Baltimore body camera controversy grows
In the last month, the Baltimore Police Department has been rocked by accusations that officers are staging or “reenacting” the discovery of drugs for the benefit of capturing, after the fact, the seizure of evidence on their body cameras. In response, Baltimore County State’s Attorney Marilyn Mosby has decided to drop the charges in those cases — and possibly hundreds of others linked to the officers involved. Mosby’s decision has prompted a backlash from Police Commissioner Kevin Davis and police union officials, and this controversy is raising substantial issues about the integrity of Baltimore drug enforcement operations and the future of body cameras.
The City of Baltimore has spent millions of dollars in the last two years to outfit officers with body worn cameras. The initiative is part of a program to instill public confidence in law enforcement in the wake of the 2014 death of Freddie Gray. Unlike many cities, Baltimore has a clear set of policies about the use of these cameras: officers are required to turn their cameras on whenever they respond to calls for service or undertake investigatory or enforcement action.
But, as has been clear for some time, this is not happening. In the three cases currently under review, officers failed to have their cameras on as required. This discovery comes on the heels of numerous prior incidents, 62 of which have resulted in low level disciplinary action against officers for failure to follow policy. In the words of Commissioner Davis, “In 2016 we were dealing with some police officers who are [sic] reluctant to use it as our policy required them to use it…some of those arrests from 2016 are now making their way into courtrooms.”
Body camera programs have been adopted by thousands of police departments in the last three years in response to growing concerns about excessive use of force, racial profiling, and other forms of police misconduct, especially in communities of color. The use of cameras raises profound concerns about potential invasions of privacy, but many feel it is worth that invasion if it enhances police performance, reduces frivolous complaints against police, and improves public confidence in the police. Increasingly, however, it appears that the use of these new systems is not furthering these intended objectives.
Time and again, those who appear in body camera videos and feel they have been mistreated by law enforcement are unable to get access to the footage. Video footage has been suppressed by departments in high profile cases, often for years, and criminal defense lawyers often experience long delays in getting access to this crucial evidence — sometimes with the result being that their clients languish in jail for months longer than necessary. I and othershave called for taking control of footage away from police and prosecutors and turning it over to an independent body with clear rules for providing access to those affected by a given incident, without sacrificing anyone’s privacy.
The staging or re-creating of drug seizures by officers in Baltimore for the purposes of recording them on body cameras is a violation of evidentiary rules, body camera regulations, and possibly criminal law. The State’s Attorney was correct in dropping the charges in cases involving these officers. If nothing else, these incidents will make it close to impossible to convince a jury beyond a reasonable doubt of someone’s guilt when the body camera apparently was turned on after the fact — and when, in some instances, the “staging” was not disclosed in the officer’s probable cause statement. These troubling and unprecedented practices simply cannot promote community trust or confidence in the actions of law enforcement. As State’s Attorney Mosby noted in a statement she issued explaining her actions, these revelations “undermine public trust and create indefensible doubts in the minds of the general public, judges and jurors.”
Chief Davis and police union officials have defended their officers, claiming that the officers were only seeking to document the legitimate discovery of drugs, and that they were doing an important service for the people of Baltimore.
To be sure, there is no evidence that the continual arrest of people for low level drug charges is doing anything to make Baltimore safer or reduce the negative impacts of drugs. Former Baltimore police officer Peter Moskos, in his book Cop in the Hood, describes in infuriating detail the utter futility of this approach. No matter how many times he and his colleagues arrest people for drugs, it has had absolutely no impact on the use or availability of drugs. All anyone has to do is just walk over a few blocks or wait a few minutes for someone else to sell them.
Even more concerning, these are the exact kinds of drug cases that have led to substantial erosions of Fourth Amendment standards protecting us from unreasonable searches and seizures. In his book Unwarranted, law professor Barry Friedman describes case after case where the War on Drugs has led to police practices and judicial decisions that allow for ever greater invasions by police. There is a real risk that body cameras will become a part of this dynamic. Officers in Baltimore should not be allowed to misuse this new technology just because they’re “getting drugs off the streets.”
These revelations make clear that body cameras are not going to be a panacea of improving policing or restoring public trust in the police. Worse, when used as part of this post-hoc “reenactment” manner, they run the risk of deepening public distrust and suspicion. Mosby was correct in responding definitively and unambiguously in rejecting these practices. Policy makers and local police need to follow suit.