Data collection allows communities and departments to analyze the effects of policies and practices, and to change them if they are ineffective or disproportionately affect particular communities.
IntroductionPart 1Part 2Recommended Best Practices
Introduction
Transparency — like procedural justice and collaborative change — is a value that departments should accept and embrace. This chapter focuses on two primary topics related to transparency: data collection and body-worn cameras (BWCs). Both allow people in and outside of police departments to evaluate police activity and hold officers and departments accountable for their actions. Data collection allows communities and departments to analyze the effects of policies and practices, and to change them if they are ineffective or disproportionately affect particular communities. Video footage can increase transparency by providing first-hand evidence of interactions with members of the public.[i]
Indeed, without video footage, communities would never have known that, contrary to police reports, Laquan McDonald was walking awayfrom officers when he was shot 16 times.[ii]But accountability is not automatic without policies to ensure officers follow the proper protocols for data collection and BWC use; without safeguards in place, BWCs threaten constitutional rights and could intensify surveillance of communities of color, certain religious communities, or immigrants groups. (Please note: While this chapter refers mostly to BWCs, the recommendations below also apply to “dashcams” and other recording devices.)
Robust data collection and reporting allow communities and department leaders to evaluate policies and practices and to modify or eliminate those that are ineffective or have unintended negative consequences.[iii]Departments should notshare sensitive information, such as plans to respond to an active shooter. But sharing nonsensitive information, such as policies, procedures, and statistics about police activity, enables community members to examine police operations and evaluate departmental practices and policies,[iv]which increases accountability, legitimacy, and trust.
Video footage, whether from BWCs or dashcams, can potentially play a valuable role in policing by providing direct evidence of police-community interactions, but departments should implement fair and transparent standards for its use.[v]BWC policies, in particular, should be written with input from the community to ensure they are carefully regulated to minimize their potential use as tools to surveil communities of color.[vi]
[i]Leadership Conf. on Civil and Human Rights, Civil Rights Principles on Body Worn Cameras (May 2015), https://civilrights.org/civil-rights-privacy-and-media-rights-groups-release-principles-for-law-enforcement-body-worn-cameras/[hereinafter Leadership Conf. Principles].
[ii]Neill Franklin, The Marshall Project, The Video Doesn’t Lie – Even if the Officer Did (Oct. 16, 2018),https://www.themarshallproject.org/2018/10/16/the-video-doesn-t-lie-even-if-the-officer-did.
[iii]President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 19–20 (2015), [hereinafter the President’s Task Force Report] https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
[iv]U.N. Office on Drugs and Crime, Handbook on Police Accountability, Oversight and Integrity 9 (2011),https://www.unodc.org/pdf/criminal_justice/Handbook_on_police_Accountability_Oversight_and_Integrity.pdf (noting that “transparency, openness to scrutiny, integrity and legitimacy are also mutually reinforcing,” and “enhancing accountability can improve police legitimacy and increase public confidence”).
[v]Leadership Conf. on Civil and Human Rights, Civil Rights Principles on Body Worn Cameras (May 2015), https://civilrights.org/civil-rights-privacy-and-media-rights-groups-release-principles-for-law-enforcement-body-worn-cameras/.
[vi]Leadership Conf. on Civil and Human Rights, Civil Rights Principles on Body Worn Cameras (May 2015), https://civilrights.org/civil-rights-privacy-and-media-rights-groups-release-principles-for-law-enforcement-body-worn-cameras/.
Collecting and Sharing Data and Information
New technology allows police departments to easily retrieve, analyze, report, share, and store data and information about enforcement activity, such as stops, searches, citations (i.e., tickets), and arrests. Yet many police departments still rely on paper-driven methods to document and store data and information. This leaves departments (and the communities they serve) in the dark about operations and needs. For example, if leaders of a paper-driven department need to know how often officers used pepper spray against juvenile suspects, they have to search for this information manually — a task so burdensome they may not attempt it.
Electronic methods vastly simplify these tasks — but can nonetheless be improved. Some departments use separate database programs that don’t capture information consistently or integrate it with other data. They may, for example, use one database to record arrests and searches and another to record uses of force or misconduct complaints. Separate databases can make it difficult for officers to gather information, such as how often arrests or stops involve the use of force. If database systems aren’t or can’t be integrated, officers may have to collect this type of basic — and often essential — information by hand.
Several states mandate the release of data and information upon request.[i]Public disclosure laws are evolving to require police to release increasing amounts of information to the public (but usually only upon request). To obtain information, members of the public and news media must often go through a cumbersome and time-consuming process that can also be cost prohibitive (if departments charge for staff time to search for, review, and redact information).
