KOJO NNAMDIYou're tuned in to The Kojo Nnamdi Show on WAMU 88.5, welcome. Later in the broadcast we'll collectively mourn the impending loss of one of D.C.'s greatest treasures. We'll give you a hint. It's black and white, fluffy and a critical factor in U.S. relations with China.

KOJO NNAMDIBut first it's been over five years since D.C. announced a pilot program to outfit 400 police officers with body cameras. Over 3,000 cameras have been deployed in that time. But critics still say the program is not as transparent as it should it. So what is the best way to police policing? Joining me to discuss this is Emily Gunston, Deputy Legal Director for the Washington Lawyers' Committee for Civil Rights and Urban Affairs. Emily Gunston, thank you for joining us.

EMILY GUNSTONThanks for having me.

NNAMDIMichael Tobin is the Executive Director of the D.C. Office of Police Complaints. Michael Tobin, thank you for joining us.

MICHAEL TOBINThank you.

NNAMDIAnd Christy Lopez is an Instructor and Distinguished Visitor from Practice at Georgetown Law. Christy Lopez, thank you for joining us.

CHRISTY LOPEZThank you.

NNAMDIChristy Lopez, you have been analyzing body camera's use in several cities for a number of years. So place their use in broader context for us. Are body cameras the end all, be all of solutions to police brutality?

LOPEZNo. There is no one thing that is the end all, be all solution to police brutality. But they can be a really important tool if supported by the right policy and leadership in a department, and I think that's what's we've seen and are seeing in Washington D.C.

NNAMDIThey're not the panacea people may think of them. And is there a cultural problem having to do with the use of body cameras or is there a cultural problem having to do with police departments in general?

LOPEZI think there is both. But I think the cultural problem specific to body cameras is twofold. First, I think there's an individual aversion. You can imagine having a camera put on you and recording everything you do at work all day long. You could imagine that would take some getting used to. And then you layer on top of that the fact that police departments are just by their nature not very transparent. It's not in their DNA. So this is really challenging them to be much more transparent than they've ever had to be in the past.

NNAMDIMichael Tobin, the Office of Police Complaints plays an important role in the body camera initiative MPD has taken on. But first what is OPC's relationship with the police department more broadly?

TOBINWell, I think I'd like to start off by just informing your listeners that, you know, we are a D.C. government agency, the Office of Police Complaints. And our mission is to improve trust in the Metropolitan Police Department. And one of the main ways we do that is by providing a means for people in the community to file a complaint against MPD and allowing them a means in which an independent investigation is conducted. And that's what we do. That's our main job is we investigate police misconduct complaints in MPD. And the way it relates to the body worn camera footage is in 2014 our police complaints board, it's a citizen board in D.C. initially recommended that MPD start a body worn camera program.

TOBINAnd later in 2014 -- that's how the program got started was our board had recommended it, the first pilot program. And then since then we've had full deployment now for about three years in MPD of body worn cameras within the patrol division. And our office, the Office of Police Complaints, has full access to all of those body worn cameras that are operational now. So the first thing that we do when we receive a complaint is we pull up all body worn camera footage. And that's really changed the way we do business. And that changed completely how we investigate police misconduct complaints in the District.

NNAMDITo be clear, the Office of Police Complaints is not a part of the Metropolitan Police Department.

TOBINWe are completely separate from the police department. And independent agency -- independent D.C. government agency so we have complete access to all of the reports and video footage just like Internal Affairs would within MPD. And we conducted a completely independent investigation of police misconduct complaints.

NNAMDISo when does the Office of Police Complaints review body camera footage?

TOBINUsually the first thing we do when we receive a complaint is we review all the footage

NNAMDIFirst you have to receive a complaint.

TOBINWe are a complaint driven agency and we must receive a complaint first before we will access the body worn camera footage. That's correct.

NNAMDIWhat happens if you determine that an officer behaved inappropriately?

TOBINIf we determine that there was misconduct and an officer did not comply with policy or procedure, what we do is -- first of all, we can refer that complaint to a mediator to mediate the complaint by an independent third party. And a lot of people -- probably about 10 to 15 percent of all of our complaints go through our mediation program and all our people are very satisfied with just sitting down with the officer face to face and discussing what happened and making sure that they're heard, and so that it doesn't happen again. If the misconduct was more severe, we'll refer that misconduct to a complaint examiner. It's an administrative hearing type of process.

