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May 6, 2017 VIA ONLINE PORTAL Re: Request for Input on The

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May 6, 2017 VIA ONLINE PORTAL Re: Request for Input on The May 6, 2017 1156 15th St. NW, Suite 1250 Washington, D.C. 20005 VIA ONLINE PORTAL (202) 795-9300 www.rcfp.org Bruce D. Brown Re: Request for Input on the Development of a Bodyworn Camera Video Executive Director [email protected] Policy for the Los Angeles Police Department (202) 795-9301 STEERING COMMITTEE To the Los Angeles Police Commission: STEPHEN J. ADLER Reuters SCOTT APPLEWHITE The Associated Press The Reporters Committee for Freedom of the Press, American Society WOLF BLITZER of News Editors, Association of Alternative Newsmedia, Californians Aware, CNN DAVID BOARDMAN The E.W. Scripps Company, Gannett Co., Inc., The National Press Club, Temple University National Press Photographers Association, Online News Association, Society CHIP BOK Creators Syndicate of Professional Journalists, and TEGNA Inc. (collectively, the “News Media MICHAEL DUFFY Time Coalition”) appreciate the opportunity to provide input on the development of RICHARD S. DUNHAM Tsinghua University, Beijing a Los Angeles Police Department (“LAPD” or the “Department”) policy for MANNY GARCIA releasing body-worn camera (“bodycam” or “BWC”) videos of “critical USA TODAY NETWORK ALEX GIBNEY incidents.” As members and representatives of the press, the News Media Jigsaw Productions Coalition relies on access to government records, including bodycam videos, SUSAN GOLDBERG National Geographic to gather and report the news, and to keep the public informed about the JAMES GRIMALDI The Wall Street Journal activities of law enforcement agencies. These comments are designed to LAURA HANDMAN Davis Wright Tremaine facilitate the development of a policy that will ensure that the press and the JOHN C. HENRY public have meaningful access to these records. Freelance KAREN KAISER The Associated Press As an initial matter, the News Media Coalition notes that the LAPD DAVID LAUTER Los Angeles Times must have a policy that comports with the requirements of the California DAHLIA LITHWICK 1 Slate Constitution and the California Public Records Act (the “CPRA”). The MARGARET LOW The Atlantic Department’s current practice of releasing videos only in response to a court TONY MAURO order is inconsistent with the LAPD’s duties under California law. Bodycam National Law Journal JANE MAYER videos created and maintained by the LAPD are “public records” under the The New Yorker 2 ANDREA MITCHELL CPRA , and thus must be disclosed in response to a request unless NBC News specifically exempted from disclosure.3 The California Constitution SCOTT MONTGOMERY 4 NPR mandates that any exemption must be narrowly construed, and any non- MAGGIE MULVIHILL 5 Boston University exempt information is required to be segregated and released. Accordingly, JAMES NEFF the LAPD policy should (1) make clear that BWC videos are public records Philadelphia Media Network CAROL ROSENBERG that must be released under the CPRA unless it is determined, in a particular The Miami Herald THOMAS C. RUBIN case, that requested video or portions thereof fall within a specific exemption Quinn Emanuel to disclosure, and (2) ensure that the Department’s application of any CHARLIE SAVAGE The New York Times BEN SMITH BuzzFeed JENNIFER SONDAG 1 Bloomberg News Gov. Code §§ 6250, et seq. 2 PIERRE THOMAS See Gov. Code § 6252 (e) & (g) (defining which materials are subject to the CPRA) ABC News 3 See Gov. Code § 6253. The only legislation concerning bodycam video to pass the SAUNDRA TORRY USA TODAY California Legislature to date confirmed that such videos are public records. See Assembly JUDY WOODRUFF Bill No. 69, 2015 Cal. Stat. 91, available at PBS/The NewsHour https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB69. Senior Advisor: 4 PAUL STEIGER C.A. Const. art. 1, § 3 ProPublica 5 Gov. Code § 6253 Affiliations appear only for purposes of identification. exemption or exemptions to bodycam footage is narrowly circumscribed to promote maximum disclosure. Beyond urging adoption of a policy that makes clear the right of the press and the public to access bodycam videos under the CPRA, the News Media Coalition also encourages the development of a policy that provides for prompt access to bodycam videos related to critical incidents, such as when an individual dies in police custody.6 In particular, the News Media Coalition recommends that the LAPD adopt a policy whereby all such videos are promptly made available to the press and the public. Such a policy will ensure that bodycam technology fulfills the primary purposes for which it is being used: to increase law enforcement transparency and accountability, and to build trust between law enforcement officers and the communities they serve. Over the past few years, videos depicting use of force incidents involving law enforcement have turned the nation’s attention to issues surrounding