Death of L.A. teen at hands of cops was caught on tape. But refusal to release video has some questioning policies, use nationwide.

By Peter Bibring and Catherine Wagner

The following article was first published in USA Today.

Earlier this month, a too familiar tragedy unfolded in East Los Angeles when Los Angeles police officers shot and killed 14-year-old Jesse Romero. Witness accounts vary — the police department says Romero fled when officers approached him on suspicion of scrawling graffiti in his neighborhood, then fired at officers. Some civilians say he had a gun but tossed it away.

As is increasingly common, the incident was captured on officers’ body cameras.

Los Angeles officials have touted body cameras as a way to provide transparency and accountability and build trust between police and the public in moments of crisis. But that’s not how it has played out because the LAPD’s policies for body cameras don’t provide transparency or assure the public that officers will be held accountable.

Instead, the department has stated that it generally holds videos from public viewunless ordered by a court to release them. Romero's family has called for the footage to be released.

According to LAPD policy, officers are able to review body cam footage before talking to investigators. Instead of promoting transparency and trust, LAPD’s body camera program has resulted in more questions than answers.

When body cameras were proposed nationwide, there seemed to be wide agreement they could be a game-changer for police interactions, oversight and community relations. Public support has been through the roof. And body cameras have provided important evidence in at least some of the rare decisions to fire or criminally charge officers for shootings or dishonesty.   But as departments put cameras on the streets, the evidence of their effectiveness has been much more mixed. An early study of the small police force in Rialto, Calif., found that officers wearing cameras are much less likely to use force or to be subject to complaints from civilians.

But other studies are far less conclusive, with at least one showing an increase in the use of lower-level force, and another that use of force increases when officers have more discretion over when to activate cameras. Against this ambiguous backdrop, police reform advocates have raised concerns about the cameras’ privacy implications, surveillance potential and susceptibility to misuse.

Despite these questions, departments nationwide are moving to adopt body cameras. It is vital that those departments have strong policies that ensure cameras are used for accountability, not surveillance.

Departments must clearly require officers to record every investigative interaction with a member of the public. While constant recording could risk civilians’ and officers’ privacy, departments can — and must — monitor compliance and discipline those who fail to record when they should. Officers who repeatedly fail to record incidents should be identified and corrected — or fired — long before they’re involved in a serious incident.

When there’s a shooting or other investigation, policies must require officers to give initial accounts of what happened and why they acted as they did before watching the body camera video. Seeing the video allows cops who are inclined to lie to tailor their story to the evidence. Even for officers who try to tell the truth, seeing the video will impact how they remember an incident. What helps investigators piece together the whole truth is the officers’ subjective memory of what they thought at the time. The police don’t let other witnesses watch the video of a shooting before providing a statement, or show other suspects the evidence in a case before interviewing them. Police shouldn’t have such an advantage.

Video of shootings and other potential misconduct must be released, pursuant to policies that ensure they don’t just get out when it helps the officers. Transparency allows the public to judge for themselves whether police are acting in keeping with a community’s values, and whether the institutions charged with holding officers accountable are working.

Finally, departments should clearly prohibit use of body cameras as surveillance tools. Video shouldn’t be accessed unless there’s reason to think it contains evidence of crime or misconduct, and data-mining tools such as facial recognition mustn’t be used on the video. Moreover, strict limits should be placed on how long footage is retained. The public supports body cameras as tools for police accountability.  Mission creep into surveillance should be stopped at the outset.

The policies that govern the use of body cameras matter. Sadly, a recent study shows many departments’ policies are seriously flawed, if they have any public policy on the cameras at all. This can and must be fixed.

Body cameras will never be a cure-all for police misconduct or the crisis of confidence in law enforcement that many of us feel. But if they are to be any help at all — and they could be — they must be done right.

Peter Bibring is director of police practices and senior staff attorney at the ACLU of SoCal; Catherine Wagner is staff attorney at the ACLU SoCal.

By Jessica Cobb

New students are required to fill out an application, write a letter of intent, supply two references, attend a scheduled interview, and submit their registration packet with transcripts prior to beginning enrollment.

These instructions would not raise eyebrows if they were found on a college admissions webpage or a brochure from an elite private academy. But this policy is posted on the website of a public school in California – Delta Charter High School in Aptos – and it violates the mission of charter schools.

When charter operators open their schools, they make a promise that every child who wants to attend will have an equal chance of getting in. Indeed, that promise is required by law. But a review of charter school websites by the ACLU of Southern California (ACLU SoCal) and Public Advocates, Inc. (Public Advocates) uncovered hundreds of charter schools throughout the state that erect barriers to enrollment that keep out vulnerable students.

That’s a direct violation of the public trust and the 1992 state law that created charter schools. In California, charters are public schools, which receive public funding. These schools are granted more flexibility in developing their educational programs, but they still must comply with many rules, including the requirement that they admit all students who wish to attend. As the legislature made clear when it created the charter system, the purpose of these schools is to “increase learning opportunities for all pupils, with special emphasis on expanded learning experiences for pupils who are identified as academically low achieving.”

Yet many California charter schools are breaking their promises. The review by ACLU SoCal and Public Advocates found 253 charter schools with enrollment policies or forms posted online that are illegal or exclusionary. And these are only the violations that schools posted online; many other schools may maintain similar prohibited policies or practices that are hidden from the public view.

