The Hidden Pitfalls of Police Video

[W]itnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Indiana makes most government records available to the public for the asking. The law is formally known as the Access to Public Records Act (APRA). Its more famous federal cousin is the Freedom of Information Act (FOIA).  Most public records are, of course, mind-numbingly dull. Using public access laws can lead to strange results. For example, consider Mental Floss’s collection of ridiculous documents obtained through public records requests, which includes an FBI Twitter slang dictionary. I can only imagine how that impacted tweets in the bureau.

@SpecialAgentJones OMG your proposal for this task force had me totes ROTFLOL. #GManProblems.

I’m kidding. This can’t be an actual tweet. It uses the word “your” correctly.

Still, we’ve come to accept that the costs of APRA and FOIA are outweighed by the benefits of public accountability. So whenever someone wants to tinker with public access laws, it’s in our nature to fear that government accountability may suffer.  In that context, some proposed changes to APRA this session in the General Assembly have caused a stir.

Here are the basics of the law as it stands today:

General Rule: Government records are public.

Exception: Agencies have some discretion to decide whether to release certain kinds of records. For example, I.C. 5-14-3-4(b) says that public agencies have the discretion to withhold “investigatory records of law enforcement.”

The law being the law, there are many other exceptions, of course. And even a couple exceptions to this exception–but you get the idea. An agency does not have to disclose an otherwise-public record if it is an “investigatory record.” Although policies can vary, this discretion typically means that videos that are part of an investigation might not be released to the public, or the press, while the investigation is ongoing.

There are good reasons for this. Many videos may show crime victims, who may not want the public attention that comes with a video. Also, witnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Enter House Bill 1019, which would change the law in a few important ways.  First, it creates a new category of document called a “law enforcement recording,” which includes audio and video from body cameras and dashboard cameras.  Next, it creates a special standard for obtaining this video. This is where it gets a little more complicated. The person in the video can make a request and is entitled to see the video, with his attorney, at least twice, but is not allowed to copy it.  Anyone else who wants to see it must file a petition with the court and prove that (1) releasing the video is in the public interest, (2) no one will be harmed, and (3) there will be no “prejudicial effect” on any existing civil or criminal cases.

House Bill 1019 is now the subject scathing editorials in the Indianapolis Star and other papers, which can be a bit misleading.  With titles like “Police camera footage should remain public,” the editorials might lead the casual reader to presume that such videos are completely available to the public under the current law, which isn’t the case. Yes, HB 1019 would alter the way one requests a law enforcement recording, but even under current law, an agency has the discretion not to make such a record available if it’s an investigatory record.

To be sure, not every law enforcement recording will be an investigative record. If a police cruiser captures several hours of a 4th of July parade where no crimes are alleged to have occurred, that video is likely not an investigatory record and would fall under the general rule allowing public access. But let’s face it, if a video is so uneventful that it’s not part of an investigatory record, no news agency is going to be interested in seeing it.

That’s not to say that HB 1019 doesn’t have some problems:

  1. Identification of requesting party. I’ve seen many police videos. Although the quality has improved greatly in the past decade, it’s not always easy to tell who is in a video. The bill creates a scenario where somebody—probably a Sheriff’s Office or Police Department employee—will have to decide whether the person making the request for a video is the person in the video. In many cases, this will be undisputed, but, as the saying goes, “Hard cases make bad law.”
  1. Cost of compliance. The costs of compliance for both law enforcement and those making requests could be significant. These include the cost of supervising someone who has a right to watch a police video because she is in it, and making sure she doesn’t use her smartphone to make a copy; the cost of redacting material that should not be revealed; the costs of making (or opposing) a written petition to a court and meeting nebulous legal standards like “public benefit.”

In an effort to restore additional accountability, some have suggested expanding the permissible requestors of videos to include journalists. This creates a new problem: putting counties, cities, and towns in the position of determining who is—and who is not—a journalist. Do bloggers count or must a brick-and-mortar television studio or printing press be required? The First Amendment does not elevate the free speech rights of journalists above the rights of citizens, and Indiana’s public access laws should not either.

HB 1019 is currently scheduled to be considered by the Senate Judiciary Committee on February 24, 2016.

***

UPDATE: 2/24/2016 – The Senate Judiciary Committee approved the amendment today which would switch the burden of proof to the public agency to withhold the video in any petition to obtain a Law Enforcement Video.

Should States Stop Playing the Marriage License Game?

An Alabama bill proposes a solution to the debate over the definition of marriage that, while not unique, is at least new to modern audiences: get government out of the way. The bill would end the practice of issuing marriage licenses. Instead of government telling you that you may marry, you would tell the government that you have married.

Some will argue that this bill is simply a response to the Supreme Court’s recent gay marriage ruling in Obergefell v. Hodges. They’re not wrong. It’s hard to think that this bill would even exist without the Obergefell case bringing matters to a head. But so what? Legislatures routinely change laws in response to court decisions. Even if some supporting it are motivated by no more than the bitter taste of sour grapes, that’s hardly an argument that the proposal lacks merit.

IMG_1758
What should–and shouldn’t–the state do for the people? (Asheville, NC)

Stephanie Coontz, a professor of history at Evergreen State College has pointed out that marriage without the blessing/permission of government is not a new idea. Not until the 16th Century in Europe did the state take an active role in permitting marriages. Prior to that time the vow–not the law–created marriage. Even marriages that the church considered illicit (an exchange of vows outside the church) were still deemed marriages.  Coontz also notes that American colonies generally required only that marriages be registered. Until the mid-1800’s American States would still allow mere cohabitation as proof of marriage. Indiana continued to recognize common law marriages well into the 1950s.

