BY PETER SCHEER—Kudos to San Diego DA Bonnie Dumanis for taking a first step to increase public scrutiny of police. Earlier this month, Dumanis, with the backing of the city police chief and county sheriff, released police videos (from body and vehicle cameras) of ten officer-involved shootings since 2014. She also announced a new policy: Going forward, San Diego will release police videos from most, though not all, use-of-force incidents.
San Diego’s embrace of greater transparency can serve as a model for the rest of California. Under the new policy, released video will be edited to obscure the faces of police, victims and witnesses. This allows the public to view and assess the conduct of police—were officers justified or not in their use of force?—while protecting individuals’ privacy. Significantly, this also reduces the likelihood that officers shown in the footage, or their labor union, will run to court to try to block release of the videos.
San Diego’s policy contains one big exception: Released videos will not include footage of use-of-force incidents for which the DA’s office decides to file criminal charges. Although this exception ostensibly protects officers’ fair trial rights (and, not coincidentally, keeps from public view the videos showing police at their worst), it is not legally required, in my opinion. Other California cities should consider a video disclosure policy without exceptions
San Diego is not alone in releasing police videos, although it appears to be the first CA county to adopt a policy of disclosure. Several other municipalities have opted, on an ad hoc basis, to release videos of officer-involved shootings in specific cases. In doing so they are responding to broad-based public pressure. Polls show voters overwhelmingly support greater transparency for law enforcement—and for access to police videos in particular.
Local governments’ responsiveness to public pressure is in sharp contrast to the state Legislature, which favors more secrecy. No fewer than three bills that would raise barriers to public access to police videos have already won approval in the State Assembly and are now under consideration in the Senate.
One of these, AB 2611 (submitted by Evan Low, a Democrat), would amend the CPRA to forbid release of any police video depicting the death of an officer or anything “morbid and sensational” enough to be “highly offensive.” That language is so vague it could apply to any use of force. Another bill, AB 2533 (by Miguel Santiago, a Democrat), would require advance notice to police of the release of video footage requested under the CPRA. The notice requirement is an invitation to police to file a lawsuit, forcing the requester to hire a lawyer. This is a strategy for deterring CPRA requests.
While San Diego and other cities are acting in the public interest, legislators in Sacramento, on this as on so many issues, are doing the bidding of an organized and powerful special interest—specifically, rank and file police officers. When it comes to issues of transparency and accountability for police, the cause of secrecy is championed by cops on the beat. For them, public access is seen as an infringement of their rights as employees. Sheriffs and police chiefs, on the other hand, are more open to the argument that secrecy hampers law enforcement by creating suspicion and distrust in the community.
The tug of war to bring more transparency to police departments will have to be won city by city, with no help from Sacramento. Dumanis, San Diego’s DA, has taken an important first step.
—-
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.