TOBINIf that hearing examiner agrees with our finding that there was misconduct then that case gets sent to the police chief and he must then discipline the officer for the misconduct. And then there's two other things we can do with a complaint too. Rather than referring it simply for discipline is if we feel that an officer simply needs more training in a certain area I can automatically refer that officer back to the police academy for further training. We call that policy training referrals.

TOBINAnd then we also have the last disposition we would use on a complaint would be what we call rapid resolution. That's where if we see an incident -- we receive a complaint regarding an incident that we think could be best handled by the district commander in rapid fashion without going through a complete investigatory process, then we'll refer that complaint back to the district commander. And he or she can resolve it to the community member's satisfaction.

NNAMDIChristy Lopez, what are some of the concerns you heard from police officers as body cameras were starting to be rolled out?

LOPEZSo although the program has been in place about five years, over the course of the three years that the Police for Tomorrow program at Georgetown has been working with MPD it went from very few officers having cameras to now they all do. And officers are concerned about two things. One is they are concerned about inconsistent supervision so that they will get mixed messages. Some supervisors will ding them for -- in the past they might have let someone pour out an open container rather than ticketed or arrested them. And now maybe a supervisor sees on body camera footage that they didn't do that.

NNAMDIIt affects your evaluation.

LOPEZYeah. It could affect your evaluation. So they're concerned about that. And they're concerned about just being watched all the time and that sense of being dinged for doing very small errors. And I think that some of that is dissipating as time goes on and they see that it's not being used that way. This is a change that police departments across the country have to undergo. Officers always start out being very fearful of body cameras and generally over time they become much less concerned about them.

NNAMDIEmily Gunston, outside of OPC's oversight there's not a lot of clarity among the public as to what MPD is using body camera footage for. What's your understanding of how it's supposed to be used?

GUNSTONSo there's not a lot of transparency into how MPD is using this footage, right? I mean, one of the ways that MPD should be using the footage is using it to determine whether or not their policing strategies are effective, whether or not their officers are following policies, whether or not there are training concerns, whether or not they're doing things that are putting their lives at risks or others people's lives at risk. And they should be regularly viewing the body cameras just to understand what their officers are out there doing.

GUNSTONSupervisors should be regularly viewing the body camera footage of the officers that they supervise to determine whether or not corrective action needs to be taken. That doesn't necessarily mean discipline. That means talking to their officers about how they're doing their jobs and helping them do it better.

NNAMDISo what's supposed to happen to the footage on paper as the program was designed? And what do we know about how it's used in practice?

GUNSTONSo it depends if you're talking about how the video is used internally or if we're talking about public access to the footage. We've been doing a lot of work around public access to the footage. We represent a woman whose son was killed by the Metropolitan Police Department and she was trying to obtain access to the body camera footage. The policy doesn't give her the right to view that footage. That's, of course, nothing that prevented the police department from giving her information about what happened to her son and letting her watch the video. But because they were not required to let her watch the video they chose not to let her watch the video or to provide her any information about what happened.

NNAMDIWell, let me interrupt for a second. Why are they not required to give her the video, because apparently it gets really complicated when we talk about legal shootings?

GUNSTONSo there's a few different ways to think about this. You know, and I want to make sure that we separate out access to the family members of the person, who was killed versus public access, public release of the footage.

NNAMDIOkay.

GUNSTONSo when we're talking about public access to the footage there's a couple of ways that can happen. One is through a Freedom of Information Act request and there's some exceptions to the Freedom of Information Act. And then second is the mayor per statute is in areas of public concern can choose to release the video even if one of the exceptions to FOIA applies. In this instance even though the shooting happened well over a year ago, the Metropolitan Police Department has refused to release the video, because there's an investigation ongoing. This shooting happened well over a year ago so it's really hard to understand what could possibly be left to do in that investigation that the video could interfere with.

GUNSTONThe police department has already made a statement about its view of what happened in that shooting. So it's hard to understand why they wouldn't release it except that they don't have to. The policy doesn't require them to because they haven't technically closed it.

NNAMDIExplain that for a second, because it's my understanding that you can only request to view the footage and have the right to do so if you are in the footage.

