“I’m deeply disturbed by the injuries and deaths of mostly African-American people in this country sometimes at the hands of police officers in other states,” Democratic state senator James B. Eldridge, the author of the bill, said. “There’s a lot of different ideas out there about how we can change what I think is a national crisis and one of the ideas which has been talked about is to require that all police officers have body cameras.”
Massachusetts has seen its own share of controversial killings by police, but few of them have been caught on camera. Last month, for example, the family of a mentally ill man who was fatally shot after allegedly attacking a state trooper with a pen filed a lawsuit against the Massachusetts State Police. Also last month, a woman filed a lawsuit against the Agawam Police Department over an incident in which, while she was pregnant and holding her young daughter, she was “accidentally” shot in the face by a police officer through the door to her apartment.
While body cameras could bring some much needed transparency to these types of incidents, the bill could also severely limit the public’s access to the videos.
The Massachusetts public records law already includes exemptions for records that could hurt law enforcement investigations if released and records “which may constitute an unwarranted invasion of personal privacy,” but the bill would create a broad, new exemption for all body camera videos. If passed, the bill would mandate that all videos captured by the devices “be kept confidential absent a court order.” Only the subjects of a video and their attorneys would be allowed to obtain copies.
“I think the concern is if this was used in a criminal matter, you’d wanna go through a process to access that information through a court order to protect a defendant’s rights, whether they’re a civilian or a police officer,” Eldridge said.
David Milton, a prominent Boston civil rights attorney, disputes the necessity of a body camera exemption to the public records law.
“I’m not sure that every single minute of footage should be immediately accessible to the public, but I would rather err in that direction than err in the direction of giving pretexts to law enforcement to keep things hidden from the public which is clearly against the whole purpose of having body cameras,” Milton said.
While the bill would still allow subjects of body camera videos to obtain copies, it could create incentives for victims of police misconduct to keep the videos private. Many municipalities in the state insist on including non-disclosure agreements in police misconduct settlements, preventing victims from publicly speaking out. The body camera bill could similarly allow videos of police misconduct to become bargaining chips in lawsuits.
The bill could also lead to bizarre situations in which a video recorded by, for example, a surveillance camera at a police station would be a public record, but a video of the exact same incident recorded by a body camera would not.
The move to limit the public’s access to body camera videos seems uncharacteristic for Eldridge, who is behind an effort to reform the state’s weak public records law which hasn’t been significantly updated since 1973 and has been heavily criticized by news organizations and open government groups. Eldridge admitted that there could be some conflict between his views on reforming the public records law and his views on body cameras.
If the bill passes in its current form, it would require police officers to use body cameras in a number of situations, including during patrols, contacts with the public, emergency responses, searches, SWAT operations, arrests, and interrogations. The bill would allow individual police officers to have discretion to shut the cameras off if they are witnessing rape, sexual assault, or nudity or if they’re interacting with an undercover police officer or confidential informant.
The bill would also require police officers to inform members of the public that they are being recorded and turn off the cameras if asked to.
“I can see an interaction which really should be recorded somehow not being recorded because of some kind of coerced or subtly coerced consent,” Milton said. He also said that in a situation where police are interacting with multiple members of the public, the bill could unfairly give one person “veto power” over whether it’s recorded.
Matthew R. Segal, the legal director at the American Civil Liberties Union of Massachusetts, said the organization supports body cameras, but has not taken a position on the legislation yet. He said that policies must be put in place to ensure the cameras are used for the right reasons.
“What we have seen in Boston is that when there are protests, including protests about police accountability, that the BPD has people out recording the protesters. So there are cameras in use in Boston, but they’re not used for purposes of accountability, they’re used for purposes that seem designed to discourage First Amendment protected behavior,” Segal said. “What you need is a policy of recording that’s actually designed to improve transparency and accountability, which is the opposite of the recording practices that we see on display in Boston.”
In a policy paper on body cameras, the American Civil Liberties Union recommends that police departments adopt limits on how long videos are stored and do not analyze them with facial recognition software and other analytical tools.
The bill would mandate that videos be deleted within 30 days unless they depict an “enforcement action” or a complaint is filed, however, the bill does not address the issue of videos being subjected to software analysis, which is a valid concern in Massachusetts. As DigBoston exposed, Boston used attendees of two 2013 concerts as unwitting participants in a pilot program of an IBM surveillance system that tracks information like facial patterns, skin color, height, clothing, and more.
In addition to mandating body cameras and creating rules about their use, the bill would establish a Law Enforcement Data Review Committee at the state level to make policy recommendations and prepare regular reports. The committee would also “review the complaints of citizens who have exhausted administrative remedies within a police department regarding the unauthorized release of audio-video recordings, or the failure to release such recordings.”
The committee would largely consist of politicians, law enforcement officials, and other public safety officials. It would also include positions for a member of the state’s public defender agency and “two members of community and/or civil rights advocacy organizations appointed by the Governor.”
“Looking at the composition of this committee in this bill looks to be fairly heavily stacked toward government and law enforcement, so I question whether this committee would be able to strike the right balance between openness and privacy,” Milton said. He added that the committee should include more members of open government and civil rights groups, as well as people “from the populations who are most heavily targeted by police enforcement activities.”
Norwood police chief William G. Brooks III, who is chair of the Massachusetts Chiefs of Police Association’s legislative committee, also raised concerns about the bill. He provided the following statement:
We see the value in officers wearing body worn cameras, and some police departments have already issued them, but we have some concerns about this particular bill. The bill will eventually be heard by a committee and perhaps will be amended, but as it is written now there are a few issues that concern us.
First, it appears to mandate that every officer wear a body worn camera. If that is true, the requirement presents a very expensive unfunded mandate for cities and towns. We also believe that this is a decision that should be made by individual communities.
Second, the bill appears to require an officer to turn off his camera if anyone present tells him to. I’m not sure that’s a good idea.
We would welcome the opportunity to talk with legislators about this complicated issue, but I have concerns about the bill as written.
While the bill doesn’t seem satisfactory in its current form, Eldridge described it as a “work-in-progress.” He emphasized that he is willing to amend it to address many of the issues that have been raised.
“More than anything, I filed the bill to spark a discussion about what policies we need to pass to reduce the incidence of often black and Latino men and women being killed or injured by police,” he said. “I have gotten a lot of feedback and, quite honestly, criticism and that’s why I’m very open to making changes to reflect peoples’ concerns.”
The bill was referred to the Joint Committee on Public Safety and Homeland Security in January, but no hearings have been scheduled for it yet.