Inefficient and burdensome processes can breed distrust among those who question police activity and have difficulty accessing information. New and emerging technologies allow for the collection and storage of vast amounts of information. Police should notuse these technologies to collect and store large amounts of data about members of the public. Gathering “big data” about “criminal” intelligence raises questions about lawful police and government surveillance, especially of communities of color and religious communities. Gang databases are especially concerning because police officers can enter people’s names into them (without notification) based on “gang identifiers” such as wearing a particular baseball hat, having a certain tattoo, or being seen with a known gang member.[ii]
In essence, there is a significant risk that people will wrongly end up in these databases, based on innocuous signifiers or conduct, and face negative consequences (e.g., wrongful arrest or deportation). Indeed, a 2016 audit of California’s gang database found the names of more than 40 infants who had been designated as gang members.[iii]Communities should advocate for legislation that mandates notification when people are included in a gang database so they can challenge it. California has such a law, and it provides processes for challenging inclusion.[iv]
Predictive policing technologies purport to allow departments to “forecast crime” before it occurs and identify “future criminals”[v]via algorithms that analyze data. However, the very data used to “predict crime” is often biased because officers themselves may have biases that manifest in the data they collect.[vi](For more detail, see Chapter 2.) What’s more, departments sometimes obtain these technologies without notifying the public or developing policies to regulate their use, which is in contravention with the best practice of seeking community input before adopting new technologies.[vii]
Police departments can strengthen relationships with communities and with the broader public by making information about police activity easily accessible.[viii]Data paint a full picture of department practices and challenges, which enables officers and community members to better understand police activity and to have collaborative, informed conversations about it.
[i]See, e.g., Cal. Gov’t Code § 6250 et. seq.; Wash. Rev. Code § 42.56 et. seq.; see alsoDan Freedman, Connecticut to Share Police Profiling Data, Conn. Post, May 2, 2018, https://www.ctpost.com/news/article/Connecticut-to-share-police-profiling-data-12882727.php(discussing the Connecticut Governor, Dannel Malloy’s announcement that the state intends to “enlist in a nationwide bid to share law enforcement racial profiling data it collects from individual police departments and state police”); see generallyBryan Arnold, A Survey of Public Records Laws—Issues Affecting State and Local Contractors, Bidders, and Contractors, http://apps.americanbar.org/dch/thedl.cfm?filename=/PC500000/relatedresources/A_SURVEY_OF_OPEN_GOVERNMENT_LAWS.pdf(including a survey of state public record laws); see also Jessica Barker, Building Trust through Data Transparency, Officer.com, July 31, 2017, https://www.officer.com/command-hq/technology/computers-software/blog/12355227/building-trust-through-data-transparency.
[ii]Thomas Nolan, The Trouble with So-Called “Gang Databases”: No Refuge in the “Sanctuary”, American Constitutional Society Blog (June 27, 2018), https://www.acslaw.org/acsblog/the-trouble-with-so-called-gang-databases-no-refuge-in-the-sanctuary/;see alsoJoshua D. Wright, The Constitutional Failure of Gang Databases, 2 Stan. J. C.R. & C.L. 115, 142 (2005).
[iii]Bianca Bruno, Challenge to CalGang Database Lands in Court, Courthouse News Service (Mar. 9, 2018), https://www.courthousenews.com/challenge-to-calgang-database-lands-in-court/.
[iv]Fair and Accurate Gang Database Act of 2017, 2017 Cal. Stat. 91, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB90.
[v]Andrew G. Ferguson, Policing Predictive Policing, 94 Wash. U. L. Rev. 1109, 1114 (2017), https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6306&context=law_lawreview.
[vi]Victoria McKenzie, The Dirty Data Feeding Predictive Police Algorithms, The Crime Report (Aug. 18, 2017), https://thecrimereport.org/2017/08/18/does-predictive-policing-mathwash-bias/.
[vii]SeeACLU, Community Control Over Police Surveillance, https://www.aclu.org/issues/privacy-technology/surveillance-technologies/community-control-over-police-surveillance(last visited Feb. 16, 2019).
[viii]Jessica Barker, Building Trust through Data Transparency, Officer.com, July 31, 2017, https://www.officer.com/command-hq/technology/computers-software/blog/12355227/building-trust-through-data-transparency.
Best Practices in Data, Information, and Video Footage
Collecting and sharing data improves transparency by allowing communities to see what officers and departments are doing.
Transparency is a critical component of trust. Collecting and sharing data improves transparency by allowing communities to see what officers and departments are doing, which enables community members to hold them accountable. When collecting and sharing data, departments should not collect private information (such as personal characteristics, associations, or activities)[i]or use technologies that risk infringing on civil and human rights.
