Comment   |   Volume 166, Issue 4

A Municipal Speech Claim Against Body Camera Video Restrictions

By
166 U. Pa. L. Rev. 961 (2018)

April 2018












This Comment describes one approach to securing public access to the data collected by police‐worn body cameras (PWBC). Ever since the rapid expansion of body camera programs following highly publicized police shootings (particularly the shooting of Michael Brown in Ferguson, Missouri, in the summer of 2014), state legislatures across the country have rushed to decide who should have access to the collected video and how to limit its public release. Over half of the major police departments across the country are using body cameras supplied by a single manufacturer alone, and the storage and release of the video is an urgent issue. The patchwork of laws governing the disclosure of PWBC data has left the public without simple or consistent means of accessing that information.

Every state except New Hampshire exempts police records from public records requests. Many laws which explicitly address the release of PWBC data either grant disclosure discretion to a custodian or a judge, or they prohibit release entirely, absent special circumstances. The myriad restrictions on public access has stymied the avowed purpose of implementing body camera programs: to increase the transparency and public accountability of police practices.

The goal of fostering transparency to improve community relations would be more easily achieved if local governments and police departments, in the exercise of their discretion over local affairs, could publicly release video of contested police encounters without prior restraint. Some police departments seek to do just that, either in situations of suspected unwarranted police violence or matters of national importance. For example, in October of 2017 the Las Vegas Police Department publicly released a compilation of PWBC footage only two days after the worst mass shooting in U.S. history took place. Localities may seek to do so when it would improve community relations, inform public debate of police practices, and educate residents so they can effectively participate in the process of self‐government. However, state statutes may prevent localities from securing these benefits for their citizens.

In this Comment, I argue that state laws which restrict disclosure of PWBC data by municipal governments run afoul of the First Amendment’s Free Speech Clause and are subject to constitutional challenge by the municipalities themselves.

A Municipal Speech Claim Against Body Camera Video Restrictions - PennLawReview.com

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