officers and for the public."  The bill builds it's wall to help the police agency, but not necessarily the public.

The proposal is is below par and awkwardly written.  It is confounding and and allows interpretations from the agency view to make it defective even for the limited release of body camera videos which the bill proposes  It suppresses access to public data.

The bill clearly states, for example, the video would be released to the public if there was physical coercion when there is substantial bodily harm and if in public, but at the same time an agency could say it does not meet their definition of what "substantial bodily harm" is therefore the video is not released.  So where does that leave the public and the promise of transparency and accountability.

The law enforcement agency can do almost whatever it wants to do with the body camera video collected and stored.

For example, when an officer enters your home with a body camera it collects and gathers a great amount of "government data".  What magazines you read which are on your table, the way you live, the food you may eat which is on the kitchen counter, are among the details it captures.  The role of the body camera is to file and save for another time.  Not to rely on the human eye and memory, but to rewind and enhance the digital film to really see what is going on in your home.  All done without your specific consent to film or possible knowledge of the camera.

An officer told me off-the record how law enforcement agencies are looking forward to the treasure trove of videos they will get for intelligence purposes and parallel investigations.

There is no requirement in the bill for a specific consent provision or notification for body cameras filming in your home when there is not a warrant or emergency situation.

In another section of the Senate bill, it provides that body camera video in an inactive criminal investigation are to be private.  In other words, for example, video that documents arrests, incidents that involve use of hold restraints and use of Tasers, even evidence used such as statements by witnesses will not be available to the public.  It appears also body camera video used in evidence in court where there is a conviction would not be available to the public.

The likely and probable abuse of police power hidden from the public is real.  And daunting.

A recent KARE 11 report highlights what law enforcement officers can do and if it was on body camera video the public or news media would never know with the Senate bill or Cornish's.  Two officers found an individual in a car appeared to be under the influence.  They found out he was a cop.  Rather than cite or arrest him he got the treatment of “Professional Courtesy.”  An attitude given to other officers who find themselves in precarious situations as this officer was.  Per the KARE 11 report:  "He was not taken into custody.  No mugshots were taken.  His car was not towed.  Instead, the Blaine officers helped him arrange a ride home."

The "average Joe" would not get this kind of treatment, but maybe the Mayor, a police chief, local politician may, but we would never know if body cam videos are private and secret.

The bills will close down the ability for the public to oversee if law enforcement are doing their duties in a professional and constitutional manner.  If the public was interested to see if a law enforcement agency or it officers has or is doing racially biased policing (such as the Metro Gang Strike Force) you are out of luck.  No public access.

It precludes and bars access to most of the body camera video that documents the most routine of police actions such as arrest, stop and frisk, searches, and stopping of motor vehicles.  One would not be able to see if the pursuit was justified or if the use of force was necessary based on the resistance by an individual.  No public access.

Basically, all video in the public venue such as an arrest would be private and not available to the public.  How police operate on behalf of the public with the power they have should be able to be scrutinized for accountability.  The Latz/Cornish bills do not allow that.

The Senate bill strengthens law enforcement officials to refuse copies of the video even to those who have a right to it: the subjects.  Because of confused draw up of the bill a subject of the video could be denied a full documented copy of the video because of other subjects right to consent before release.  If no consent from other subjects, that part of the video is redacted, even the police officer who actions are part of the video tape, it appears if there is no consent.

The Latz/Cornish bills are skewed towards law enforcement interests not the public interest.  The bill seems to say government of law enforcement, by law enforcement, and for law enforcement.  The bill makes the public and media go through hoops and court to get the most basic of video to oversee agencies that have great power to arrest, detain, and compromise individual liberties and rights.

As top cop lobbyist, Dennis Flaherty states in public testimony last year before the Senate Judiciary Committee, the use of body cameras is a "new paradigm" which can make officers "more accountable and transparent to the public we serve." but in the same testimony he states "making data public really serves no public purpose." 

Law enforcement need privacy for delicate matters.  There is no question in that.  Current law recognizes that with a number of classifications already for victims and other situations.  The law allows law enforcement a fair amount of discretion already.

But the Latz/Cornish bill is not the approach and policy to take.  It is not an appropriate start for legislation on an issue as complex and intricate on the use of body cameras by Minnesota law enforcement.  And which has a profound impact on our rights of liberty and privacy.  The elemental philosophy underlying the bill is perilous and alarming.  And with three weeks left in session, the legislation cannot be fixed.

The legislation on body cameras this session should die.  Efforts should be put in motion immediately to draft a change to law for the 2017 session. That legislation should deal with the actual issues in a candid, pithy, and unclosed approach.

The data that law enforcement agencies are concerned about can and will be protected under current law til January. As evident by the City of Burnsville who have had body cameras for nearly six years.  Secondly, with recent guidance on body cameras by the Information Policy Analysis Division in regards to the Data Practices Act law enforcement have a lot of tools in their toolkit to keep data from public and the media if they so desire.



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