April 21, 2017
Today, OTI joined a coalition of civil rights and consumer advocacy organizations on an amicus letter urging the Southern District of New York (SDNY) to require the New York City Police Department to improve its body-worn cameras (BWCs) pilot project.
In 2013, the SDNY issued an order in Floyd v. City of New York (summary here), the case about the constitutionality of the NYPD’s stop-and-frisk practice. One of the remedies the court ordered in the case was to require the NYPD to implement a BWC pilot as one way to shed light on, and improve accountability for, the stop-and-frisk practice and to potentially curb the NYPD’s constitutional abuses. In an attempt to respond to the court’s order, the NYPD recently released its proposed BWC policies in a draft “Operations Order” (p. 44 of PDF).
The policies do not go far enough to protect the public’s civil rights, especially in heavily policed communities of color, and thus the policies will not act as an effective remedy for or deterrent to unconstitutional stop-and-frisk practices.
To be an effective remedy to the NYPD’s constitutional abuses, the policies must be changed in at least four key ways:
The policies currently require officers to turn their BWCs on only after an interaction becomes adversarial. But this gives too much leeway to officers and will often leave out key interactions that lead to the adversarial encounter. The policy should require officers to turn their BWCs on when responding to all calls and public encounters. There can be some limited exceptions, such as when attending to victims of sexual assault.
The policies currently allow officers to view BWC footage before writing their report of the incident. This policy creates bias issues where officers could alter their reports based on what the camera saw or did not see. A two-step viewing process, where an officer must first write a report and only then can view the footage, is a fairer system. Once seen, the officer can add supplemental information to their preliminary statement.
The policies currently contemplate providing public access to BWC footage through state freedom of information laws (FOIL). For a variety of reasons, including that NYPD has been known to obstruct FOIL requests for BWC camera footage, the court should require NYPD to adopt a streamlined, simple process to gain access.
The policies currently do not place any restrictions on the use of BWCs and facial recognition. But combining the power of BWCs and facial recognition can create serious constitutional issues because BWCs would become invasive tools for mass surveillance that scan the faces of every (innocent) person officers encounter. Police departments could then look up those faces in police or other intelligence databases for potentially nefarious purposes. The court should require the NYPD to adopt limits to the use of facial recognition.
Importantly, all of these suggestions have been implemented in multiple other BWC policies in cities across the country.
For further information, see the filing here.