Saturday, May 21, 2016

Governor Dayton, veto the body camera bill

Less than several weeks after the determination that Jamar Clark's death (shooting by Minneapolis officer) was justifiable by Hennepin County Attorney Freeman, the Minnesota Legislature will be passing a bill that will nearly make all body camera footage unavailable to the public without going through indomitable barriers and court.

The Conference Committee which reached agreement is being lauded by Senator Latz and Representative Cornish as a balanced bill for transparency, accountability, and as a vehicle of building public trust.  What was not mentioned is the impediments that the individuals including the subjects and public will have in getting access to the footage. Also not cited are the added protections it yields to officers who may be under inquiry, likewise the secrecy of officers bad behavior which the public will never know about or see.

The calls for greater accountability and transparency. nationally and locally with the use of body cameras, is being hacked to zero by the SF 498 Conference Committee report. (agreed upon bill)

Language in the bill allows an officer to review footage which can be evidence before they do a report or make a statement.  A practice that community groups and organizations from NAACP to American Civil Liberties Union oppose.  Made-to-measure statements done by officers is the fear that critics have of this provision. Tainting the evidence.  Officers under investigation for wrong doing would be able to review their own evidence (body camera footage) before the investigators could question them in a formal report or statement setting.

The City of Minneapolis are endowing hundreds of body cameras to their officers to build trust, accountability, and transparency.  This action can show that there is nothing to hide as their officers do their duties on the public streets and be answerable.  But this is for nought. 

The body camera footage is the document, the 21st Century document, the public should be able to have access to the video in situations such as arrest and general use of force situations.  To control body camera video with barricades of judgment and construing such words as what is "substantial bodily harm" or "common sensibilities" means the body cam footage is secret and defeats the purpose of the cameras.

There are parts of the legislation that allows for narrow public access but it is blocked with mechanisms of interpretation by the same agency that the public may have interest in to see if they are doing their job.  Why it is important for clear and unfettered access for the public in specific bearings, such as officer shootings and demonstrable use of force.

The deployment and use of body cameras and what the governing rules should be are knotty and arduous.  But what the Legislature will be passing is not what it should be. Without significant input from grassroots organizations, and the greased passage of bill by the Minnesota House in last 10 days ending with the Conference Committee report yesterday, the bill is the one that law enforcement wants and is chuckling behind the scenes saying......we have fooled the public on this one!

Even so, under current law police departments such as Duluth and Burnsville, as example, have implemented body camera programs and have made accountability and transparency a preference with protecting people's privacy.  Minneapolis is set on doing body cameras whether or not the law changed.  Instead, of rushing through this drastic and exorbitant legislative proposal, the Legislature may want to hold back, but I do not see that happening.

So, who does the responsibility sit upon, the Governor.  Governor Dayton can either sign or veto the body camera bill.  I urge him to veto the bill and the public should also. 

As I said in a previous post:

Governor Dayton can take the lead in doing this by having a task force appointed with various groups and interests represented in a fair and open matter.  With this action the Governor ensures that Minnesotan's will realize what the use of body cameras will do and the power of this new technology and what robust safeguards are needed.  Senate File 498 is not it, the legislation makes law enforcement who have considerable power over the lives of Minnesotan's the least accountable to the public with this new tool.

These are all the posts I have done on body cameras sorted by date.

Saturday, May 7, 2016

Minnesota law enforcement neuters police oversight and accountability

Minnesota law enforcement ambitious attempts to improve community trust, transparency, and accountability with use of body cameras took a turn for the worse, with law enforcement agencies and interests themselves lobbying legislators to turn the bill to make it hard to trust, less transparent, and no accountability to and for the public. (say one thing do another)

Lobbyists and lawyers from the Minnesota Police Chiefs Association, League of Minnesota Cities, Minnesota Police and Peace Officers Association, along with others from similar interests have been putting on great pressure to pass their "owned" bill on the issues that really matter. (Some funded directly or indirectly by taxpayer dollars)  The legislation allows for secrecy of documented police behavior on public streets when they are on duty.  Sets up barriers for subjects and the general public to gain access to body camera videos.  Even the limited footage allowed to the general public allows agencies with broad discretionary power not to release. No specific consent or notice to film you and your abode when agents of government come into your home in non-emergency situations with digitally enhanced cameras, among some of the goodies law enforcement interests got.

