Guest Opinion | The Chief’s Curse: Discretion on Releasing Bodycam Videos

The happenstance that cell phone cameras, security cameras, and police dashboard cameras record police shootings and other critical incidents of police-community interactions has been revolutionizing how shootings and other major incidents are perceived. Body-worn cameras are increasingly being deployed; they will more systematically record such incidents. Pasadena plans to begin deploying them at the end of this year.

As Pasadena thinks through what its policies will be on body-worn cameras, one of the issues to be decided is public access to bodycam videos of police shootings and other critical incidents. Some say that release of such bodycam videos should be at the discretion of the Chief of Police. Although it may seem counter-intuitive that putting power to decide in the hands of the Chief is bad for him, doing so is probably a curse for the Chief. Giving the Police Chief discretion to decide whether or not to release video of police shootings would invite recurring public battles between the police union and its supporters who favor never releasing anything that might question police versions versus the public who seek transparency. Is it good public policy to put the Chief in the middle of repeated wrangling where he inevitably makes enemies of one side or the other depending on whichever way he rules? Is there a better way?

The reason video should not be released immediately: insuring investigation integrity

Strong policy reasons support delaying release of bodycam video to anyone other than investigators until the post-shooting investigations are completed. The California Supreme Court rejected the Pasadena Police Officers Association contention that officers should be able to see other witness statements before giving their own statements to investigators. In 1990, the PPOA took the issue all the way to the Supreme Court when the Pasadena PD refused to give them that right. In ruling against the PPOA, the Supreme Court stated: “Disclosure before interrogation might color the recollection of the person to be questioned or lead that person to conform his or her version of an event to that given by witnesses already questioned.”

The same issues – (1) coloring witness recollection and (2) allowing witnesses to conform their version of events to other evidence – that the Supreme Court noted as applying to witness statements apply with even greater force to video of police shootings and other critical events. Behavioral studies consistently show that exposure to visual evidence is much more powerful in altering witness recollection than mere words; exposure to video thus is more likely to alter pure recollection of witnesses even more significantly than witness statements. For a witness whose self-interest or bias might lead him to fabricate a false version of events, allowing him to view the video before he gives his statement tends to aid him in fabricating a version of events that cannot be impeached by the visual evidence.

Thus, public release of bodycam video prior to the completion of both the criminal investigation and the follow-up administrative investigation would be bad policy. In order to insure the integrity of investigations, public release of bodycam video should not occur until the completion of the criminal and administrative investigations.

Avoiding the Chief’s curse of discretion: release after a specific number of days

Pasadena’s experience for nearly 4 years with the OIR Group Report on the Pasadena PD’s shooting of Kendrec McDade should be an object lesson in why giving the Police Chief discretion on release of body cameras is bad policy. Release of the OIR Group Report was a discretionary decision; the City was not required to release the Report but the public pressure to do so was ultimately overwhelming. Mayor Bogaard, then-Councilmember Chris Holden, the City Manager, and the Police Chief collectively sought to defuse widespread concern about the PD shooting the unarmed African-American youth by their publicly promising transparency on the OIR Group Report at the time the OIR Group was hired in 2012. The City Manager then got a black eye by saying in summer 2014 that only the OIR Group’s recommendation, not the full Report, would be released. To the dismay of the PPOA, the public outcry over the City Manager’s backtracking led the City Council to override the City Manager by supporting release of the Report to the maximum extent permitted by law. So the City Attorney invited the PPOA to sue; the PPOA dutifully sued, lost in the trial court, appealed, and lost even more drastically in the Court of Appeal. Throughout the nearly 4-year ordeal, the Pasadena PD administration, the Pasadena City Council, and the Pasadena City Attorney were caught in the middle and buffeted by the conflicting demands of the PPOA vs. the public. However, ultimately the public demand for transparency prevailed both politically and legally. No one should wish the PD administration to be put in the middle again on bodycam video release like it was put in the middle on the OIR Group McDade Report.

If the Chief has discretion on whether to release bodycam video, he will inherently be in the position of being pressured by the PPOA to use that discretion to deny disclosure of the videos, by the public to release them, and thereby having to disappoint one side. We suggest that in the court of public opinion, the demand for transparency in police shootings and other critical incidents will usually prevail and the police chief will consequently usually have to exercise whatever discretion he has to release bodycam videos. Putting the Chief in a position where he has to repeatedly say no to the PPOA is not good for the Chief. More fundamentally, automatic release of bodycam videos for all critical incidents best serves the public interest in transparency that builds trust with the police department.

Hayward Assemblyman Bill Quirk threaded the needle between premature public release and the inevitability and desirability of public release by a bill that would have required release of bodycam video after 60 days where there are complaints about officer conduct. That bill would have preempted any contrary policy provision by Pasadena, but it appears it is going nowhere because of police union opposition.

We believe Assemblyman Quirk’s basic idea of automatic public release by a date certain is the approach Pasadena should adopt. We’re not certain whether 60 days is the reasonable time to require the completion of both the criminal and administrative investigations. The McDade administrative review meeting did not occur for more than a year after the shooting, but that was an unreasonably long time; the delay appears to have been driven by the objective to run out the clock so that the OIR Group Report could not be released prior to the trial of the wrongful death lawsuit by McDade’s parents. But whether the date-certain is 60 days, 90 days, or 120 days, automatic release of bodycam video for critical incidents is a better policy than visiting on the police chief the curse of his having discretion over whether or not to release the videos.

Skip Hickambottom and Dale Gronemeier are local civil rights attorneys who successfully prosecuted the Public Records Act lawsuit to release most of the OIR Group Report on the McDade shooting.