By Amanda Palmeira
Following recent excessive force cases across the country, many states are quickly legislating the use of body-worn cameras for police officers.
The National Conference of State Legislatures reported that 34 states, as of May 18, 2015, were considering legislation to address this law enforcement issue. Within New England, states have responded to the technology to different degrees, and in some cases, not at all.
While the motivation for requiring body cameras has largely been to improve transparency and discourage police brutality, there are other important considerations, including the conflicting interests of individual privacy and access to public records.
The American Civil Liberties Union, for example, recently acknowledged this conflict in a white paper outlining its position on body cameras. While the ACLU is generally skeptical of surveillance, body cameras can serve as a check against the abuse of power by police officers, according to the report. Still, the ACLU warns, “body cameras have more of a potential to invade privacy . . . Police officers enter people’s homes and encounter bystanders, suspects, and victims in a wide variety of sometimes stressful and extreme situations.”
In the pursuit of a balance between these interests, state legislators are asking difficult questions: Should all or only some of the captured footage be made publicly available? Should a custodian be forced to sort all the captured footage into public and private? How should public and private be defined? Should officers record only at certain times? Would recording at specific, limited times at the officer’s discretion defeat the goal of the oversight?
Connecticut passed legislation in June that may provide a model to other New England states. The bill, which requires police departments to equip their officers with body cameras, includes restrictions on when officers can record footage rather than limiting when that footage can be released.
H.B. 7103 prohibits recording during communication between officers outside the performance of their duties, as well as conversations with undercover officers. There are also considerations for interactions with people undergoing physical or mental evaluations or treatment or in medical facilities — with exceptions only made for when such an interaction involves a suspect.
By outlining what footage will be captured up front, the Connecticut legislature has prevented the mixing of exempt footage with non-exempt footage. It also removed the possibility that the surveillance’s integrity would be compromised by allowing individual officers the discretion on when and when not to record. The procedure seems to be one of the most promising responses by state legislators regarding body-camera legislation.
Unfortunately, not all states are approaching the concept so innovatively.
In Massachusetts, for example, home to one of the weakest public records laws in the country, recently proposed body-camera legislation would prevent all footage from being publicly accessible. Under H.B. 2170, footage captured by police body cameras would only be available to the parties in the video and their attorneys — otherwise, the footage would be “kept confidential absent a court order.” New Hampshire H.B. 617, which was introduced in January and is currently in committee, also expressly exempts body-camera footage from its public records law.
As for the other New England states: Vermont has not passed any body-camera legislation yet, but footage captured by police during an investigation is subject to the balancing test in 1 V.S.A. § 317 (c)(5) which examines factors including the personal right to privacy and law enforcement. Maine has no legislation on the issue thus far. And, in Rhode Island, Sen. Joseph Almeida announced in January that he plans to introduce a bill mandating police body cameras.
As they develop laws, or before legislation is even proposed, the New England states should look to the goals Connecticut legislators seem to have in mind: broad public access to footage with practical and predetermined limitations on what is to be recorded.
The general goal of complete public oversight sounds good in theory, especially to those who have been most deeply harmed by or are most concerned about police brutality. But jumping from no oversight to complete oversight through the new technology is not a practical, steady implementation that legislators can or should readily adopt.
Amanda is a rising second-year law student at New England Law | Boston and a summer intern for NEFAC. She can be emailed at amanda.palmeira@nesl.edu.
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