Mimesis Law
6 March 2021

ACLU To Cops: Turn Off The Body Cams (Update)

January 23, 2017 (Fault Lines) — Donald Trump was inaugurated on Friday. He and his supporters claim the crowds were yuge, the biggest in American history. Neutral observers disagree, as does the press.

But there were definitely protests in DC, and at least everyone agrees they were yuge. There were burning limousines. Smashed storefronts. Journalists fascinated by smoldering trash cans, taking photo after photo in an unwitting indictment of their own standards. There were also 230 arrests. Various newspapers report the protesters face felony rioting charges.

The media painted a grim picture of crowbar-swinging hooligans assaulting Trump supporters and cops. And maybe the 230 arrestees were among them, throwing bricks and bottles at police officers. Or maybe not. Similarly, it’s possible that some of the people who turned out to protest the 45th president were mistreated by the hundreds of cops in the streets. Pepper-sprayed or “sting-balled” when they didn’t have to be. Arrested without cause. Given a tune-up once they were on the ground.

Normally, it’d be easy to find out. After all, Metropolitan PD officers are equipped with body cams that nearly always have to be turned on, including at protests. But according to an NBC Washington report, not this time.

Every DC patrol officer is armed with a body-worn camera. But those cameras won’t be turned on during the inauguration unless the officer is required to take action. If they are simply monitoring the crowd, those cameras will remain off.

Wouldn’t it be nice if defense attorneys could review body-cam footage of the protests to better represent their 230 clients? If prosecutors could make informed decisions on whether to spend taxpayer money to pursue these cases? If protesters who believe they were wronged by the cops had proof to point to? If cops accused of wrongdoing had evidence of their innocence?

That’s what you think, peasant. But the ACLU knows better. Quoth ACLU DC Executive Director Monica Hopkins-Maxwell:

Those cameras shouldn’t be on. The police shouldn’t be allowed to surveil First Amendment activity, and our concern around the availability of body cameras, what is done with that data, who looks at that data, what that data’s used for. [sic]

Before we dive too deep into this rabbit hole, it’s important to note that fake news has been a bit of a problem lately and NBC’s report may be no exception. The problem is that if the story were true, it’d mean the ACLU somehow got DC police to violate their own body-cam policy. According to the latest (March 2016) version of the MPD General Order on body-cam use, the devices have to be turned on during “First Amendment assemblies.”

It’s true that under DC Code § 5-333.09(b) and the pithily-named Body-Worn Camera Program Regulations Amendment Act of 2015, body cams may not be on “for the purpose of identifying and recording the presence of individual participants who are not engaged in unlawful conduct.” But the law does allow it so police can record criminal activity, document what they themselves do and obtain material for training or organizational purposes.

Unfortunately, it seems the NBC Washington reporter made no effort to verify what he read or heard about body-cam use, as he mistakenly claims that “it’s against the law for police to turn them on when they’re simply monitoring protesters.” It’s possible that he misunderstood the provision in the BWCPRAA, or mistook Hopkins-Maxwell’s thoughts on what the law should be for what it is today. I’ve reached out to DC police in an attempt to clarify whether body cams actually were turned off for the inauguration but received no reply.

Whether or not the cams were off on Friday, the ACLU’s position is that they should’ve been. It promotes a model set of body-cam regulations that jibe with what Hopkins-Maxwell said, and the ACLU attempts to justify its stance in a related white paper.

Although we at the ACLU generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers.

Right on both counts. They do deter cops from abusing their power (and non-cops from lying about it,) and the ACLU’s view is dim.

At the same time, body cameras have more of a potential to invade privacy than those deployments. […] For the ACLU, the challenge of on-officer cameras is the tension between their potential to invade privacy and their strong benefit in promoting police accountability.

Uh-oh. Are they going to say what I think they will?

The great promise of police body cameras is their oversight potential. But equally important are the privacy interests and fair trial rights of individuals who are recorded. […] Therefore it is vital that any deployment of these cameras be accompanied by good privacy policies so that the benefits of the technology are not outweighed by invasions of privacy.

