Coalition Asks D.C. Council for Permanent Legislation to Fully Deliver the Accountability Promise of Police Body-Worn Cameras

Fritz Mulhauser | October 16, 2020 | Last modified: October 20, 2020

Open Government Coalition President Tom Susman recommended Thursday (15) that the Council improve how video of police at work is released to serve both the public interest in transparency and officers’ interest in disproving false misconduct claims.

His testimony supported passage of a permanent law that would be a strengthened version of emergency legislation now in effect. Susman urged a number of provisions:

• in the mandatory releases, requiring release of all involved officers’ video;
• narrowing by statute the redactions allowed;
• giving relatives of the victim less sway over release since “even after a bereaved family has viewed a BWC video, the public interest in access is not diminished”;
• encouraging MPD to adopt better technology so video requested under FOIA is available faster and cheaper;  
• limiting use of the FOIA exemption for records of cases under ”investigation” and requiring public justification why secrecy is needed; and
• improving MPD reporting on BWC use including on corrective action where officers fail to activate cameras.  

Action is especially needed, Susman urged, since video releases have been in recent years subject to ”over-reaching redaction based on unclear and opaque standards” as well as delays while “investigations” drag on. Such limits have been the subject of legislative action in other states to improve transparency.

The hearing is available on video at the Council website. The Coalition’s oral testimony starts at 0:27.  Witnesses had three minutes only (and there was no question time). A hundred witnesses were scheduled; see list here.

Susman had time to mention only briefly the Coalition’s other major request, for access to records of complaint and discipline investigations. These also are being opened by other states’ legislatures, over strong opposition from police. He elaborated in the Coalition’s written statement for the record:

“The Council should by statute clarify that the public interest in accountability justifies access to complaint and discipline investigation files. This step was taken by California and New York legislatures and should be taken here. The head of the D.C. Office of Police Complaints agreed in a recent press interview, stating ‘It would add a lot to community trust if the community was aware what kind of discipline was being handed out to MPD officers.’’’

Coalition testimony was supported by research on body camera policy in other states and large cities. The data spreadsheet and a summary analysis are attached.

Government witnesses included the deputy mayor, chief of police, and directors of offices dealing with police complaints and open government. Remarks on transparency-related topics included:

• Dr. Roger Mitchell, Jr., testifying as Interim Deputy Mayor for Public Safety and Justice (while continuing as D.C. Chief Medical Examiner), criticized the requirement for fast release of body worn camera video of serious uses of force. He suggested instead of the bill’s five days there be no fixed deadline and cited the need especially to work sensitively with grieving families of those who had died. He also asked for passage of legislation this year on sealing criminal records. (The Coalition opposed the bills at a hearing in 2017.)
• Police chief Peter Newsham announced a large dataset of details of thousands of police stops and frisks in the street was soon to be available for outside research. (These are data his agency stalled in collecting, only carrying out the 2016 NEAR Act requirement when community groups went to court and got an order. See the back story here.)
• Michael Tobin, director of Office of Police Complaints, noted their October 14 report critical of the process in MPD of disciplining officers after sustained misconduct complaints. The report finds the decision-making “opaque,” especially why the agency is so “reluctant to impose serious sanctions.” The report stresses the importance of the community trust that rules are enforced strictly and consistently, and recommends that could be increased if the Council legislates a role for the office in proposing discipline. (Tobin describes how such systems work elsewhere.) The report stresses revisions “would make the discipline decision more transparent to the community and it would also decrease any appearance of leniency when MPD makes the decision alone.”
• Niquelle Allen, director of the Office of Open Government, urged members to “enhance” the pending bill to also improve public video access via FOIA. She said “Significant barriers to transparency exist when members of the public and the media request BWC footage through the FOIA process. These barriers are over-redaction of the video footage, timely production of the video footage, and the cost associated with processing FOIA requests.” As the Coalition has long argued, she analyzed current redaction rules as excessive, saying: “I do not interpret this [FOIA personal privacy] exemption to extend to police officers operating in their official capacity. There should be no expectation of personal privacy for individual officers acting on behalf of the District of Columbia and in uniform. Further, there should be no redactions when in the public space. It is reasonable to have an expectation of privacy in spaces closed to the public, medical facilities, and the like. If the incident recorded occurs in the public space, then the signs and other indicators of locations should not be redacted. I encourage the Committee to consider amending the law or regulations concerning BWC to address this issue. Further, while maintaining the public’s privacy and protecting witness identities are reasonable justifications for redacting videos, releasing these excessively redacted videos is not in the public’s interest.” Even without legislation, she called on MPD to improve policies clarifying all aspects of release including limits on redaction and costs charged, and bringing redaction in-house for faster, cheaper work (citing the Coalition testimony earlier in the hearing about Baltimore’s low price for released video). She ended noting that “Transparency through the use of BWCs and timely release of useable footage is paramount to maintaining an informed citizenry and a just, transparent government.” Allen’s written statement is here; on the hearing video, her FOIA remarks began about 6:50:00.

Peter Hermann’s account yesterday (15) for The Washington Post of the wide-ranging day-long hearing (that also included bills on the crime of “rioting” and chemical weapons use against protesters) is here.

The Coalition’s stress on stronger rules governing gathering and release of police BWC video was underscored by allegations in a whistleblower lawsuit filed a week ago (9) by an MPD officer.

In her lawsuit, the officer, Sgt. Charlotte Djossou, alleges reprisal for reporting questionable actions of superiors. Those included a roll call instruction in 2018 (attended by a sergeant, a lieutenant and a commander, she says who all “approved the directives”) to “target large groups of men of color in poverty-stricken areas and to search them without probable cause….[and] to violate established Body Worn Camera (BWC) directives by purposely delaying turning on the BWC until after the initiation of the search.” For her disclosure she alleges she was subjected to “unfounded disciplinary investigation,” denied a promised promotion and transferred back to patrol.

The lawsuit does not discuss whether MPD issued any corrective instructions about either the street searches that would be illegal or delayed BWC activation that would violate MPD policy.

The case is Djossou v. D.C., No. 2020 CA 004292 B. It is assigned to Judge Yvonne Williams who will set the schedule at a virtual hearing January 8, 2021, at 9:30. Keith Alexander reported on the case in The Washington Post Thursday (15).

The Coalition has previously noted (in 2019 testimony) that the MPD periodic reports required by law on use of the cameras have shown large numbers of failures to correctly activate. Past reports give no details of follow-up, and are not updated (the latest on the MPD website covers the first half of 2019).

Internal use of BWC video evidence for training and supervision is important. Sgt. Djossou’s lawsuit notes she reported another officer’s false arrest, which was confirmed by BWC footage. The Coalition has asked that use of video in such reviews by MPD and the Office of Police Complaints be documented and reported to the public.