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October 26, 2018

Five trends in police body camera legislation

October 26, 2018

In late August, a Texas jury convicted former Balch Springs police officer Roy Oliver of the murder of 15-year-old Jordan Edwards. The uncommon verdict largely rested on footage of the incident captured on Oliver’s body camera, technology the city’s police department implemented in 2015.

As more law enforcement agencies nationwide use police body-worn cameras, states are developing and refining policy guidance. Since we last updated our body camera legislation tracker in January 2017, 16 states have passed new laws and 12 states have pending legislation governing key aspects of the technology’s use.

Our new tracker illustrates several shifts in policy and focus and reveals five notable trends.

1. States are developing evidence-based model policies and standards.

In 2016, several states established commissions, study groups, and pilot programs to better understand policy development. The identification of best practices recently led to a shift from exploring to implementing model policies.

In January 2017, the Ohio Collaborative Community-Police Advisory Board released statewide standards that include requiring law enforcement to inform citizens when they are being recorded and restricting citizens from reviewing recordings at the scene of an incident.

That same month, Nebraska passed a statewide policy, developed by the Commission on Law Enforcement and Criminal Justice, governing when and how to use body-worn cameras and prescribing the storage and destruction of footage.

2. There’s no nationwide standard on when footage is considered public record.

Twenty states and the District of Columbia have either passed or proposed legislation related to access of body-worn camera footage. Few states consider all body-worn camera footage exempt from public records requests, but most others have passed various exemptions associated with disclosure or only allow requests on a per-incident basis.

Common exemptions include records related to an ongoing criminal investigation or disciplinary action. Washington recently passed a bill that amends the state Public Records Act by exempting body-worn camera footage that displays information used for disciplinary action against law enforcement officers.

Michigan also recently passed a bill that exempts from disclosure certain footage connected to a criminal or internal investigation.

3. Privacy issues continue to surface.

With the adoption of body-worn camera laws in almost every state, personal privacy concerns are increasingly at odds with law enforcement investigative needs, prompting a nationwide conversation on the trade-offs between transparency and privacy.

Utah recently adopted legislation that prohibits recordings within hospitals, human services programs, or mental care facilities.

Tennessee, Kentucky, and Washington have passed laws that exempt from public records requests depictions of categories of vulnerable individuals, such as sex crime and domestic violence survivors and minors. Laws also exempt communications or interactions when any participant has a reasonable expectation of privacy.

4. State guidelines regarding officer viewings of body camera footage before investigations are rare but needed.

Should officers be allowed to view footage before writing incident reports or making statements following police-involved shootings and other serious incidents?

Generally, police groups are in favor of allowing officers to review footage, believing the approach provides the best evidence available. Civil rights advocacy groups tend to oppose it, citing damages to accountability and accuracy.

Only Arizona, Florida, Texas, and Washington, DC, have passed regulations addressing this issue. All allow law enforcement to access footage before making a statement or writing a report.

5. It’s not just about state legislation.

While statewide body camera bills work their way through the slow machinery of the legislative process, local police departments are developing policies on their own or are being mandated to do so. Michigan, Minnesota, and Oregon require law enforcement agencies using body-worn cameras to develop written policies.

Local departments are wielding considerable discretion, particularly when dealing with requests for access to videos. In Arizona, which hasn’t passed statewide legislation, the Tucson Police Department (PDF) allows anyone to request footage, and the footage will be automatically released as long as it is in accordance with the state’s public records law.

The San Diego Police Department allows citizen access to footage only at the discretion of police supervisors.

Several recent legal cases are also shaping body-worn camera policy. In Meredith Corporation v. City of Mobile, the judge allowed for the release of footage depicting an officer pepper-spraying high school students but emphasized that the order is not intended to set a precedent for public access to all manner of body camera videos.

In another case, a Superior Court judge ordered a New Jersey county to release footage requested by a citizen complainant under the state’s Open Public Records Act, which could have broad implications for future requests.

As body-worn camera use increases, states should enact legislation that is both responsive to the demands of community stakeholders and considers evolving technological advancements.

In many ways, technology is moving faster than the law, requiring local jurisdictions to create guidelines related to body-worn camera advancements, such as the integration of facial recognition.

Striking the right balance between flexibility in local implementation and comprehensive and uniform standards will be critical for ensuring body-worn cameras enhance transparency and accountability moving forward.

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