Much of the attention around the police shooting death of Justine Damond in Minneapolis on Saturday has centered on the question of why the officers involved had not activated their body cameras. Details of the shooting are still murky, but it is clear that this is an incident that should have been captured on camera. The fact that it wasn’t offers lessons for policymakers and police departments around the nation.
There are two areas where the circumstances of this tragic event can be questioned: the actions of the officers, and the managerial policies and practices of the Minneapolis Police Department (MPD) that lay behind them.
The officers were required under their department’s policy to activate their cameras in situations including “any contact involving criminal activity.” Considering that the officers were investigating a report of a possible assault, that provision can be interpreted as requiring activation. The policy also requires activation “Prior to any use of force,” or thereafter “as soon as it is safe to do so.” The state agency investigating the shooting now states that the officers’ cameras were turned on after the shooting, but it is not clear at what point that happened.
1. Don’t rely on laundry list language in activation policies.
Regardless of what happened on the scene, any body camera-equipped police officer should be recording when they show up to respond to a 911 call. If the officers were not, at least part of the problem lies with their department, because when it comes to camera activation, the MPD’s body camera policy is quite weak. It offers a laundry list of situations in which officers are expected to turn on their cameras, but in a complicated world such a list inevitably leaves out (or is ambiguous with regard to) many circumstances where the cameras should be turned on. The laundry list approach is one we always advise departments to avoid. (A list of examples is fine as long as the rules aren’t limited to those examples.)
The ACLU of Minnesota, in a 2016 statement on the MPD’s then-proposed bodycam policy, prophetically told the department, “Police should activate their body cameras at the inception of every law enforcement encounter with a member of the public,” warning them that the laundry list approach “may allow for the exclusion [of] videos that would be rightfully captured under a policy that instructs officers to simply activate their cameras at the inception of ever law enforcement encounter with a member of the public.”
And in our national ACLU recommended body camera language, we urge departments to require activation “whenever a law enforcement officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a law enforcement officer and a member of the public.” The absence of that kind of catch-all, no discretion language is what's missing from the MPD policy. Such language is common among the many bodycam policies we have looked at. Overall, while issues such as public access to footage and whether police should review footage before making an initial statement after a critical incident remain controversial, there has not been as much focus or controversy on activation policies.
Many policies around the country are good, but that is not to say activation is not a problem. We know that since 2014 at least 16 people were killed by police officers wearing body cameras that were either not turned on or not operational. A 2014 study of Phoenix police found surprisingly low rates of officer compliance with activation policies.
It’s important that activation policies minimize officer discretion, and requiring across-the-board activation for all calls for service and law enforcement actions helps to do that. Such a clear-cut policy helps not only with public oversight, but also helps officers because it ensures that any who are involved in controversial incidents won’t be accused of trying to hide something just because of how they interpreted the rules around when they need and need not activate their cameras.
2. Enforcement is key.
That brings us to a second lesson: enforcement is key. Police officers know as well as anybody that a rule that lacks teeth is useless. Yet, as the ACLU of Minnesota pointed out in 2016, the MPD policy “does not provide for any specific discipline for officers who violate” the policy, even egregiously. We have seen other departments that have decent policies on paper but where cameras have failed to stem police abuses because management didn’t enforce those policies (I wrote about Albuquerque here).
In our model language we urge departments to have a policy under which “appropriate disciplinary action shall be taken” against officers who fails to follow the policy. We do not get into details about exactly what is “appropriate,” but presume that a competent police chief knows what he or she needs to do to ensure reasonable levels of compliance. We also call for a rebuttable evidentiary presumption in favor of civil plaintiffs suing over police misconduct who can “reasonably assert that evidence supporting their claim was destroyed or not captured.” That presumption can be overcome by contrary evidence that exigent circumstances made compliance impossible.
The ACLU of Minnesota pushed for good strong policies with respect to these issues and others—not only with the Minneapolis police department, but also during nearly two years of hearings on statewide legislation on the issue. In the end, unfortunately, the legislature bowed to the lobbying of law enforcement associations and in its statewide law addressed only the question of public access to video footage (and on that, wrote a bad law that gives law enforcement power to withhold nearly all footage).
The firestorm around the Damond shooting and lack of body camera footage are a reminder that the public increasingly expects that critical incidents involving police will be captured on camera. Clear, non-discretionary policies that cover all law enforcement interactions serve not only the public and its interest in overseeing police use of force, but also police officers, who do not want to be falsely suspected of abuse, and police managers, who want clarity as to how their officers are behaving in the field.
We’ll never know, but it’s possible that had the officers in the Damond shooting been subject to the clear guidance of a good state law or department regulation, they may have had their body cameras activated. It’s also possible that had they activated their body cameras, their knowledge that they were being recorded would have changed the decisions they made that night.