GUNSTONThat's right or if you're the parent of a minor whose in the footage. That's different from public release. That is actually going to the police department to be able to watch it. You can't record it and you don't get a copy of it. But, for example, in the case of Ms. Austin who we represent, her son was not a minor and he's no longer alive. So he can't request it and she's not entitled to it, because he wasn't a minor.

NNAMDIAllow me to go to the phones. Here is Heather in Washington D.C. Heather, you're on the air. Go ahead, please.

HEATHERHi. Can you hear me?

NNAMDIYes, we can.

HEATHERI'm a court appointed public defender and the body worn camera is a game changer. I have had two cases outright dismissed. One was a driving under the influence, when the footage clearly showed that there was no car problem and that the driver was not drunk. And another was a young man, who was searched and contraband was found, but the police didn't have any right to search him. And once that became clear to the prosecutor he confronted the police officers and the case and the indictment were dismissed. On the other end, when you have a client, who thinks there's no evidence against him or her and they view the body worn camera footage it often makes them decide that they should enter a guilty plea. So I think the body worn camera is amazing in terms of criminal law.

NNAMDIOkay. Thank you very much. Anyone care to respond to what you just heard?

TOBINI'll make a quick comment on that.

NNAMDIMichael Tobin.

TOBINI mean, it really is a game changer, because it's changed the way we do business in the Office of Police Complaints too. We now have a third party independent witness to the vast majority of police community member interactions and we never had that before. Before body cameras we'd have to weigh the credibility of the witnesses, the complainant, the officer. And we'd have to do the same thing in the criminal courts. It would all be a question of weighing the credibility. Now there's always a third party witness, almost always, most of the time now, probably at least 80 percent of the cases.

NNAMDIBut, Emily Gunston, there's this. You have a client, who was allowed to see footage of her son being shot. But her difficulties with MPD did not stop there, right?

GUNSTONNo. They didn't. And by the way MPD did not easily or willingly allow her to watch the video. She contacted us, because MPD was unwilling to give her any information about what happened to her son. She saw the press conference on the news that her son had been killed. But nobody from MPD contacted her except to show up at her door and provide her with a business card for Internal Affairs. She called Internal Affairs and nobody would return her call. So she had no information about what happened.

GUNSTONShe determined that the only way to get that information was to try to watch the body camera footage, which is a terrible tragedy, right, because she -- MPD really squandered an opportunity here to gain her trust. They could have brought her in. They could have told her what happened. Given her information about what they knew so far, and maybe she wouldn't have needed to watch that video. But ultimately what happened was she came to find us, had made the determination that she needed the video. And so we contacted Karl Racine, who appealed to the mayor, who got her access to watch the video. But they've still refuse to release it publically.

NNAMDIGot to take a short break, AC says on tweeter, MPD should be ashamed that they instituted a program that isn't completely in the light of day. What do you think? Give us a call 800-433-8850. How would you like to see MPD make use of body cameras? Send us a tweet @kojoshow or email to kojo@wamu.org. I'm Kojo Nnamdi.

NNAMDIWelcome back. We're discussing police body cameras and their use in the District of Columbia with Michael Tobin, Executive Director of the D.C. Office of Police Complaints. Emily Gunston is the Deputy Legal Director for the Washington Lawyers' Committee for Civil Rights and Urban Affairs. And Christy Lopez is an Instructor and Distinguished Visitor from Practice at Georgetown Law. Let's go to Chez in Columbia Heights. Chez, you're on the air. Go ahead, please.

CHEZYes, hello. Thank you, Kojo. So I would like to pose a question as to when the police officers are required to turn on their cameras, because a lot can happen before that or they may never turn the cameras on in certain incidents. I used to teach swimming at Wilson Aquatic Center and Wilson High School was just immediately adjacent to it is often -- you know, has prank bomb scares. So sometimes they put up tape around the area. I happened to go under the yellow police tape right in front of the commander. He didn't say nothing. But shortly thereafter I was riding on my bike, a big police officer approached me and said, you know, that I had to get out of there. But the way he talked to me was very disrespectful.

NNAMDIAnd was his body camera turned on or not?

CHEZNo, to my knowledge no. And how would I know if the body camera was on? Secondly, so I said, sure. I'll get out of the way, but I think you could use some additional training on how to speak to the public.