That’s right: it’s the return of the dreaded balancing test, last seen as a constitutionally clueless justification for censoring speech. What the ACLU neglects to mention is that while you do have a right not to get hit on the head by a cop with a truncheon because you disrespected his authoritah, you don’t have a right to privacy. Like the proposed right to dignity, it’s nowhere to be found in the Constitution.

So when the ACLU invokes a nonexistent right to justify restricting a measure that keeps cops from lawlessly applying their truncheons to your head (and provides redress if they do,) it must be because there’s something outside the Constitution’s ambit that they care about. Very deeply. Enough to give away your actual rights. What could it be?

[C]rime victims (especially victims of rape, abuse, and other sensitive crimes), as well as witnesses who are concerned about retaliation if seen cooperating with police, may have very good reasons for not wanting police to record their interactions.

Recently, the ACLU has shown itself more than willing to put its sympathy for certain groups ahead of people’s civil liberties. This is one such case. Ironically, as police detective and Fault Lines Cross victim Nick Selby points out, the ACLU’s concern for the emotional well-being of rape and sexual abuse victims may actually hurt them in a concrete sense, as it’s led the ACLU to recommend that police departments delete video well before the statutes of limitations on various sex crimes have run. And then there’s this:

[W]e have also seen video of particular incidents released for no important public reason, and instead serving only to embarrass individuals. Examples have included DUI stops of celebrities and ordinary individuals whose troubled and/or intoxicated behavior has been widely circulated and now immortalized online. The potential for such merely embarrassing and titillating releases of video is significantly increased by body cams.

In other words, the ACLU’s proclaimed itself the arbiter of what is and isn’t in the public interest. Again, this involves putting its feelz before the real rights of others not to get abused by the police.

The ACLU’s positions are certainly empathetic. They’re probably well-intended. But what they aren’t, not by a long shot, is grounded in the Constitution and worthy of a principled civil-liberties group. And when Friday’s 230 anti-Trump demonstrators look to their attorneys to get them out of their bind, it’ll be small comfort to them to know it’s not their lawyers’ fault if they can’t get their hands on something that could be instrumental to their freedom. After all, the ACLU decided its progressive sympathies were more important than the protection afforded by body cams. Even if no one asked it to make that call.

UPDATE: MPD’s press office got back to me and confirmed that body cams at the inauguration were turned on. That makes NBC’s report fake news. Everyone who paid attention as the network regurgitated the ACLU’s fantasy version of law was made dumber by these journalists’ carelessness.

4 Comments on this post.

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  • maz
    23 January 2017 at 9:25 am - Reply

    OK, I can see some legitimate concerns regarding “witnesses who are concerned about retaliation if seen cooperating with police,” and it probably would be a good idea for municipalities to hash out some sort of exception/redaction policy before the first time some sort of local freedom-of-information request is used to id potential witnesses for a preemptive strike, but that’s an awfully little bathwater compared with a lot of baby. The rest of the arguments range from well-intentioned but misguided to just misguided….

    • David Meyer Lindenberg
      23 January 2017 at 9:31 am - Reply

      And this is just the tip of the iceberg. If I’d included all the problems with the ACLU’s model rules, my post would be a law review article.

      Since I mentioned the ACLU’s concern for rape and sexual assault victims, another problem with restricting body-cam use is that officer video can be used to spare victims a lot of pain in court. But the ACLU, as always, can’t see past the end of its nose.

  • Scott Jacobs
    24 January 2017 at 6:28 pm - Reply

    Considering the protesters were, I assume, the sort of folks who scream as though they were gutted when their balloon gets popped (we’ve all seen that video), you couldn’t pay me enough to police that event without a camera recording.

    Glad to see the Metro cops weren’t required to do just that.

    • David Meyer-Lindenberg
      27 January 2017 at 10:15 am - Reply

      Those six journalists got lucky, too. I wonder what they’d say if they knew the ACLU was down to make their livese a lot harder.