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A better way on police body camera video in Greensboro

by Roch Smith Jr.

Roch Smith Jr.

All Greensboro police officers are now equipped with onbody video cameras and the Greensboro Police Department (GPD) will not release any video recorded by these cameras. Mayor Nancy Vaughan and District 3 City Council representative Justin Outling have proposed policy changes that would provide a sliver of opportunity for some extremely limited access, but the proposal is a convoluted mess of bureaucratic uncertainty that invites politicization into what could be, and should be, a more transparent and straightforward approach—which I’ll describe in a minute.

But first, a little background.

Since first deploying on-body cameras in 2013, the GPD has refused all requests for release of any video recorded by them, declining to release videos of a police shooting, arrests, the issuance of a speeding ticket, traffic accidents and the moments prior to animal euthanasia.

Until recently, GPD claimed that the recordings were part of employees’ personnel files and, therefore, confidential under state law. But state law requires that information in personnel files be retained for 30 years—prohibitively expensive for these videos—so the excuses offered by GPD have recently shifted to say that the videos are records of “criminal investigations,” a category of information that state law does not make explicitly confidential nor public, giving discretion to the custodian of the record whether to release it or not. This discretion is what allows the police, for example, to release surveillance footage of a criminal suspect if they think it might help solve a crime, but they don’t have to—as they will not with body-camera videos.

The police have only cited their legal rationale for not releasing video and not offered reasons why it makes good public policy to keep these videos secret. City Attorney Tom Carruthers recently offered some insight though when he called policing “a brutal sport” and expressed the opinion that it is to no one’s benefit for video capturing use of force to be made public. This could not be more wrong. Keeping the public from understanding the nature of police interactions with the public is not a legitimate policy goal.

On the other hand, insight into police interactions is unquestionably in the public interest—even more so if they are especially brutal.

The Vaughan/Outling proposal tries to carve out a path for releasing some of these videos in limited circumstances. But it’s misguided. It falters because it begins by accepting the position of the police, that these videos are either records of criminal investigations or personnel records. Accepting the GPD’s characterization of the nature of these records, Vaughan and Outling then convulse their way through tortuous instructions for how the city would justify access to these videos.

Their policy proposes that video may (not will) be released “only by the City Council” but with the “consent” of the City Manager, a procedure that invites politicization and appears to give the City Manager veto power over Council even though he is employed by Council. It also says that, if the video “calls into question” (by whom, the policy doesn’t say) the performance of a police officer, the video cannot even be considered for release until the issue is “resolved” (whatever that means).

The proposed policy would allow a person recorded by a body-camera to “view” but not “possess” the video, and only with his legal counsel. It proposes to give police carte blanche to redact and obscure “highly personal details and other information” (also unspecified), from recordings before examination.

City staff estimate the cost of setting up the office and personnel to implement this policy at $250,000 initially with ongoing salaries of $200,000 per year.

The Vaughan/Outling policy reaches for paltry goals and is likely, in the best case, to result in very limited access, rarely to the public at large and only if someone can shepherd a request through a convoluted political and bureaucratic minefield of arbitrary criteria and uncertain authority. It also unnecessarily creates wasteful new spending.

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A Better Way

There is a better way—simpler, more transparent, aligned with the law and consistent with City Council’s original intentions for police on-body cameras.

When City Council first approved the use of police body-worn cameras, it was in August of 2013 with the unanimous (including Vaughan) adoption of a resolution that cited “enhancing public legitimacy and transparency” as a reason.

Clearly, Greensboro approved the use of these cameras for a public use that was separate and apart from their use as crime fighting tools: Public legitimacy and transparency. Our elected officials quickly forgot this. Instead, they allowed the police to hijack these videos, stake out the position that they are police property and not public and ignoring the reason City Council approved their use in the first place.

The police planted their flag and deemed themselves arbiters of any challenge to their position. The result is a diabolical self-reinforcing negative feedback loop: “Because we will not let you have the videos for purposes of public legitimacy and transparency they will remain used only for secret purposes and state law says you cannot have secret records.” The police have claimed an exclusive purpose for these videos that flies in the face of the public will as expressed unanimously by City Council when their use was approved.

This is how we’ve come to the effete and confused Vaughan/Outling attempt to claw back some public rights. Their policy starts with accepting the unjustified police premise and that’s the first step to nowhere.

Instead, City Council should reclaim the flag and plant it back where it was originally, explicitly and unanimously intended to be: On the hill of enhancing public legitimacy and transparency. From there, it is much easier to make access to these videos simple and consistent.

From the position of the Council’s original intention—that the videos are public records for the sake of public transparency—the City need not craft new policy and can just follow existing law.

Under North Carolina law, when a public record is used in a criminal investigation or for personnel purposes, it does not lose its status as a public record. The record of a speeding ticket doesn’t become confidential just because it is added to an employee’s personnel file. A building permit doesn’t become confidential just because the police use it in a criminal investigation. So reclaiming the original public purpose of these cameras means the police cannot put the videos they record off limits just because they also use them to solve crimes or discipline employees.

Just as importantly, however, doing it this way maintains the ability of police to use these videos in criminal investigations and for personnel actions. The police lose nothing while the public gains its right of transparency into and oversight of the interactions between the police and public. It’s a win, win… unless the police view public transparency into their interactions with the public as a loss, which would be a disturbing.

All that is required now is for City Council to have a little backbone; to simply stand up and say: “Wait a minute. We’ve gotten off track. We never said these cameras were only for police investigations. In fact, right off the bat, we said the opposite, that they were for public transparency and we are reclaiming that position.”

From there, the need for convoluted, expensive and tortuous policy regarding the release of these videos vanishes. To be sure, there are circumstances where videos may be justifiably withheld or altered, but state law and federal law already cover those. So instead of crafting new policy, all the city has to do is follow the law. If a video captures someone getting medical attention, a computer screen of confidential information, a person informing on a criminal or a domestic abuse victim telling a police officer where she is going to spend the night, existing law provides for those types of video to remain confidential. Rightly so.

Constitutional jurisprudence also dictates a distinction between video shot in public and private places. In public, there is no expectation of privacy. So, just as the City of Greensboro posts video to Youtube of kids and parents playing at city recreation centers, it can make public the video recorded by police in public places. Whether recorded by police or bystander, video recording in public is permissible.

Video recorded in homes or other private locations is another matter. There, people have a Constitutional expectation of privacy. But that is easily addressed too. Police video recorded in private places should require the permission of those who are recorded before its release.

The solutions are not complicated. They only seem so when trying to accommodate bad policy goals and misguided assumptions. Should Greensboro’s City Council garner the will to stand in the correct place, they’ll get this right. !

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