NNAMDILet me get to the body camera issue on that, because I don't want to get into all of the details of the interaction you had with the police officer. Michael Tobin, under what circumstances are police required to turn on their body cameras, because the ACLU of D.C. asked on tweeter, when it comes to body worn cameras in D.C. why are there no meaningful consequences for failure to activate cameras or when officers have been found to tamper with the equipment?

TOBINThank you. That's a really good question. And under what the caller has just described is a situation that the officer was required to turn on the camera. And the officer is also required to inform the community member that they are on camera and it sounds like possibly neither one of those things happened in that instance. And that's what we're finding in about almost a third of the cases that we've audited for body worn camera compliance.

TOBINWe found that almost a third of them have some level of non-compliance with the policy. Either the officer turns it on late, turns it off early, doesn't turn it on at all or does not inform the community member that it's turned on. And that's an issue that we've spoken with the department on. It's something that they need to improve upon. And the way that I suggested that they improve upon it is have a more robust policy of enforcement. And when a violation is found by an officer those officers should receive a sterner level of discipline than they have been in the past.

TOBINI think a few sterner levels of discipline being issued will go a long ways to better compliance. And I'd like to see a lot better compliance than what's been described, because I've heard this a lot from other community members too. And one thing I wanted to mention about that too is one adjustment that was made since the program started was the lookback period. So now that camera is basically on all the time, but it's not recording actually until the officer pushes the button.

TOBINSo now when the officer pushes the button it will automatically look back for two minutes from the time that officer pushes the button. So we'll be able to look back for two minutes. We won't have audio. But we can look back and see everything that happened for two minutes before the officer turns it on. And likewise afterwards that it's turned off. And that's helped a little bit in some of the cases that we've had.

NNAMDIGot to get back to the question of access, though, Emily Gunston, because it becomes even more complicated when we add in whether a video is made public. Here in D.C., who gets to decide that and is that setup common practice?

GUNSTONSo the FOIA law is what theoretically decides whether or not a video becomes public. The mayor can intervene essentially and determine --

NNAMDIAnd only the mayor.

GUNSTONAnd only the mayor. That's right, and only the mayor. But at a certain point the MPD doesn't get to decide anymore, right? Once an exception no longer applies, for example, if the reason they're not realizing it is because there's an ongoing investigation, when that investigation ends, they have to release it. These are public records. This is a democracy. MPD is a public agency. They need to release these videos. They are holding these investigations open for a very long time and using that as a justification to not disclose these videos.

NNAMDIChristy Lopez, regulating when videos can and cannot be released to the public is complicated, though. Talk about some of the privacy issues.

LOPEZYeah, there are some significant privacy issues, just even taking the example that Emily is talking about. You can imagine that if you are the parent of someone, who is killed by the MPD Police, you might have very mixed feelings about whether that video, the video of that shooting is released to the public. And it's a very difficult situation to decide what's in the public interest versus what's in the family's interest and those may not coincide. Some jurisdictions make the families, which is dispositive as to whether that video will be released publically. In other's it's a factor. In others like in D.C. it's not even a consideration. So I think that's an area of opportunity for D.C. to really grapple with some of those really difficult issues. But we do have to recognize that these are not easy issues to resolve.

NNAMDIAre you prepared to go beyond grappling with the issues? How do you think public releases should work? Should it be different than the current setup where Mayor Bowser has sole authority?

LOPEZYes. I mean, in my view it should be for a couple of reasons. One is you're asking the mayor to decide whether to release public video, when the public release of that video might have implications for the city's financial liability in a given case. That seems like a difficult position and maybe an unfair position to put a mayor in. Probably that should be an independent entity that makes that decision. But more broadly there needs to be -- you know, police departments are by their nature not particularly transparent. MPD is no different.

LOPEZIn fact, if you look at the way the MPD has compared other departments, it compares favorably as far as the access it gives to people. But what we really need is for our public officials and the public to push MPD beyond its comfort zone, because -- and have this information released. And let MPD learn for itself that the sky doesn't fall. And in fact it can make its officers safer and its work more effective.

NNAMDIMichael Tobin, how have you seen this debate about making body cam videos public play out at OPC? Do you think this needs to be addressed?

