Video-Recording Police–Citizen Encounters Is Necessary but Not Enough

Posted in: Criminal Law

In the wake of the unrest sparked by the police killing of Michael Brown in Ferguson, Missouri, and other such incidents around the country, some commentators (for example, here and here) have proposed equipping police officers with wearable cameras to record encounters with citizens. A number of important issues would need to be resolved in order to implement this proposal but, on the whole, it makes sense.

Nonetheless, even under the best of circumstances, recording police-citizen encounters is no panacea. These encounters are often inherently dangerous. Any systematic effort to reduce violent conflicts between police and citizens should also aim to reduce the total number of occasions when police confront citizens.

The Benefits and Costs of Cameras on Police

The benefits of wearable cameras by police are clear and straightforward. An audiovisual record of police–citizen confrontations serves the interest of law-abiding citizens and police. A law-abiding citizen who becomes the victim of police misconduct or abuse will have a record of that misconduct or abuse, rather than merely having to hope that he or she can win a swearing contest in court against a police officer. Conversely, a police officer who complies with the law can turn to the recording of the interaction when faced with a bogus complaint of abuse. Accordingly, wearable cameras should also deter both police misconduct and false accusations of misconduct.

And indeed, the limited experience of police departments experimenting with wearable cameras thus far shows that they do have these impacts. Cameras appear to be win-win for good cops and law-abiding citizens.

There are costs, however. In order to ensure that police-citizen encounters are captured in their entirety, cameras must operate constantly. Consequently, they may capture perfectly lawful private conduct or conversations of citizens. In addition, much of the time police are working they are not engaged in confronting citizens. Police unions typically oppose wearable cameras because of the legitimate concern that no one—not even police officers—should be subject to constant monitoring on the job.

Those are real concerns but they can probably be accommodated by the development of strict protocols forbidding the use of stored recordings from police-worn cameras except as evidence regarding police-citizen conflicts. Encryption and automatic deletion of files could be used to ensure compliance with such protocols.

Pictures Don’t Lie, but They Are Open to Interpretation

But even if wearable cameras become routine, they will not obviate police–citizen conflict. They will not even resolve all ambiguity about particular encounters.

The 1991 police beating of Rodney King is instructive. The incident was captured on an amateur video recording, which was viewed around the world. Although most people who saw the video perceived clearly excessive force by the police, the following year a jury failed to convict the officers charged in the incident. Lethal riots in Los Angeles ensued.

The not-guilty verdicts (and a hung jury with respect to one officer) were partly the result of the defense team’s successful argument that King was acting in a threatening manner prior to the scene depicted in the video, but that was hardly the whole explanation of the difference between how the jury viewed the case and how much of the surrounding community viewed it. Race also played a substantial role. King was African American; the officers who beat him were white, as were the jurors who heard the case. Reactions to the case were racially polarized.

Students of psychology should hardly be surprised that people with different experiences and loyalties could view the same video so differently. In a famous 1950s study, two psychologists showed a film of a Dartmouth–Princeton football game to students from the two colleges and then asked them questions about rough play. The Princeton students were more than twice as likely to say that the Dartmouth team committed infractions than were the Dartmouth students.

That result will hardly surprise sports fans, who are familiar with the phenomenon of “selective perception,” even if they do not call it by that name. And if people see video images differently based on what team they are cheering for, then it should be even less surprising that they see things differently based on the racial “team” with which they most closely sympathize. After all, Dartmouth and Princeton students in the 1950s came from very similar socioeconomic backgrounds. By contrast, different racial groups have quite different experiences with the police. These different experiences will tend to exacerbate the natural psychological tendency to view the world through one’s own affiliations.

Reducing Police–Citizen Confrontations

Beyond the “Rodney King effect,” there are reasons to think that the benefits of police wearing video cameras will be limited. The risk of being caught and punished will deter rogue police from using gratuitous force. Yet police–citizen interactions can result in tragedy even when police act in good faith.

A police officer who really sees a suspect make a “furtive movement” for what could be a gun may use lethal force in response, even if he knows he is being recorded. In the split second in which the officer must evaluate the situation, his instinct for self-preservation will likely override a calculation about consequences of what the video will ultimately show. Better training of police is vital to minimize misunderstandings and mistakes, but such misunderstandings and mistakes cannot be eliminated. Thus, any strategy for reducing tragic outcomes from police–citizen confrontations must aim to reduce the number of such confrontations.

Here Ferguson is instructive. As discussed in a recent report, Ferguson is part of an alarming national trend in which local government is funded through escalating fines and arrests for minor offenses. The de facto return of debtor’s prison is harmful to individuals and poor communities in many respects, including the fact that it leads to unnecessary police–citizen confrontations. A young man who finds himself unable to afford to pay the fine for his traffic ticket may eventually find himself subject to an arrest warrant. If it is executed peacefully, he may go to prison. The very existence of the warrant creates an opportunity for a police–citizen confrontation.

More broadly, courts, legislatures, and police forces should seriously consider reducing the number of traffic stops and other stops. An apparently drunk driver who poses an imminent threat to others on the road should be stopped by the police. But given the risks inherent in every police–citizen interaction, a driver who commits a minor traffic violation could be issued a ticket remotely. Technology for implementing this sort of system has been in use in various places for some time, and will only improve in the future. As my colleague and fellow Verdict columnist Sherry Colb argued in a 2001 law review article, where the law can be enforced without creating the risk of tragic police–citizen confrontations, it should be.

Given the role of police in maintaining public order, it may never be possible to eliminate tragedies resulting from police–citizen confrontations. Outfitting police with wearable cameras would be a very useful first step in reducing the likelihood of such tragedies. It should not, however, be the only step.