Gotcha!  That’s the word that comes to mind when I hear arguments about access to body-cam and dash-cam recordings. Advocates for law enforcement agencies and those who think they’ve been mistreated by police both want to use recordings to justify themselves but the “gotcha” blame game inflames tensions rather than improving public safety.

Controversies surrounding who can see the recordings will make our problems worse.  Imagine the following two scenarios, both of which are likely to occur:

1.  An individual complains publicly about improper treatment by police. Police respond by releasing a recording which demonstrates that their actions were reasonable and appropriate.
2. A similar complaint is made and a recording exists but police refuse to release it.

Neither truth nor justice will matter after those events converge into one story.  Together they will appear to be evidence of self-serving decisions and bias by law enforcement – a no-win situation for police and for the public.

More than a year ago, I identified some of the issues and urged passage of a law to regulate access to the recordings.  North Carolina legislators, including local representative Allen McNeill who has extensive police experience, drafted and passed HB 972 which addressed several important concerns.   It’s a good beginning but it leaves law enforcement agencies vulnerable to charges of conflict of interest.

The law allows record retention and release rules that are customized to the unique issues surrounding law enforcement videos by declaring that the recordings are not “public records” to be made generally available like minutes of meetings and government correspondence.  Nor are they “personnel records”.   This will prevent:

• mass requests for videos by those who want to scan thousands of records for instances of certain kinds of behavior by a particular ethnic minority or police
• “witch hunts” against a particular officer
• social media posts of half-dressed people recorded while police intervene in domestic disputes.

HB 972 creates a presumed right to disclosure (seeing the video) for anyone appearing or heard in the recording and for their designated representatives.  It also provides more restrictive criteria for release (obtaining a copy) of the video and it includes a list of circumstances where disclosure or release could be denied.

Four flaws in this otherwise reasonable law make allegations of conflict of interest by police virtually  inevitable.

1. HB 972 requires the head of the law enforcement agency to decide whether to disclose or release videos.  A citizen who is denied access must hire an attorney and go to court in order to appeal. Public confidence could be improved by reversing the burden of proof – requiring police to go to court to justify denying access to the videos.
2. A provision of the law allowing police to release videos for “any law enforcement purpose” should be tightened to prevent suspicion that police will release videos that make them look good and withhold those that make them look bad.
3. One criterion in the law allows denial of access to protect “the reputation of an individual”.  That protection should be limited to bystanders.  It should not apply to interactions between officers and the public.  It is precisely because of concerns about behavior of officers and the public that the recordings are needed.
4. The law does not allow access to videos by news media, advocacy organizations or the public under any circumstances.  They could only obtain recordings from an involved individual who had met  the police-administered criteria.  The ban on public and news media access to recordings should be reconsidered to see if good criteria can be created.  That will be difficult but probably less harmful than making public release totally subject to police discretion.  The levels of suspicion that already exist between police and some segments of our society mean that police will not be trusted to make unbiased decisions about releasing recordings.

Legislators deserve credit for making this first effort and there is much in the new law that can be helpful.  If they quickly fix its flaws, this otherwise promising law may help build trust between police and citizens.  Without changes it is more likely to generate allegations of bias and conflict of interest by police, no matter how hard they struggle to be fair.

Lives are at stake along with mutual trust between police and the public that they are sworn to protect.  Let’s not play political “gotcha” with these videos.