TOBINI think it's ripe for addressing. I really think we need to make some adjustments to the public availability of it. For instance, with the mayor's release of the video. Over the last three years the mayor has released from my count four videos, four different times over the last three and a half years. And surely there's probably been more instances that could have been more helpful to the community to see the videos, and I understand there's a lot of constraints and a lot of -- that it's a complicated matter, but we need to look at it again.

TOBINI hear a lot from complainants and from members of the public too that it's a difficult process to go and see even their own video in which they're a subject in it. And a lot of them are not even aware that if you are a subject of the video and I'll tell your listeners now. If you are in the video if you are the subject of a body worn camera video you have the right to go to the MPD and watch that video. And a lot of people just simply don't know that and aren't aware of the process. So we've been trying to educate people that they can do that. So yes, there are adjustments we need to make on it.

NNAMDIChristy Lopez, let's make it a little more complicated. Even determining when an officer can see his or her own body camera footage can get complicated. Tell us about that and how it compares to traditional criminal law.

LOPEZSo there has been a dispute across the country about whether police departments should allow officers to view their body camera footage before they give a statement about an incident. And generally police departments allow officers to review video footage before giving a statement in a routine case, writing an arrest report or something like that. But in a critical incident like an officer involved shooting they usually, but not always won't let the officer review the footage before making that statement.

NNAMDIWhy?

LOPEZThe argument is that the officer's -- that as with most of us we might be influenced by what we see in the video and that will replace what we actually remember. And that officers can game that and come up with information that is more favorable. Other people say that actually that's just a way to ensure that you have the best evidence. In my view if the argument is that the best way to ensure the accurate evidence is to let someone view the statement before they give -- review the video before they give a statement. Then that should hold true across the board for criminal defendants as well as police officers. I mean, if we're not willing to do that then I think the argument that it's a better evidence doesn't really hold water.

NNAMDIHere is Kurt in Linthicum, Maryland. Kurt, you're on the air. Go ahead, please.

KURTGood afternoon. Thanks for taking my call. I wanted to tell you about a situation that occurred in Virginia. My son was stopped for having a broken headlight, and during that stop he was assaulted by the police officer. He was basically punched and, you know, dragged from the car. Thrown to the ground and put in handcuffs. And the body cam was available. We actually, you know, took that to court. And so the body cam all was available. And it showed that my son did nothing to cause that. His hands were in full view. There was nothing obstructed. The glove box was open, nothing dangerous, you know, coming from him.

NNAMDIWhat was the result of the case?

KURTBased on the body cam video the judge ruled that my son's Fourth Amendment right were violated.

NNAMDIDid you have any difficulty accessing the body cam footage?

KURTA little, there was some restrictions: He could see it, He could only see it once, He could not take anybody with him, Things of that nature. So they had some procedural things that were in place. But once we got an attorney, the attorney just put in motion to the Commonwealth attorney and then she got access to everything that she needed.

NNAMDIOkay. Thank you very much for your call. Michael Tobin, from what you've seen do body cameras change how officers are acting in the field?

TOBINThe body cameras have changed -- they have not changed the general police behavior that I have seen from a 30,000 foot perspective. But on a one to one basis anecdotally what I have observed is officers being more formalized in their majority of their contacts with community members, because most of the time they know that they are on camera. However, overall behavior of officers really has not changed that much from what I can see. And I'm saying that from a good and bad perspective. Overall behavior of officers generally most of the time is good. Sometimes it's not. And that's why the Office of Police Complaints exists. But when you look at the camera footage the way we do, we typically only see cases as a result of a misconduct complaint. And that's the end that we're observing it from.

NNAMDIChristy Lopez, the city government commissioned a study in 2017 that found just this. That body cameras do not change how officers conduct themselves. But I understand that you take issue with that study, why?

LOPEZI think it was a good study in some respects, but it really was very limited in its scope. All it looked at is whether there was a difference between reported uses of force between officers who had body cameras and those who didn't. I investigated police departments with the Department of Justice across the country. And there is often underreporting of use of force. So it doesn't surprise me that once officers have cameras they are more diligent about reporting force. So actually that report actually raises the question of whether there might underreporting of force where officers didn't have cameras. But more importantly as the callers have talked about use of force is not the only thing we're concerned about when we're talking about officer behavior.

LOPEZThe much more common problem that engenders distrust is, you know, stops and searches that are unnecessary or improper or just demeaning language. And I think the cameras have a real ability to change officer behavior in that area. And the study didn't look at that all.

