Who watches the watchmen?

Antony Davies and James R. Harrigan

Three things have become strikingly evident with the rise of smartphone cameras: bigfoot doesn’t exist, aliens are not visiting us with any regularity, and we have a serious problem with police behavior. This problem has proved to be so profound that many politicians, and even a good number of police officers themselves have pushed for body cameras to become part of the standard uniform. Why? Researches have determined, quite convincingly, that when police officers wear body cameras they use force half as often, and citizen complaints drop by over 90 percent. Body cameras don’t just provide a level of accountability heretofore unimaginable, they alter the behaviors of both the police and citizens. Unsurprisingly, everyone behaves more civilly when on camera.

But not everyone is a fan of cameras. From Massachusetts to California some police unions and state lawmakers have opposed mandatory use of body cameras and, where cameras are required, the public’s access to the video. Among the opponents, we can now count Pennsylvania’s Governor, Tom Wolf.

Governor Wolf said that he will sign a bill that recently passed the Senate exempting police audio and video recordings from Pennsylvania public records requirements. The bill further grants police departments discretion over when to refuse public requests for copies of the recordings.

The bill appears to be designed less to protect citizens than to make it easier to attain convictions. One of the bill’s co-sponsors, Sen. Stewart Greenleaf, says as much: “I worked extensively with law enforcement agencies, District Attorneys, and judges throughout the Commonwealth to find ways to ensure the integrity of criminal convictions.” The people most conspicuously absent from Sen. Greenleaf’s consultation list? The citizens he supposedly represents.

Police don’t need body cameras to obtain more convictions. The entire system is already weighted to take the word of a police officer over that of the accused. The point of body cameras is to hold police accountable. But how much accountability is there if the people who are being held accountable get to who decide who sees the video?

And police discretion in deciding who sees the video will be quite broad. They can deny requests for recordings if they or the prosecutor's office deem that the identity of a victim or confidential informant, or the evidence in an investigation cannot be removed from the recording. Recordings made inside law enforcement facilities are also exempt from public viewing. And there will be a 60-day window on requests. People who do not realize they need to make a request within that window will simply be out of luck.  The law does not address how long recordings must be preserved. But lest there be any doubt who this law is designed to protect, it does leave the writing of guidelines for handling recordings to...the state police. Of course, citizens can still obtain recordings by court order - assuming the video still exists.

All of this happens against a backdrop of qualified immunity, which already makes the police nearly unaccountable. Qualified immunity protects government officials, including the police, from liability for civil damages, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." In short, qualified immunity renders the police nearly untouchable in civil courts. And now that we have new technology to determine whether the actions of police would, in fact, be properly understood as violating the statutory or constitutional rights of citizens, we see the political class further shielding law enforcement from the consequences of their actions. 

Technology has advanced to the point that we no longer have to take a police officer’s word for what happened under the color of authority. This, understandably, has many police officers concerned. What is not understandable, though, is that politicians would defer to that concern at the expense of the legitimate concerns of citizens. The police are, in the end, public servants. Anything that holds them more accountable to the public they serve is by definition a good thing. Governor Wolf should think about that before he signs this bill.

Antony Davies is associate professor of economics at Duquesne University in Pittsburgh. James R. Harrigan is CEO of FreedomTrust.

This article first appeared in the Philadelphia Inquirer.