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Friday, May 03, 2019

Bodycams and police discretion

Interesting story from a former police officer arguing that bodycams undermine community policing. The obligation to record everything eliminatesofficers' ability to ignore or skirt department regulations when it might be beneficial for relations with the community--for example, by not arresting a mother driving with young child and groceries with an expired license. As she puts it "[s]eemingly overnight, keeping my job meant doing everything by the book," because camera footage is subject to internal review.

Later, Miller argues that "[s]ince the adoption of body cameras, the law is the law." But hasn't the always been the law? Of course not, because police officers wield a tremendous amount of inherent discretion in choosing what laws to enforce, how, when, and why. And many officers, such as herself, wielded that discretion for good, in a way that helps the community and maintains good relations between police and public (or at least certain segments of the public). Bodycams, she argues, make that harder.

But Miller's argument ignores that many officers used that discretion for ill. And no one--including the good officers--did anything to stop the bad actors. The clamor for a technological solution arose because of a felt need for some tool to reign in abuses of that executive discretion--police departments, fellow officers, municipal governments, prosecutors, and courts were not willing or able to do it. By purporting to offer incontrovertible video evidence (even if it is not incontrovertible) of "what happened," bodycams make it more difficult for the relevant actors to ignore misconduct. Miller questions the efficacy of bodycams in providing that check on "bad apples," and she is right that the point that is in empirical dispute. But nothing and no one has emerged as a better check.

Posted by Howard Wasserman on May 3, 2019 at 09:27 AM in Howard Wasserman | Permalink


The missing piece from this debate is that the only reasons laws and rules with such harsh and unyielding consequences can persist is exactly because they aren't applied to the kind of people that have power and influence or who strike those who do as empathetic. Bad laws persist because when they would otherwise apply to the kind of people that mainstream society would see as sympathetic the police exercise discretion (for what would be called 'good reasons'). So the laws continue to ruin lives despite striking people as sufficently unfair when applied to people like them that they give a pas.

The ability of the police to make exceptions amounts to nothing more than sorting society into favored and unfavored groups (I don't mean race here, though it is a factor, more just the kind of people who strike us as sympathetic like parents, church goers, middle aged ppl in work atire.. vs obnoxious young men, people down on their luck or with alcohol problems etc..).

I mean why should the middle class mother who is driving on an expired license to run her kid to soccer practice and get groceries get a pass when surely the satan worshipping guy with tats and piercings off to tend bar not? Even though most of us (perhaps esp police officers) will feel more empathy for the soccer mom but even if she's a single mom struggling to make ends meet she's probably got more community support, psychological resilience and life management skills than the desperately rebellious and unfulfilled satan worshiper. If anything the exception should go towards the guy we feel less empathetic towards because they are almost surely at greater risk to spiral out (be unable to pay insurance the fail to make work etc..) and enter a life of crime. Worse, people quickly learn whether they are the type of person who is given a pass (we all know who tends to be able to avoid the ticket) or not and the sense of being unjustly picked on by police fuels both criminal activity and and unwillingness to help the police.

Posted by: Peter Gerdes | May 4, 2019 7:40:52 PM

"But Miller's argument ignores that many officers used that discretion for ill. And no one--including the good officers--did anything to stop the bad actors."

Yes, this is an important point. Yet there is another point which you don't mention which is the deleterious effect of this statement, "for example, by not arresting a mother driving with young child and groceries with an expired license."

The problem is that the local officer is not a good judge of the impact such decisions have on the community at large. Often, such decisions were based on class or race factors. So it not just a question that the good cops failed to reign in police brutality, it is also the fact that the good cops often displayed large degrees of selection bias in who they helped which increased, rather than decreased, the negative public perception of the police.

Posted by: James | May 4, 2019 2:13:00 PM

Simply put, no one wants to live in a world without bodycam footage of police shootings of unarmed blacks. That would send us back to the days of Rodney King and the LA riots . . . and white flight.

Roe and Lawrence definitively proved that the courts will strike down laws that only serve to oppress.

No police officer has been jailed for refusing to enforce the law, just as no judge has been jailed for refusing to punish a crime.

Posted by: Aurora | May 3, 2019 4:05:38 PM

Without more evidence that departments actually punish officers for declining to arrest in any instance when they have the legal authority to do so, I'll take this piece with a grain of salt. The author mentions working in Washington DC, and the MPDC general orders are online, so I would have loved a link to the department rule that would have required arrest in the circumstances mentioned in the article. Of course written rules never tell the whole story, so evidence of sanctions against officers who fail to arrest would be useful, too. The fact that officers do not, and logistically could not, make an arrest whenever they witness criminal activity or hear a report of it, is widely known and, as far as I can tell, widely accepted among law enforcement professionals. I doubt body cameras are changing that, and it seems a stretch to say that body cameras are thus constraining leniency.

Posted by: Alice Ristroph | May 3, 2019 12:41:49 PM

I was part of a study for NACDL that examined body cameras. The subtext of the report was that they were beneficial, but not a panacea. In my own view, we cannot rely on body cameras or any other technology to police the police. My own view is that there are two things that must be done.

First, double police officers' salaries and require greater meaningful initial education and continuing education (including education on, for example, mental illness, deescalation techniques, etc.). This would weed out the bad apples, instill greater accountability, and make policing substantively better.

Second, eliminate many of the crimes that are on the books, especially many drug crimes. There is a widely accepted reality of overcriminalization in this country. If the things that we deem crimes are limited to those things that truly present public safety threats, police officers will have less need to engage their discretion, less tendency to do so, and the public will be a lot more appreciative of the hard work that officers perform.

Posted by: Steven R. Morrison | May 3, 2019 11:30:15 AM

Very interesting, very important. Some points, have gone missing here, and just some few:

First, the law is the law or enforcement is enhanced as such with such bodycams, due also ( in the eyes of the police officer ) to the very fact, that now, incidents in every shift, can be strictly and rigorously scrutinized by the superiors, here I quote:

My footage was subject to review by my supervisors, who could punish violations of our general orders, no matter how petty.

End of quotation, and examples, here I quote:

If I discovered a homeless person urinating in public, the video forced me to fine him, arrest him, or violate general orders by not recording the interaction.

End of quotation:

But, the police officer, suggests also, that:

So, bodycams may have made it easier to hold bad cops accountable for their actions, but they also have the effect of holding citizens strictly accountable for theirs.

End of quotation:

And indeed, not once, citizens or criminals, may implicate police officers, just for payback or revenge, fabricating false accusations. Now, it is better for them in this regard.

Finally, not to forget, one may set a protocol of confidentiality.As such, part of footage, can be claimed potentially as confidential in the eyes of the police officer, and third party, can review it, and decide that indeed so, and be ignored or redacted and not reviewed by superiors. This may take place, when:

The benefit of such attitude of "Beyond the letter of the law " is greater than the imposition of sanction or action, especially, when dealing with minors or petty offenses.


Posted by: El roam | May 3, 2019 11:11:26 AM

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