To play a valuable role in policing, as dashcams do, BWCs should have strict policies in place regulating their use.[ii]As more departments adopt BWCs to increase accountability and transparency, they should implement policies to ensure they achieve those goals.[iii]Doing so may enable departments to use BWCs in a manner that respects and protects civil and human rights by increasing transparency. Indeed, some departments report that BWCs “have made their operations more transparent to the public and have helped resolve questions following an encounter between officers and members of the public.”[iv]They also have the potential to increase officer professionalism, allow departments to evaluate officer performance, and reduce the number of civilian complaints.[v]
That said, BWCs increase accountability only when properly used. If policies regulating how and when to use them aren’t in place, BWCs can result in disproportionate surveillance and enforcement of heavily policed communities of color, or religious or immigrant groups, raising significant privacy concerns.
Communities and departments should also consider the costs involved in the purchase and maintenance of BWCs. In assessing the overall cost of a BWC program, communities should take into account not only the cost of the hardware but also the cost of maintaining the footage and data, such as by cloud-based storage services. Thus, even if a department receives the hardware by grant or other means (e.g., some equipment manufacturers provide the equipment free if departments “rent” their cloud storage space), additional costs remain.[vi]
[i]See, e.g., Inside Privacy, Covington & Burling LLP, Virginia Supreme Court Holds that Police License Plate Readers Collect Personal Information (May 7, 2018), https://www.insideprivacy.com/united-states/litigation/virginia-supreme-court-holds-that-police-license-plate-readers-collect-personal-information/; Va. Code § 2.2-3801 (2018), https://law.lis.virginia.gov/vacode/title2.2/chapter38/section2.2-3801/(defining personal information to include social security numbers, driver’s license numbers, education, medical history, ancestry, religion, political ideology criminal record, or information from which personal characteristics such as finger and voice prints can be inferred); Neal v. Fairfax Cty. Police Dep’t, 812 S.E.2d 444 (Va. 2018).
[ii]See generallyLeadership Conf. on Civil and Human Rights, Police Body Worn Cameras: A Policy Scorecard (2017), https://www.bwcscorecard.org/static/pdfs/LCCHR%20and%20Upturn%20-%20BWC%20Scorecard%20v.3.04.pdf.[hereinafter Leadership Conf. Scorecard].
[iii]See generallyLeadership Conf. on Civil and Human Rights, Police Body Worn Cameras: A Policy Scorecard (2017), https://www.bwcscorecard.org/static/pdfs/LCCHR%20and%20Upturn%20-%20BWC%20Scorecard%20v.3.04.pdf.
[iv]Linsday Miller & Jessica Tolliver, U.S. Dep’t of Justice, Community Oriented Policing Services & Police Executive Research Forum, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned 5 (rev. 2017), https://ric-zai-inc.com/Publications/cops-p296-pub.pdf.
[v]Linsday Miller & Jessica Tolliver, U.S. Dep’t of Justice, Community Oriented Policing Services & Police Executive Research Forum, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned 5 (rev. 2017), https://ric-zai-inc.com/Publications/cops-p296-pub.pdf.
[vi]Josh Sanburn, The Company that Makes Tasers Is Giving Free Body Cameras to Police, Time, Apr. 5, 2017, http://time.com/4726775/axon-taser-free-body-cameras-police/.
Recommended Best Practices
Recommended
Best Practices
8.1 Collect and publish demographic and enforcement data.
The Final Report of the President’s Task Force on 21stCentury Policing (the President’s Task Force Report) recommends that departments collect demographic and enforcement information about all law enforcement activities.[i]This includes data about stops, searches, summonses, arrests, and uses of force.[ii]Data should include:
- Date, time, and location of the incident.
- Actual or perceived race, ethnicity, age, and gender of people involved.
- Reason for enforcement action.
- Search conducted (if any) and whether it was consensual.
- Evidence located (if any).
- Name of officer(s) involved.
[i]President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 2 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
[ii]President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 24 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
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8.2 Make data and information publicly available in accessible and alternative formats.
Collecting quality data is the first step toward transparency. Making data publicly available in accessible and alternative formats improves transparency. Communities and departments alike benefit from sharing data and information. Communities are able to scrutinize and understand what their local departments are doing and identify potential problems. Departments, meanwhile, foster discussion and community trust by making data public and easily accessible to all. Specifically, departments should:
Publish policies online in alternative and accessible formats. As the President’s Task Force Report notes, making information about how officers do their jobs electronically available improves transparency and demonstrates a commitment to community collaboration.[i]It also allows community members to scrutinize policies and recommend changes, and it enables departments to reach people who otherwise would not know — or have an opportunity to know — how departments operate. All publicinformation should also be available in alternative and accessible formats.
Because policy manuals are sometimes hundreds of pages long, online versions should contain searchable tables of contents. See, for example, the Minneapolis Police Department’s online Policy & Procedure Manual and Police Data Initiative
[i]President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 2-3 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
Read More8.4 Release information about critical events in a timely manner.