NNAMDIEmily Gunston, to even have footage to work with officers have to, well, turn on their cameras. Do we have a sense of how often that is or is not happening?

GUNSTONI mean, it's hard to say. What the Office of Police Complaints has found is that in a fair number of cases a much higher number of cases than you would expect, they're not turning them on. And that certainly raises concerns about the officers' motivations.

NNAMDIMichael Tobin, does the Office of Police Complaints treat failing to turn on the body camera as misconduct?

TOBINWell, we can only act on a basis of what we received as a complaint. So we have seen instances where officers have not had their cameras turned on and when that happens and there's underlying misconduct we will review that in a much more serious manner. I think one of the issues behind it is with respect to the Office of Police Complaints is we would like to see the ability to go forward on misconduct that we observe in the body worn camera footage, but that we do have a complaint on. Right now we can only go forward on a misconduct investigation if we have a complaint.

TOBINHowever, there are many instances where we observe misconduct and it's not particularly complained about specifically by the complainant. So that's one of the things we've asked the Council to look at. To look at expanding the office's jurisdiction so that we can more fully utilize the camera footage.

NNAMDIOn now to Micah in Hyattsville, Maryland. Micah, we don't have a great deal of time left, but go ahead, please.

MICAHHi, Kojo. Long time listener, first time caller, thank you for taking this call. My comment is about the visual impact of releasing these videos publically. I'm very grateful for the work that the cameras are doing. But my concern is about the psychological impact of seeing black bodies and brown bodies gunned down in the street in such an explicit way. And I feel very strongly that it adds to the American narrative of violence against black people. Visual violence and not that it's casual, because obviously these are very serious cases. But it does kind of add to the numbing effect, I believe.

MICAHAnd I wanted to know if either Professor Lopez or Ms. Gunston could speak to that and the way that it complicates releasing these videos. If any studies have been done on it or if anyone is considering that when the mayor has to decide whether or not to release the videos. Thank you.

NNAMDIChristy Lopez.

LOPEZYeah, this is becoming an increasingly -- there's increasing recognition of this problem, and that is one of the very complicating factors. It's not just the family's wishes that you need to be concerned about. But really what are we doing, you know, it's almost a commodification of pain of black and brown people that adds to the pain that is already being suffered. So you really do need to be mindful, because at the same time there's no question that seeing visual representation of what officers can do has transformed people's understanding of police abuse in this country. So it comes with an incredible power, an important power that can change policing for the better, but there's also an incredibly pain involved and how do we balance those two things.

NNAMDIBefore we go, Emily Gunston, are the controversies intrinsic to the way MPD uses these cameras or is there something broader D.C.'s government could do to improve it? Who can fix this?

GUNSTONWell, some of it the Council could fix. The Council could mandate that, for example, that MPD require family members of people, who are killed in the videos to watch them. They also could require supervisors to look at these videos. Currently MPD's policy prohibits the department from randomly viewing videos for the purpose of finding policy violations. Combined with the OPC's restrictions and what they're allowed to investigate that really handcuffs the department and its ability to use these cameras in an effective way. And the Council could address that through legislation.

NNAMDIIn the minute we have left, Christy Lopez, other cities or jurisdictions that you feel handle body cameras well and what do you like about what they do?

LOPEZYeah. So California has a bill that sets in parameters most based on the LAPD's bill that provides more transparency than California has had in decades. That's a good bill. You know, a lot of -- I think what Emily's point is really important that you need to have departments making better use of these. So for training, for supervision, it shouldn't have to get to the point where there's a complaint or an officer involved shooting before you can learn from these videos, and that's I think what -- the opportunity the MPD, like a lot of departments, is really not taking full advantage of.

NNAMDIAnd I'm afraid that's all the time we have. Christy Lopez is an Instructor and Distinguished Visitor from Practice at Georgetown Law. Thank you for joining us. Michael Tobin is the Executive Director of the D.C. Office of Police Complaints. Thank you for joining us, Michael. And Emily Gunston is the Deputy Legal Director for the Washington Lawyers' Committee for Civil Rights and Urban Affairs. Emily Gunston, thank you for joining us. Going to take a short break, when we come back, we'll collectively mourn the impending loss of one of D.C.'s greatest treasures. Here's a hint. It's black, white and fluffy.