Kurt Kerns, Attorney at Law
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Police should not determine who gets to see body cam video

While most police departments in Kansas have not fully implemented the use of body cameras, the next major controversy over these cameras will be who is permitted to review the footage. A significant problem is already developing, where police departments and some other governmental or legislative bodies are placing restrictions on access to these videos.

There are, of course, many privacy concerns that need to be dealt with, but law enforcement officers have no privacy interest in these videos. They are public employees, working as state actors, and have a great deal of personal immunity from legal action while carrying out their law enforcement duties. 

Their departments should never have authority to make the decision regarding a release. When questions of police misconduct arise, the department is hardly a neutral, unbiased party in such a circumstance, and their decision to withhold the release of any video is likely to be suspect.

There are too many cases of law enforcement working to cover up misconduct and once it is discovered, engaging in expensive litigation to protect the cover-up and the wrongdoing. A recent case from Los Angles, involving the killing of two men by Gardena Police, is an example. The misconduct case resulted in a $4.7 million settlement for the families, but the department still attempted to stop the release of the dashboard camera video.

The department spent two years of litigation to prevent the release of the video, which was finally ordered unsealed by a federal judge. The judge noted that the police "cannot assert a valid compelling interest in sealing the videos to cover up any wrongdoing on their part or to shield themselves from embarrassment."

Three large media companies sued for the release and even after the release of the video, the city is appealing to the Ninth Circuit, obviously to obtain precedent that would prevent other such releases.

For video to have any potential to restrain police misconduct, it is fundamental that the police cannot be entrusted to determine when this material is released to the public.

Source: csmonitor.com, "Body camera video is coming, but who gets to watch it?" Henry Gass, July 16, 2015

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