Here's Lookin' at You! The police body cam debate

February 16, 2016

Aprill Emig
Zenith News

It was one of those ideal autumn days—clear-blue sky, the fair 60-degree weather a welcome change after days of fog and rain. It was against this backdrop that the man decided to end his life. He sat on top of a six-level parking garage, a faint breeze rustling his shirt.

He tucked one leg under him on the ledge, the other dangling on the side of the parking ramp—a hopeful sign that, consciously or not, maybe he wanted to live.

That’s when Duluth Police Officer Joe DeJesus enters the video frame and leans against the ledge that separates the man from this world and the next. “I don’t want to jam ya up,” DeJesus tells the man, whose face has been digitally obscured. “I’m here to help ya.”

DeJesus offers the man a cigarette, which requires walking about 20 feet back to his patrol car. As he hands off the cigarette—a tool of the trade, as it turns out; DeJesus doesn’t smoke—he grabs the man’s arm and pulls him down from the ledge. It’s commendable work.

The entire two minutes and 51 seconds were captured on an Axon body camera, one of 120 owned by the Duluth Police Department. The footage was posted to Facebook on September 30, 2015, by former Chief Gordon Ramsay, with the caption, “This is an example of the life-saving work our officers do every day.”

Meanwhile, Duluth Police have led the charge to make sure the public does not see body cam footage unless the police department chooses to release it.

When a member of the public requests body cam footage, “I just make sure the video doesn’t contain things that we wouldn’t want released to the vast worldwide public,” says Duluth Police Lieutenant Laura Marquardt, who handles data practices requests for the department.

Marquardt says she would consider withholding “sensitive images,” like excessive violence, or situations that might embarrass the subject, like nudity, but the “vast majority” of body cam footage is released upon request.

However, none of Marquardt’s reasons are recognized by Minnesota’s Data Practices Act, which declares all government data public unless it is specifically made not-public by another law. It covers any data collected, created, received, maintained, or disseminated by government, including that collected on recording tape.

In December 2014, the City of Duluth applied to the Minnesota Department of Administration, seeking temporary classification of body cam footage as not-public, largely because the department did not want to release footage of the August 11, 2014, shooting of Joe Zontelli by Duluth police. The Department of Administration denied the City’s classification request.

According to police, Zontelli was attempting suicide when he was shot. Ironically, one of the reasons cited by law enforcement for keeping body cam footage away from public eyes is to avoid embarrassing those in mental health crisis—a concern that did not seem to trouble Gordon Ramsay when he posted the DeJesus footage. When the state legislature convenes on March 8, they will be considering three bills dealing with how body cam footage is classified.

May 6, 2015, saw the passage of a bill by Senator Ron Latz (DFL-St. Louis Park). The Latz bill makes all officer body cam footage not-public unless it was taken in a public place; there was use of a dangerous weapon resulting in at least “substantial bodily harm;” and/or the subject of the video requests that the footage be made public.

The criteria for “substantial bodily harm” is fairly high, defined in amendment 609.02, subdivision 7a, as “temporary but substantial disfigurement which causes impairment of any bodily member or organ, or causes fracture.”

Latz’s bill also allows police to withhold or redact footage if it is “clearly offensive to common sensibilities.”

Latz found an ally in Representative Tony Cornish (R-Vernon Center), who authored a bill making body cam footage “non-public data at all times.” This version is supported by the Minnesota Chief of Police Association.

A lot of the terms in these bills have yet to be defined, which the government will use to its own favor, according to Mark Anfinson, who represents the Minnesota Newspaper Association, of which the Zenith is a member. “I will guarantee you that whenever a government official is not quite sure something is public or not, they assume it’s private until someone can prove it to the contrary.”

Anfinson was originally a proponent of making body cam data public by default and only private under circumstances already defined in the Data Practices Act. For example, the law includes 14 groups of people who enjoy an automatic right to privacy, including juveniles, undercover officers, even individuals in pawnshops.

But after more research, Anfinson changed his mind, and he now proposes public categories, such as any use-of-force by police, even if the footage is part of an active investigation. “So often we’ll get the footage after an investigation is over, and it’s rarely ever useful then.”

Timing is key to Anfinson’s reasoning. If a government employee has to sort through thousands of videos a day—most of which are non-criminal—it will actually delay access to those videos most in the public interest, such as holding police accountable in use-of-force situations.

Anfinson’s change of heart brought him into conflict with long-time citizen activist for government transparency, Rich Neumeister. Neumeister posted to Twitter on December 1, accusing Anfinson of “throwing in [the] towel” on the body camera issue.

Anfinson fired back in a December 2 memo to the Newspaper Association that Neumeister’s comment was “a laughably inaccurate description of our position.”

“It’s about access,” says Anfinson, “not about the theory of access. The few people who have criticized [my position] are people who I think are too enamored of theory and not sufficiently appreciative of practical reality.”

“My ideas of transparency and accountability are different than his,” says Neumeister, who has joined forces with the Minnesota Coalition on Government Information and the American Civil Liberties Union of Minnesota to support the third bill, proposed in the state House by Representative Peggy Scott (R-Andover).

Scott’s bill would make public any body cam data that involves the “use of bodily harm”—note the broader language. It also introduces a “consent clause” that requires officers to ask permission before taping any non-criminal interaction in a private home. This would allow individuals to opt for privacy, while cutting down on footage.

Duluth was among the first cities in Minnesota to implement police body cameras in 2014 after months of pilot testing. The entire patrol division is now assigned a camera. Any time an officer is in uniform, he or she must be wearing the camera. According to the Duluth Police Policy Manual, virtually any situation an officer encounters requires the camera to be turned on, including vehicle pursuits, arrests, use of force, crimes in progress, taking a statement, or “any situation or incident that the officer, through training and experience, believes should be audibly and/or visually preserved.”

When the officer’s shift is over, the camera is returned to a docking station where all the footage is automatically uploaded to a “cloud,” a network of remote servers hosted on the Internet. The data are accessible to the department via Cloud storage has not yet raised concerns about data security, but it certainly could. Most digital security experts don’t consider cloud hacking to be particularly difficult.

When the legislature convenes, Scott’s bill will be up for approval in the House. If that happens, the House will have approved a different body camera bill than the Senate, so both houses would have to decide together which version of the law to adopt, with or without additional changes, before presenting it to the governor.

If Scott’s bill doesn’t pass, or if we get a law that is more restricted in its “use of force” and “bodily harm” language, we may only ever see body cam footage that the police department wants us to see, or which, like the DeJesus video, has public relations value.


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