Appears that Minnesota Police Chiefs Association are on the same side with the Minnesota Police and Peace Officers Association.....promise transparency and accountability with use of body cameras, but then undercut with doing action and talking out of both sides of their mouths.

Nothing new.  Have seen it many times.  Are legislators really going to buy into these efforts by the special interests of law enforcement without knowing the full ramifications and consequences of these unique bills?

This is the first attempt in 35 years to mass a major shift of police information that have been public to become secret at the Minnesota Legislature with hardly any policymakers asking the tough questions. I asked Rep. Cornish when bill was introduced last year about if he would be open to changes.  The die was already cast with  him telling me whatever the cops want that is what it will be.

I was hoping for changing the culture of how law enforcement works in Minnesota with greater oversight, community trust, accountability. and transparency with body cameras.  It basically is going to be used as an investigative and surveillance tool.

It is important that any body camera law not be used to shield a policeman's nightstick, gun, or power to be used in secret without accountability and transparency.  The body camera issue is complex and the legislation needs to be looked at in detail.  This has not happened.

Wednesday, May 4, 2016

When the police enter your home with bodycams

Most of us in Minnesota have come to realize, our home, abode, 'our place' is the "very core" of the Fourth Amendment for the protection of our privacy.  It's where an individuals expectation of privacy is at its highest.

But this is being challenged by new technologies, such as the body camera.  The body camera which is digitally enhanced, possibly high definition, with the ability of what is captured to be magnified, zoomed, looked at and reviewed over and over again.  The body camera systems also have other enhanced features such as facial recognition and LIVE-stream. The video is grabbed and stored by government, in this case, law enforcement.

Body cameras have the ability to diminish the domain of your guaranteed privacy without your consent, knowledge, or wherewith all.  Sizes of body cameras range from the size of a fist to a large button, and technology is even making them smaller with wider angles.

Law enforcement is of the view you consent to have them come into your home, whatever appendages like a body camera they have on whether you notice it or not they can record.

Should law enforcement officers need your specific consent when they knock on your door in non-emergency situations, to record you and the inside your home?  My answer is yes.

A POLICE OFFICER CANNOT ENTER YOUR HOME WITHOUT YOUR CONSENT, UNLESS there is legal warrant or exigent circumstances exist. The law is clear that (1) they must have consent and (2) they must seek at the time they are seeking entry. There is no guessing about what or when. Should officers be able to record and tape in your home without your permission, when they are there for non-emergency services and you give them acceptance to come in your home? My answer is no. Specific consent should be needed.

If one invites an officer in your home in a non-emergency call for service, law enforcement does not want the duty to ask your specific permission to videotape.  That is the issue.  If they must request CONSENT to enter, why are the Police Chief's and other law enforcement interests so opposed to getting CONSENT to create potentially a permanent record of your place of sanctuary????

With the ease of body cameras of their size and where they can be placed and even without your knowledge, in non-emergency situations, when in your home the device is filming as a continuous "search"  (protected by the Fourth Amendment) of anyone or anything that hits it's lenses. The sensitive ears on these devices also pick up the words.

Again this is non-emergency calls such as about dogs barking, cars parked too long on the street, noisy neighbors, writing reports and taking statements which is the great majority of service calls to a home. The police are not calling on you to see if you are drug dealer, or do money laundering, or suspect in a crime.

If two officers come to your home without a warrant or not in exigent circumstances with body cameras rolling continuously their "search" is not limited to the circumstances of what brings them there.

When officers are invited in the home, they do like most of us when one visits someone's house, discovers things visually.  Such as the book that is on the end table or the weird piece of furniture one may have. And one may remember it.

But Minnesotans don't expect law enforcement officers to look at their letter on one's desk, glimpse long into the various rooms that they may pass............But this is what body cameras literally do.

A quick glance in the living room or the bedroom on the way to the kitchen may not inform much with the human eye.  But the digitally enhanced, body camera, possibly high definition, with the ability of what is captured to be magnified, zoomed, looked at and reviewed over and over again can.