The review found that some charters “skim the cream” from nearby traditional public schools, selecting high achievers for enrollment through academic admissions requirements and pre-enrollment essays and interviews. Others shirk their duty to support English learners through pre-enrollment English-language proficiency requirements and requests for citizenship documents that discourage applications from undocumented children. Still others weed out certain families by requiring mandatory “volunteer” hours or by allowing volunteer “buyouts” through monetary donations.

These policies are rigged against the students who already face the most disadvantages. A boy who is raised in foster care may have no one to attend a parent pre-enrollment interview or fulfill family volunteer hours. A girl who translates for her immigrant parents may score below passing on an English-language test or struggle to write an essay that conveys her potential. Yet these children are no less deserving of educational opportunity than any others.

Like any other public school, by law, charters may not discourage or prevent students from enrolling based on income, national origin, academic performance, parent involvement, immigration status, language proficiency, or any other factor. If they have more applicants than spaces, they may choose students only through a fair, unbiased lottery or, in some limited circumstances, by the neighborhood where the student lives.

The California legislature put these rules into place because a free, quality, public education is a moral and legal guarantee. When charter operators create policies that discourage or deny enrollment, they betray not only particular students but also all Californians who are invested in the future of our state.

Jessica Cobb is legal intern at ACLU of Southern California.

The growing problem of police violence and public mistrust in law enforcement isn’t a breakdown of policing but of democracy.

The secrecy and immunity that shield police officers from scrutiny and liability are products of democratic policymaking. They haven’t been imposed extra-legally; they were enacted through state legislatures and embedded in state law. It is state law that sets the terms of transparency and accountability, mandating what information the public may have about police officers and establishing the extent to which the police may be held accountable for misuse of the immense powers the public grants them.

Some might pinpoint the breakdown in terms of the majority’s disregard for the rights and interests of others and specifically people of color. On this view, the policies that have been enacted and the abuses that have resulted from them – the racial disparities in stops, detentions, searches, arrests and uses of force; the failure to indict and convict officers for breaking the law; and the failure to use special prosecutors in cases of police misconduct; etc. – reflect precisely what the electorate, or at least a majority of it, wants to see.

This view makes the critical assumption that public opinion translates necessarily and directly into public policy. But how true is that assumption? It certainly doesn’t hold true when it comes to gun control – the public overwhelmingly supports universal background checks for all gun buyers and solidly supports a nationwide ban on the sale of assault weapons – nor does it work with respect to policing.

Consider what policing reforms California voters want and what their elected representatives provide them.

Last year, the ACLU of California released the results of statewide polling on policing reforms. Those results amply demonstrated that California voters want transparency regarding police misconduct:

• 84% favored requiring police officers to wear body cameras, and 74% endorsed public access to video captured by those cameras when an officer stands accused of misconduct.
• 79% said that if police officers have been found to have engaged in misconduct, the public should have access to information from the investigations, with nearly two-thirds (64%) supporting public access whenever an officer is accused of misconduct.

The level of consensus shown by these results is significant and should not be glossed over. While polls consistently find stark disparities in how people of different races and ethnicities view police and assess police violence, and although politics has become highly polarized and fiercely partisan, the strong support for increased transparency carried across racial, ethnic and political party lines. For instance, full public disclosure of police misconduct investigations garnered support from more than nine in ten African American voters (91%), five out of six Latino and Asian voters (84%), and over three-quarters of white voters (76%), as well as nearly nine in ten Democrats (87%), almost four out of five independents (78%) and two-thirds of Republicans (67%).

Yet, despite enjoying such widespread and overwhelming support, these reforms have not been enacted, and this isn’t likely to change any time soon. Last year the bills relating to body cam video by and large attempted to prohibit rather that permit public access – those bills fortunately were defeated, but that left police departments, like the LAPD, free to adopt policies that seek to ensure the public never sees video from body cams. And this year a bill with a bipartisan list of authors (SB 1286) – which would have given the public some access to police discipline records – failed to make it out of the appropriations committee, or even get a hearing in appropriations.

So why isn’t public opinion enough – why are California politicians doing or attempting to do the exact opposite of what the public wants? It’s because the police lobby wields an inordinate amount of power, and too few politicians are willing to challenge it. The efforts to make body cam video and investigations into police misconduct accessible to the public – and seemingly all major police reforms – have been vehemently opposed by police unions and law enforcement organizations, which work excessively to promote secrecy and avoid scrutiny and criticism. So long as politicians are unwilling to legislate in the public interest and risk the criticism and reprisals of the police lobby, the state legislature will remain captured by and captive to the very agencies it should be regulating on behalf of the public. There’s been so much talk this election season about rigged our political system is, but this has received no attention.

What can be done? We have to forget what we were taught as children on Schoolhouse Rock about how a bill becomes law – it takes much more than a good idea and a call to your elected official. We must recognize that law enforcement is one of the most aggressive special interests in politics, and we must be just as organized, focused, and assertive, pulling on every lever of influence and power at our disposal to neutralize if not overcome the outsized power of the police lobby to block the reform we all know we need.

It’s not enough to support or favor police reform; we must demand it. We need to let politicians know – through letters, phone calls, email and faxes as well as visits to and pickets of their offices and ultimately at the polls – that there is a price to pay for failing to enact police reform, and we must be willing to make them pay it.

Hector Villagra is executive director of the ACLU of Southern California. Follow Hector on Twitter.