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A central concern has been finding a balance between privacy and transparency.
Body-worn camera footage that shows New Orleans police officers shooting guns at people, and using other types of force, will be reviewed and released publicly in accordance with a new set of guidelines that the city’s police department unveiled on Wednesday.
The department has not previously released body-worn camera recordings to the media or the public, except in certain instances where the footage was used in court cases, according to a department spokesman. Although the new process involves input from outside agencies, including the New Orleans City Attorney’s Office and the U.S. Attorney’s Office, Superintendent of Police Michael Harrison will have the final say over whether to release recordings.
Since 2013, the city’s police department has been working through a reform process that is mandated under an agreement with the U.S. Department of Justice. That agreement is known as a consent decree. And with it in place, it is possible for a federal district court judge to override decisions Harrison might make to withhold footage, and order that the video be released.
The new video disclosure policy only pertains to footage of so-called critical incidents.
This category covers situations where an officer uses force that results in a person getting killed or hospitalized, fires a gun at someone, or strikes an individual in the head with an impact weapon like a baton. Vehicle chases that cause deaths or injuries are also considered critical, as are situations where people die while in the police department’s custody.
In addition to body camera recordings, the policy will apply to other videos as well, including those recorded by dashboard-mounted cameras in police vehicles.
“Now more than ever, critical incidents involving law enforcement officers are being captured on video, and we have to be proactive in how we communicate this evidence to our community,” Harrison said in a statement on Wednesday. “These recordings help to eliminate he-said-she-said accounts of an incident and provide an unbiased account of events.”
A Nationwide Obstacle
Pressure for greater police accountability in the U.S. has ramped up during the last two years, amid a string of high profile, controversial police incidents. Most of these have involved the deaths of unarmed black men and youths. But as law enforcement agencies around the country have moved to outfit officers with body-worn cameras in an effort to be more transparent, stumbling blocks have emerged over how to handle footage the devices record.
A central concern has been finding a balance between privacy and transparency.
With their body cameras rolling, officers can find themselves facing someone who has committed suicide, a person having a mental health episode, or a couple in the midst of a domestic violence situation. Many people cringe at the thought of this type of footage becoming public through an open records request. There are also hurdles when it comes to the money, time and technology needed to redact information in videos, by blurring bystanders' faces for instance.
At the same time, police departments have faced scrutiny for withholding footage.
In December, Chicago Mayor Rahm Emanuel announced that the city’s police superintendent, Garry McCarthy, would be dismissed amid a controversy involving dashboard camera video that showed an officer shooting a black teenager, Laquan McDonald, 16 times.
Video of the incident was released in late November, 400 days after the shooting took place, and hours after Jason Van Dyke, the officer who shot McDonald, was charged with first degree murder for his death. After the footage became public, protests broke out in the city.
“Every day that we held on to the video contributed to the public’s mistrust,” Emanuel said in a speech in December, according to a prepared copy of his remarks. “And that needs to change.”
Decision Within Nine Days
Police officers in New Orleans have been equipped with body-worn cameras for nearly two years.
The department began using them in May 2014 and now has 620 of the devices. Every officer who responds to a citizen call for service is issued a body-worn camera and is required to wear one, department spokesman Tyler Gamble said by email Wednesday.
Gamble said the newly announced guidelines for reviewing and releasing body camera video would go into effect immediately.
The process outlined in the policy begins with the police department’s Public Integrity Bureau. Among other things, the bureau directs investigations into allegations of misconduct by New Orleans city police officers.
Within 48 hours of a critical incident taking place, the bureau must provide any video recordings from the scene to several partner agencies: the Orleans Parish District Attorney’s Office, the New Orleans City Attorney’s Office, the U.S. Attorney’s Office, and also the police department’s Compliance Bureau, which is responsible for matters related to the city’s federally-mandated police reforms.
In the days that follow, the deputy chief of the Public Integrity Bureau is supposed to consult with the partner agencies to get their input regarding the possible release of the video. No longer than seven days after the initial incident takes place, the new policy calls for the deputy chief to give a written recommendation to the police superintendent about whether to make the recordings public.
The partner agencies are free to submit written objections to that recommendation. Each of the agencies was involved in developing the policy, according to the police department’s Gamble, as was the U.S. Department of Justice, and U.S. District Court Judge Susie Morgan, who is involved in overseeing New Orleans’ police reform process.
Within nine days of the critical incident, the superintendent, on behalf of the city, is charged with making a final determination about whether or not to release the footage.
‘It’s Going to Be Interesting to See How This Plays Out’
Advocates for greater police department transparency see the new policy as a good step forward, but believe it will take time before its effectiveness is entirely clear.
Created in 2009, the New Orleans Office of the Independent Police Monitor acts as a civilian watchdog agency for the city’s police department. Police Monitor Susan Hutson and Deputy Monitor Ursula Price both spoke with Route Fifty by phone on Wednesday.
Referring to the new video policy, Price noted: “It’s going to be interesting to see how this plays out. Our city has not had a history of transparency when it comes to public records.”
