San Diego began outfitting police officers two years ago with body-worn cameras to repair the public’s relationship with the department following a series of misconduct cases. The cameras would protect officers from false complaints and document any abuse of authority.
Yet the department has refused to disclose the recordings to the public – and in some high-profile cases, officers failed to turn the cameras on, forcing a policy change.
It’s raised a persistent question: How can cameras rebuild public faith in SDPD if the public can never see the footage?
In fact, when former SDPD Chief William Lansdowne began his push to bring police cameras to the department, he explicitly said the purpose of the devices is to document police interactions for public view.
“Everybody gets to look at them and find out if they’re acting correctly and properly,” he said in January 2014. “It protects the officers as well as the citizens.”
It hasn’t always worked out that way.
After cameras were on hand for two use-of-force incidents that year, we made a records request to see the videos, but were told they wouldn’t be released, even after the investigation was completed.
State law allows departments to withhold evidence from public records requests. They can choose to release it, but they aren’t compelled to do so.
Now, the city is months away from electing a new city attorney, who serves as legal counsel to the mayor and City Council and prosecutes misdemeanors for the city.
The winner could hold major sway over how the city sorts out when to release video from police body cameras.
Ultimately, the City Council and mayor set policy in the city. But the city attorney can push the elected decision-makers in one direction or another – both in developing an over-arching policy, and on the release of any specific video that becomes a subject of scrutiny.
The five primary candidates – four of whom are Democrats – fall along a spectrum from releasing the video as much as possible, to hardly any video release at all.
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Gil Cabrera, a Democrat and former chair of the San Diego Ethics Commission, said the first thing needed is a policy that dictates when videos will be released.
That policy should spell out specific milestones at which a video would become public. In his view, that should happen the moment the district attorney concludes an investigation and decides whether to press charges.
“There’s logic to not releasing it before that: You want that to be a legitimate and fair investigation,” he said. “But once that call is made, it gets difficult to come up with reasons why you wouldn’t release it.”
In the recent case of an officer-involved shooting in the Midway District (that case involved footage from a private security camera, not a body-worn camera) the city continued to fight the release of footage of the incident after the DA announced the officer wouldn’t face charges, citing ongoing civil litigation.
Cabrera said that concern was unwarranted.
“Most litigators know it’s unlikely that you wouldn’t be able to get a fair jury in a city of this size,” he said. “The penetration of a video like that being seen in a city of this size would be small.”
He’s also pushing an idea to deal with the limitations of the city attorney’s office. He intends to make all legal advice he submits to the mayor and City Council public. So if he were to encourage city leaders to release a video, and they vote another way, his legal memo would nonetheless be public.
That’s normally not done, he said, for fear it could be used against the city in future lawsuits, or – in something like a real estate transaction – could be used against the city in negotiations.
“I am fundamentally skeptical of not releasing things to the public,” he said. “I just think it rarely is going to cause the damage people think it’s going to cause. And second, I think withholding things creates more problems than it solves. I recognize there are needs for exceptions, but they should really be exceptions, not rules.”
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Rafael Castellanos, a Democrat and commissioner at the Unified Port of San Diego, provided a statement calling for a policy that balances the need for transparency against the necessity to protect due process rights and privacy concerns, but declined an interview.
He did, however, go into more detail on his views in a questionnaire that the Deputy District Attorneys Association required of candidates seeking its endorsement. Voice of San Diego obtained Castellanos’ questionnaire responses.
Footage should be withheld as evidence during an investigation, and if a completed investigation results in charges or a lawsuit, it should be withheld until that is completed as well, Castellanos wrote.
“If no investigation/proceeding is commenced within a reasonable period of time, the information should be destroyed after the expiration of a reasonable retention period,” Castellanos wrote.
Videos should always be released to those involved in the incident, such as victims, litigants or individuals recorded by the cameras, he wrote. And to protect privacy, the videos should digitally redact certain images, disguise voices and encrypt the information.
His prescriptions boil down to releasing the videos only to those directly affected by the incident, and never to the broader public.
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Mara Elliot, a Democrat and deputy city attorney, has stressed in her campaign that the city attorney should be a nonpartisan legal representative to decision-makers.
She extends that view to the question of releasing body-worn camera footage.
“The city attorney can lay out the options and explain in a layperson manner the legal implications of each decision, and those of public perception,” she said. “If what they want to do is clearly illegal, that’s one thing, otherwise a lot of discretion rests with them.”
She said she would push for an upfront policy, but said it’s important to remember how often that won’t be helpful, either.
“Officials want a black-and-white law to follow, but as a lawyer I don’t know that’s practical, because every case is so different,” Elliot said.
Nonetheless, she said her basic view is that footage should become public when an investigation is completed. She said she could push elected officials toward policy changes by stressing what’s happening in other jurisdictions, such as Seattle, which has an expansive disclosure policy for such footage.
She also said she intends to hold quarterly town halls, and to send deputy city attorneys to planning groups and town councils to hear their concerns directly.
“I think our information as an office shouldn’t always be filtered through our client (the City Council and mayor),” she said.
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The lone Republican in the race, Robert Hickey, a deputy district attorney, said disclosure needs to give way to concerns for privacy, civil rights and due process.
“Transparency is the default position, but due process trumps from time to time, especially on timing,” he said.
That opens the possibility, though, for a disclosure rule that exists only in theory: With enough reasons for withholding camera footage, keeping the footage private becomes the de facto default position. That, Hickey said, is where a policy could be helpful.
“I get the exceptions can overwhelm the rule of disclosure, and I think that can happen, but that’s when policymakers set standards of how, and when, and why, versus just weighing in on instances of why not.”
Hickey looked into the American Civil Liberties Union’s guidelines and “they were actually a pretty good list of things to consider,” he said.
The ACLU recommends requiring the consent of the victims – which can include officers – before release, along with redacting things like victims’ faces. If videos can be redacted, they should be disclosed, the ACLU says. The group also calls for videos to be released within a few weeks if they aren’t flagged as part of an incident. Once flagged, either because of use of force, or a complaint is filed, they should be held for a longer period, such as the state of Washington’s three-year standard.
Nonetheless, Hickey said body-worn cameras constitute a dramatic shift in the world of law enforcement.
“I’ve done this for 20 years, and this is one of the biggest changes on how we deal with prosecutions,” he said. “The job of a prosecutor now involves watching hours and hours of body-worn camera footage.”
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Bryan Pease, a local attorney who has brought high-profile lawsuits against the city on animal rights and environmental issues and who previously ran for City Council , called for far fewer restrictions on the release of footage than any other candidate.
“I would almost always lean to release footage if there’s an incident – if there’s an officer-involved shooting, if there’s an incident that raises issues that involve public interest, it should be released,” he said. “The only time it shouldn’t is if officers are in a private home and are serving a warrant or responded to domestic violence, for instance, and there are privacy issues.”
In the instance that the City Council votes to withhold footage, he said he would then see his client as San Diego residents, and would pursue other avenues to force the footage’s release.
“I don’t know that it is within the power of the City Council to withhold that kind of information,” he said.
He said he’s unbothered by concerns that releasing footage would taint a jury pool.
“First of all, officers are hardly ever prosecuted for misconduct, so chances are there isn’t a jury, at least criminally,” he said. “But really, it isn’t that hard to find folks that haven’t seen information about the case.”