In the wake of officer-involved shootings or other critical incidents, a lack of transparency compounds trauma and heightens distrust. Withholding information obscures facts and breeds anger and resentment. As such, department leaders should work with community members, elected officials, local prosecutors, officer organizations, crime victims’ representatives, and others to develop policies around the release of information about critical incidents.
After an officer-involved shooting, the Las Vegas Metropolitan Police Department (LVMPD) worked with community partners, representatives of police unions, and a local prosecutor to establish a protocol for the release of information.[i]Under the arrangement, the LVMPD releases information within 48 hours of an officer-involved shooting. This information includes the involved officer’s name, rank, tenure, and age. Within 72 hours, after department leaders have been briefed, the LVMPD arranges and holds a press conference to release key facts about the incident to the news media and the public.[ii]During the conference, leaders explain what transpired and provide detailed information, such as aerial maps, surveillance video, evidentiary pictures, identification of officers and individuals involved, and information about weapons used.[iii]
[i]Las Vegas Metropolitan Police Dep’t, Use of Force Policy: INVESTIGATIVE RESPONSIBILITIES – Use of Deadly Force or Force Involving Serious Bodily Injury/Death 33 (2017), https://www.lvmpd.com/en-us/InternalOversightConstitutionalPolicing/Documents/Use-of-Force-Policy-2017.pdf;see alsoOffice of the Inspector General, L.A. Police Comm’n, Comparative Review of Selected Agency Policies, Investigations, and Training on the Use of Force 11 (Oct. 6, 2016), http://www.lapdpolicecom.lacity.org/101116/BPC_16-0119A.pdf(“The [Las Vegas Metropolitan Police Department] stands out among the selected agencies because, as soon as it is feasible, this agency posts a video statement about every incident on YouTube. Approximately 48 hours after an OIS incident, the LVMPD releases the name, rank, tenure, and age of the involved officer. Then, following an internal briefing approximately 72 hours later, the Undersheriff conducts a comprehensive media briefing.”).
[ii]Office of the Inspector General, L.A. Police Comm’n, Comparative Review of Selected Agency Policies, Investigations, and Training on the Use of Force 11 (Oct. 6, 2016), http://www.lapdpolicecom.lacity.org/101116/BPC_16-0119A.pdf.
[iii]LVMPD Controls Narrative After Officer Involved Shootings, Law Enforcement Today, Aug, 3, 2017, https://www.lawenforcementtoday.com/lvmpd-controls-narrative-officer-shootings/.
Read More8.5 Develop clear BWC policies with community input.
The Los Angeles Police Department’s Video Release Policy for Critical Incidents
Critical Incidents: This policy applies to video imagery concerning the following types of incidents:
- Officer-involved shootings, regardless of whether a person was hit by gunfire (this does not include unintentional discharges or officer-involved animal shootings);
- A use of force resulting in death or serious bodily injury requiring hospitalization;
- All deaths while an arrestee/detainee is in the custodial care of the Department unless there is no preliminary evidence of any of the following: misconduct, a use of force, or an act committed by an arrestee/ detainee that appears intended to cause injury or death; or,
- Any other police encounter where the Commission or the COP determines release of video is in the public’s interest.
Video Sources: The sources of video that may be released pursuant to this policy include, but are not limited to, body-worn camera video, digital in-car video, police facility surveillance video, captured by the Department’s use of a small Unmanned Aerial System, and video captured by third parties that is the Department’s possession.
Privacy Protections. Video shall not be released where prohibited by law and court order. Further, consistent with the protections afforded juveniles and the victims of certain crimes, video imagery shall be redacted or edited to the extent necessary to ensure that the identity of such individual(s) is protected. Where the video cannot be sufficiently redacted or edited to protect the person’s identity, It shall be withheld. In addition, video may also be redacted or edited to protect the privacy interests of other individuals who appear in the video. In each instance, such redaction may include removing sound or blurring of faces and other images that would specifically identify involved individuals, sensitive locations, or reveal legally protected information. Further, where possible, such redaction or editing shall not compromise the depiction of what occurred during the incident.
Source: Office of the Chief of Police, L.A. Police Dep’t, Administrative Order No. 6: Critical Incident Video Release Policy – Established (Apr. 13, 2018), http://assets.lapdonline.org/assets/pdf/Administrative%20Order%20No.%206.pdf.
BWCs bring about accountability only if departments have policies to ensure officers use the technology when required, as required, and without infringing on privacy interests.Community members should help develop BWC policies and training, and departments that haven’t yet adopted BWCs should engage the public when first considering using them in order to understand and address concerns about their use — and possible misuse. Communities can also urge city officials to pass legislation that requires public notice and gives community members the opportunity to provide input before the adoption of BWCs (or other technologies).[i]
[i]SeeACLU, Community Control Over Police Surveillance (CCOPS) Model Bill (Oct. 2018), https://www.aclu.org/other/community-control-over-police-surveillance-ccops-model-bill.
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