Asked if they had any strong criticisms of the new video disclosure policy, they said that, at this point, they did not. “We’re glad to see this shift in thinking,” Price said. But she added: “It’s a very broad policy, it leaves a lot of discretion to the department.”
“At least while we’re under the consent decree there’s going to be an outside entity agreeing or disagreeing with NOPD’s decision to release,” she added, pointing to the ability the federal judge has to trump decisions made by the superintendent to withhold footage.
Last year, Hutson caught flack from the city’s inspector general, and others, after her office released police video footage to The Times-Picayune in response to a public records request. The footage appears to show a New Orleans police officer striking a 16-year-old girl who is in a holding cell. The officer had been fired for using unauthorized force in the incident by the time Hutson’s office released the video.
“That was upsetting to some people in the city and we were called into a meeting with the city, NOPD, and the federal consent decree judge and we were basically told that they don’t want us releasing those things,” Price said of the incident involving the release of the footage.
“We took the position that, according to the state’s public records laws, it’s our right to do so and we’ll continue to do so,” she added.
Asked if the New Orleans Police Department would release body camera video in response to a records request, Gamble, the department spokesman replied: “Video is not currently being released to the media or general public.”
“Our public records laws do not speak specifically to Body Worn Camera video,” he added by email on Wednesday. Gamble also noted that state lawmakers were “in the process of updating the law and we're participating with them in that process.”
During Louisiana’s 2015 legislative session, state lawmakers created a task force, which was tasked with developing recommendations on the use of body cameras by law enforcement agencies. The group met once last year, and is scheduled to meet again in March, according to one of its members.
At least a dozen states had passed legislation restricting public access to body camera footage as of Jan. 1, according to information compiled by the Urban Institute. In another dozen states, this sort of legislation was either pending, or had been proposed, the information also shows.
Multiple requests for comment from the Louisiana attorney general’s office, about how the state's public records laws apply to body camera video, went unreturned on Wednesday and Thursday.
Marjorie Esman is the director of the American Civil Liberties Union of Louisiana, and a member of Louisiana’s legislative task force on body cameras.
“That’s a question that’s not clear,” she said when asked about whether the video the devices record is available under public records laws. “That’s one of the issues that needs to be addressed, is whether it is or isn’t.”
Esman said a key consideration for her was how to protect the privacy of bystanders who are captured on police body camera videos.
“Beyond that,” she said, "what law enforcement does ought to be part of the public record. And there definitely need to be guidelines on how long this data is kept, and who else is going to get to use it, and for what.”
Gamble said that the department currently has a policy that requires it to keep video recordings for two years. Footage tied to litigation is kept until that legal action comes to an end, he added.
With the caveat that she had not seen an official copy of the department’s new video disclosure policy, Esman said that placing decision-making authority over whether to release footage fully in the hands of the police superintendent was somewhat problematic in her view.
“I don’t think that the police department should be the sole arbiter of, essentially, how to police themselves,” she said. “I’m troubled that the independent police monitor is not part of this.”
‘We Are Really Early On In This Game’
Representatives from the Fraternal Order of Police Crescent City Lodge #2, the labor organization for over 1,000 active city police officers in New Orleans, offered a mostly upbeat take on the new video policy.
“The text is actually kind of excellent . . . It seems to have a lot of checks and balances,” said the lodge’s policy chairman, Jacob Lundy, an eight-year veteran of the city police department. Lundy recently penned an article that discussed some of the implications for officers in New Orleans if more body camera video becomes publicly available.
“I like to see any police department, and especially mine, get ahead of these kinds of things,” he said by phone on Wednesday. Lundy noted that he was speaking in his role as a union representative, as opposed to a member of the police force.
Donovan Livaccari is a former police officer, who is now an attorney, and acts as an employee representative for the FOP lodge. He said he suspected that there would be some concern among officers that video footage might get released to the public prematurely.
“Sometimes the department is motivated by things other than the overall well-being of the officer, or the situation,” he said. “Once the political pressure is brought to bear, there could potentially be rash decisions made with regard to releasing this type of information.”
But he added: “Generally speaking, these body worn camera recordings have served to exonerate more officers from allegations of wrongdoing than anything.”
Livaccari stressed that when video gets released, people should not assume officers saw and heard everything that was recorded, or that the footage reveals the totality of what occurred.
“There’s no over-emphasizing the point that videos cannot be used as the sole determining factor in what may or may not have happened,” he said. “Videos only record one perspective.”
In Lundy’s view, there will eventually need to be a system put in place to deal with whether and how body camera footage of non-critical incidents is released.
He does not support a blanket exemption for that footage from public records laws. But he does think there need to be safeguards in place to protect privacy—perhaps something akin to the process the department announced this week for critical incident recordings.
Livaccari predicted that it would be a while before body camera policies are entirely nailed down.
“We are really early on in this game,” he said. “There are certainly an untold number of circumstances that just haven’t happened yet, that people haven’t considered. There are bound to be privacy issues that no one has even thought of that come up.”