This is the nub of the question.  Should government be able to come into your home with a body cam on a non-emergency situation and videotape your words and whatever it sees which far exceeds the rationale for law enforcement being there in the first place without your specific consent to record. Can they do with a body camera running the very thing a warrant protects against - record forever the exact details of your place of abode.  It is technical slight-of-hand to capture evidence.

With body cameras there is intrusion in our homes that is different and unforeseen.  Granted these tools can be used to help law enforcement.  But should they be used in non-emergency situation in our homes without specific consent to record, without a warrant, and not in exigent circumstances.

Law enforcement takes the position that all videotapes will be all private that are filmed in the home, therefore we do not need to get consent or even a strong notification which can enhance an individuals choice.  I disagree with the premise just because the body cam videos are private one does not need consent specific to record in the home.

We live in the 21st Century.  The Fourth Amendment to have real meaning with new technologies such as body cams which is an investigative and surveillance tool needs application of its true context and spirit

 "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly ...

Law enforcement has made it clear in the body camera debate at the Legislature, their position, is that you have NO expectation of privacy IN YOUR OWN HOME. When you invite an officer in your home in a non-emergency situation if you do not know or not notice (remember the size range from large button to fist size of body cameras) or do notice...bye-bye to your Fourth Amendment right to specifically consent to be recorded.

A body camera captures more nuts and bolts (views and hears) than a human eye and ear.  Captured to the cloud or server the body camera footage which the government has can be used and reviewed over and over again.

The home has had a deep and protracted appreciation of "special protection as the center of the private lives of our people."  The Legislature should affirm and acknowledge this and require consent specific to body camera filming in non-emergency situations. Let the Fourth Amendment be realized with this new tech tool, the body camera, draw a firm line at the entrance to the home if there is no warrant or exigent circumstances, consent should be clear cut to record the intimate specifics of an individual and contents of their home.

It is the ordinary citizen who will be fooled by the officer’s friendly demeanor and failure to notify or to request consent to filming. Those in the know, such as lawyers, will condition their consent to an entry on such things as turning the body cam video off, staying in one room, and leaving upon demand. All legal restrictions that most Minnesotans will not think of.

.Updated May 5, 2016

Tuesday, May 3, 2016

Senator Latz, tell the whole story

There is no question the issue of body cameras is an intricate and complex one.  Secondly, as someone who has been at the Legislature lobbying for four decades I am very much aware of behavior of this institution and the elected officials who make it their workplace.

When there is a convoluted issue which SF 498 presents to policymakers, for many they may chose to ignore the bill or take partial interest, but for sure they rely on a Senator or two to understand and to explain the bill.  With body cameras, work has been done on this issue by Senator Ron Latz. 

A Chief Author of a bill in my judgement there is a special responsibility to be clear and concise what their bill 'truly does'.  In the case of SF 498, Senator Latz did not do this.

As someone who has been involved in the body camera issue since the fall of 2014 I am very much aware by current law a fair amount of video from body cameras are not available to the public and will never be.

Under current law, video dealing with sexual assault, child abuse, vulnerable adults are among other classifications that video would never be released to the general public.  Secondly, law enforcement has vast discretionary authority to not release the data in many situation and be available to the public. This is a guide issued by the Department of Administration which states the current law.  Matter of fact the City of Burnsville have had body cameras for six years, Duluth has had them for two years, both under current

Senator Latz throughout his advocacy of the bill has used the argument "all data" will become public if the Legislature does not act.  I confronted him about his statements off the floor last year and stated it was misleading. In public testimony it was clearly stated by representatives of Minnesota Coalition on Government Information that current law makes private many of the situations used and described as examples. He continued to even ignore that.

Again, when he stated it yesterday "All of the data collected by the devices is public," I was stunned.

The Senator is entitled to do what ever he wants to do, but when the person is not forthright on a dominant rationale for the bill, sunshine needs to be brought to it.

I disagree with the Senator that the bill is balanced.  And discussion can be done on it's merits, but do not obfuscate and instill fear with not being accurate and on the level.

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.