As the city of Lawrence prepares to spend more than $500,000 for body cameras this year, some residents may feel that a camera clipped to every Lawrence police officer's uniform ensures accountability. But that outcome is not guaranteed.
Who body cameras serve to benefit has been clouded when officers fail to record shootings and when the release of footage to victims’ family members and the public is denied or seriously delayed. As it prepares to equip officers with body cameras, the Lawrence police department is drafting policies that will determine when cameras are turned on and what becomes of the footage they capture — and exactly how much discretion police have in those decisions.
City Commissioner Jennifer Ananda, a social worker and attorney, said policies for body cameras must be balanced with the right of privacy for all involved, but that the bottom line is public safety.
“The flip side of that is ensuring equity, transparency and justice for individuals who are involved in a police-involved shooting or other incidents in which maybe an officer isn’t acting appropriately,” Ananda said. “And so I think there is a balance there.”
Because not all cameras automatically record, what type of camera the city decides to purchase has a heavy bearing on when footage is captured. In the event of a police shooting, it is not currently clear whether the body camera policy will deviate from current dashboard camera policies and set firm requirements for the public release of footage. It is also unclear how much say elected leaders will have. Though the body camera purchase decision must go before the City Commission for review and approval, the policy for their use does not require a public approval process.
The release of footage
Kansas law leaves ample room for discretion when it comes to the release of body camera footage, with varying results across the state.
An update made in 2016 to the Kansas open records law classifies body camera footage as criminal investigation records, which are exempt from mandatory public disclosure. Footage can therefore be withheld under several scenarios, including if its release would interfere with any criminal investigation or prosecution, as well as any “prospective law enforcement action.”
The law leaves open the possibility that footage of some fatal police shootings may never be released. The discretionary nature of the law has also led to inconsistencies across the state regarding when footage of police shootings is released.
For instance, it took 11 weeks for body camera footage to be released after a recent fatal police shooting in Topeka, while the Wichita police department released footage of a police shooting that killed a man after a “swatting” prank within hours. Months after police killed people in Olathe and Leavenworth, footage remained under wraps, and the Kansas City Star subsequently sued the City of Olathe for its release, according to reports in the Star.
When the Journal-World asked what the Lawrence police department’s opinion is regarding the release of footage of fatal police shootings to family members and the public, officials said they would take guidance from the state’s open records law.
“In July 2016 a section of the Kansas Open Records Act was updated to provide agencies clarity regarding how these records are legally classified,” Police Captain Trent McKinley said in a written response to questions. “This guidance will be helpful in processing requests for patrol car and body camera footage.”
Vice Mayor Lisa Larsen said she thinks decisions regarding the release of body camera footage should be “policy driven.” She said privacy and criminal proceedings should be protected, but that the process should be clear.
“The policy should outline exactly how that decision process is made, and obviously a city attorney would be involved in that process at some point in time,” Larsen said.
McKinley said the department routinely gets requests for criminal investigation records and makes decisions regarding the release of footage on a case-by-case basis. Specifically, he said the department evaluates each request independently and consults with city legal staff, prosecutors and others to determine whether the release of the requested record is appropriate at that juncture.
“Many times release of details pertaining to criminal investigations ahead of court proceedings can be damaging to the proceedings and objections are raised by prosecutors and/or investigators,” McKinley said.
Regarding how the policy treats the release of footage, Ananda said she thinks discretion for privacy and to protect investigations is important, but that too much discretion can be dangerous. She said the conditions for discretion need to be clear.
“The less discretion there is, the less dangerous the policy can be,” Ananda said. “The clearer we are about when (footage) would be released, to whom, and for what, I think the less likely there are issues of discretionary decisions further down the line.”
Currently, the Lawrence police department, which already uses patrol car cameras and audio recorders, has a broad, approximately 400-word policy regarding recordings, which was previously provided to the Journal-World.
The policy states that officers are to record whenever the vehicle is being operated as an emergency vehicle or during traffic stops, as well as “any other circumstances when the principles of sound police judgment indicate a recording would be helpful.” The policy states that viewing of footage “shall be limited to legitimate investigative or administrative needs.” The policy does not address when a recording can be viewed by others or released to the public.
In contrast, some cities have made comprehensive policies. For instance, Cincinnati, Ohio, and Parker, Colo., have adopted body camera policies that explicitly allow those filing a complaint against police — whether on behalf of themselves or a deceased family member — to view all relevant body camera footage.
Who will have a say in the policy?
In addition to guidelines for recording and releasing footage, body camera policies typically address when consent to record must be sought, how long footage is retained and when officers themselves are allowed to view footage.
But as of now, city commissioners will not have a say in the body camera policy.
Lawrence Police Department policies do not usually go through a public review and approval process, and it is not clear whether the body camera policy will be any different.
Typically, the police department does not request approval from the City Commission for its policies but does review them with the city attorney’s office, according to information from Police Chief Gregory Burns Jr. Burns said the commission has not yet made any request relating to the body camera policy, but that if it were requested, the department would be “more than happy to share the policy when completed.”
McKinley said the police department is also consulting with the Bureau of Justice Assistance, which is required as part of a U.S. Justice Department grant awarded to the police department to help fund the camera purchase. He also said community input will likely inform the policy.
“One important aspect of implementing a body worn camera program involves the receipt of community input, which will likely assist in further build out of the use policy,” McKinley said.
Ananda said that the policy is an important one that affects the public, and that whether the commission should be required to review and vote on it deserves a public conversation.
Larsen said she thinks body cameras are an excellent tool to protect all parties involved in a situation when used properly. She said she would like to see the proposed policy come before the commission for approval "so that everybody can see what we are doing.”
The local police union could propose stipulations, as it did when the city created a new police review board. Drew Fennelly, chairman of the Lawrence Police Officers' Association, said in an email there have been ongoing discussions between the LPOA and the city regarding the implementation of body cameras for about two years. Per the union’s contract, Fennelly said any issues that affect the working conditions of the members can be subject to collective bargaining. However, he said discussions about body cameras have been “very productive” and he sees no reason that will not continue to be the case.
State lawmakers might also have an impact. Some Kansas lawmakers said earlier this month that there should be changes to laws concerning when police departments must release body camera footage, and that they plan to push the issue this legislative session, according to The Associated Press.
The type of camera matters
When cameras record can depend on decisions made before body cameras are even issued to officers.
There are body cameras that officers must manually turn on and generally more expensive cameras that automatically record under certain conditions, such as loud noises, activation of a patrol car’s emergency lights or when officers draw their handgun or Taser, according to information from McKinley.
Last year, how cameras function was brought into question after a Minneapolis police officer did not have his body camera turned on when he shot and killed a woman while responding to a service call.
Once a draft policy is developed, McKinley said officers will field-test several models of camera, including cameras that automatically activate. He said whether automatic or manual cameras are purchased, the department will “likely incorporate language” that directs officers to activate the camera before arriving on a call rather than after arrival or at some other point during the call.
Because of the cost of the cameras, the purchase is required to go through the City Commission for approval. Larsen said she wants to see what the police chief has to say, but that automatic cameras could have benefits.
“It seems to me that it would be beneficial to take a really hard look at the automatic cameras, whatever would provide the most protection for all parties involved,” Larsen said.
The city’s 2018 budget includes about $465,000 to purchase body cameras for all the police department’s officers and $66,000 for a technical support position that would begin midyear. The department was also awarded a $231,000 grant from the U.S. Department of Justice to help fund the cameras.
McKinley said the department will continue to consult with subject-matter experts as they put together a policy. He said the body cameras won’t be tested until the second quarter, and that the target is to have the devices fully implemented by the end of the year.