policing.7 These incidents prompted widespread calls for the implementation of police bodycam programs to ensure the existence of an objective record of interactions between law enforcement officers and members of the community.8 Indeed, in announcing LA’s plan to equip its police officers with bodycams, Mayor Eric Garcetti cited accountability and transparency as the primary goals, noting that “the more facts and evidence we have, the more likely it is that we can get to the truth no matter what happens on the street.”9 As discussed in a recent Yale Law School report, however, reaching the goal of increasing accountability “requires public access to body cam footage. [B]ody cam footage serves no legitimate purpose without public oversight.”10 A consistently applied policy of automatic disclosure of bodycam video involving critical incidents, such as when there has been a death in custody or use of force, will provide numerous benefits to both the public and the Department. 6 See Gov. Code § 6253(e) (a “state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records . .”) 7 See Damien Cave & Rochelle Oliver, The Raw Videos That Have Sparked Outrage Over Police treatment of Blacks, The New York Times (updated Oct. 4, 2016), https://nyti.ms/2kPP6zp (collecting videos of the shootings of, inter alia, Eric Garner, Laquan McDonald, Samuel Dubose, Sandra Bland, Freddie Gray, Philando Castile, Alton Sterling, Walter Scott, Tamir Rice, and Michael Brown) 8 See, e.g., Michael Brown’s family in Atlanta to begin campaign for police body cameras, WSB-TV (Sep. 21, 2014), perma.cc/8Y9D-JDC6; see also Access to Police Body-Worn Camera Video, Reporters Committee for Freedom of the Press, https://www.rcfp.org/bodycams (collecting policies and laws around the nation on disclosure of bodycam videos). 9 Tami Abdollah, Associated Press, LA mayor plans 7,000 police body cameras in 2015, San Diego Union- Tribune (Dec. 16, 014), http://bit.ly/2oJFViO; see also Frank Stolze, LA City Council approves $ 69.6 million body camera program for LAPD, 89.3 KPCC (Jun. 22, 2106), http://bit.ly/28NS1U5 (noting that Mayor Garcetti stated that bodycams would promote “transparency and accountability — values that protect officers and everyday Angelenos”). 10 Police Body Cam Footage: Just Another Public Record, Yale Law School Media Freedom & Information Access Clinic at 7 (Dec. 2015), archived at perma.cc/A6PQ-24FH (Attachment A) (hereinafter the “Yale Bodycam Report”). 2 On the one hand, proactive disclosure of bodycam video can help the public understand the circumstances surrounding an incident where an officer used force against a civilian. Recently in Washington, D.C., for example, reporters were able to walk the public step-by-step through the events leading up to the shooting of Javon Hall by analyzing and annotating a bodycam video released by D.C.’s Metropolitan Police Department.11 The reporters paused on certain frames to show that Mr. Hall was wielding a large knife near an injured woman and failed to comply with numerous commands by officers to drop his weapon.12 The release of the video disproved assertions by some, including members of Mr. Hall’s family, that he was unarmed at the time of the shooting.13 Conversely, when law enforcement officers provide inaccurate accounts of an event, bodycam videos serve as a necessary source of objective information for the public. This was demonstrated in the aftermath of the shooting of Samuel DuBose by a University of Cincinnati police officer in 2015.14 In that case, Officer Ray Tensing reported that after pulling Mr. DuBuose over, he was “dragged by [Mr. Dubose’s] vehicle and had to fire his weapon,” and that he was “almost run over.”15 The disclosure of the officer’s bodycam video, however, disproved those assertions.16 The local prosecutor, relying on the bodycam video, called the officer’s account of the incident “nonsense”,17 adding that Mr. Dubose did “nothing violent” and that the officer wasn’t dragged but simply fell back after shooting Mr. Dubose in the head.18 Mr. Dubose’s mother and other family members emphasized the importance of public access to the BWC videos of the incident, saying “that if it were not for the body camera worn by Officer Tensing, his story would have been accepted and he would have gone unpunished.”19 Without a policy of consistently releasing all BWC videos of critical incidents, the benefits that could flow from the use of this new technology will be undermined, if not eliminated. Indeed, from the public’s perspective, if such videos are not made public there might as well not be any BWC at all.20 And it would not be surprising if the public began to question the wisdom of spending $57.6 million on a program to increase law enforcement transparency and accountability, if the program does not provide for 11 See Garrett Haake, Body camera vide shows D.C. man armed with knife when shot by police, WUSA 9 (Jan. 5, 2017), http://on.wusa9.com/2oYO4SV.
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