People willing to leave public comments on the interwebs tend to say not-so-nice things about others as a rule, and opinion about the Alabama proposal was no different. “Stupid,” “1950s social values” and the inevitable comparison to separate drinking fountains dominated a recent comment section of a local news article. One commenter even said that the bill was an attempt to “dehumanize us.”  I assume this meant dehumanize gays, not dehumanize internet comments, which I don’t believe is even possible.

Is it really so surprising that proposed legislation would follow in the wake of such a landmark SCOTUS decision? Courts are not supposed to be active institutions, but reactive ones. Is judicial activism now so commonplace, and legislative complacency so rampant, that when a legislature—the entity actually elected to make changes to the law—engages in activism of its own the populace must cry foul?

*** On a side note, “Judicial activism” as an insult is quickly approaching Red Scare status. At some point after 1990, calling someone a socialist in polite society meant that reasonable people should question the accuser, not the accused. But at least that name-calling could be criticized as one-sided, since a socialist represented a particular political viewpoint, and so his attackers had an opposing view. “Judicial activism” is politically neutral activity in theory (if not in practice), and can apply equally to the substitution of any judicial view for the will of the legislature. But no matter. Like many perfectly accurate phrases before it, it’s sure to be deemed an antiquated, unfashionable dog whistle signaling some evil and unspoken larger meaning–though deciphering the meaning always seems to need a Rosetta Stone of political correctness. Its detractors will be sure to replace it with a slur far a more gentile, if less lucid. I, for one, will lament its complete unavailability at some point in the near future. So long, “Judicial activism,” we hardly knew ye.***

So who are the winners and losers if States start getting out of the marriage business entirely?

For some conservatives, a more passive role for the state may prevent them from choosing between violating their consciences and keeping government jobs. (Though if former IRS chief Lois Learner’s actions are any indication, righties aren’t much welcome as civil servants anyway).  For some liberals, the proposal would give them the freedom they seek, and then some. Not only would any two people be allowed to marry, it would be nearly impossible for the state to regulate how the marriage contract is entered into or who solemnizes it. And despite what an hour of MSNBC or FOX News would suggest, I suspect most gay couples aren’t really interested in using their wedding ceremony as political theater—knowing in their sunset years they will fondly think back on the day they tied the knot, expressed their commitment, and made that redneck probate clerk the subject of some serious HuffPo clickbait. No, for most people, it doesn’t work like that. Non-deranged folks want to marry surrounded by people happy for them, not someone resentful because the bronze bust representing the enduring legacy of Justice Kennedy needed polishing. (Just kidding! There’s no bust. It’s a life-sized Ronaldo-esque statue and on the first Monday each October, it is appeased with sacrifices of clerks from middling law schools.) It’s not sacrilege or lunacy for honest people on all sides to seriously consider removing the appendix of licensing marriages from the corpus of government. What does anyone have to lose?

The casual observer might assume that the Supreme Court’s decision ended the issue, and any further legislation is unhealthy because it keeps us fighting. The Obergefell decision does seem, on its face, to require states provide marriage licenses. However, the Court did not seem to contemplate a State not giving marriage licenses to anybody, but the Due Process implications of providing licenses to some citizens and not others.

Besides, the issue wasn’t even over when it was over. Despite the canard that plural marriages (polygamy) had no logical correlation to the gay marriage issue, such a debate is coming. Chief Justice Roberts anticipated as much in his dissent:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” . . .  why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

In fact, the other shoe has already dropped. Less than a month after Obergefell, a Montana man, Nathan Collier, already voiced his intent to sue if he is denied a marriage license to marry a second wife, a contest he considers his own fight for “marriage equality.” More plural marriage proponents are sure to follow. USA Today recently cited a 2012 survey of 4,000 polyamorous individuals, and 66% reported being open to plural marriage. In the not-too-distant future, a trial judge with a polygamous marriage license application in one hand and Obergefell in the other may have only two choices: invalidate the state’s unconstitutional exclusion of plural marriage folks from marriage licensing requirements, or become . . . a judicial activist. (McCarthyism!)

But there are factions on both sides of the issue that won’t tolerate States bowing out of the marriage license game. Some gay marriage advocates won’t like this at all because it’s not freedom that they’re after. It’s state-sanctioned acceptance. To them, it’s not enough that their relationships merely be allowed. They must be approved. Like the bratty teenager who refuses to simply raid the liquor cabinet the weekend her parents are away, her self-worth demands she badger them with sophomoric rationalizations about why no sane society would restrict a sixteen year-old from downing Mad Dog 20/20 while Mom enjoys her after-dinner sherry.  Dad eventually gives in, though more from battle fatigue than persuasion. Her victory parade is complete when she boasts to her friends that she convinced her parents to finally see the righteousness of her cause.

Likewise, some gay marriage opponents will also oppose the new proposal. They remain committed to believing that official legal rejection of gay marriage is the only acceptable answer, however diminishing its chances. If the state licensing requirement disappears entirely, the clock will have run out on their cause, and the scoreboard’s tally is not in their favor.

For these loudest voices in the echo chamber, social reformation must trump personal freedom, for social reform cannot be a private affair. For them, the Alabama bill must be opposed. Angered at the prospect of winning without continuing the fight, (or losing without a rematch) their identity depends on dragging their opponent back onto the field for humiliation. No, this proposal just won’t do. The contest for marriage equality cannot be won by forfeit.

Finally, to libertarians, this may be a panacea. Imagine what society could do if government could just get out of the business of moralizing and back to legalizing weed. Wait–on second thought, forget libertarians. Maybe we should let the adults continue the conversation.

To Tailgate or Legislate? That is the Question.

Rep. Dave Ober of Albion, Indiana, has proposed language be added to a motor vehicle bill at the General Assembly this week that would clarify the responsibility of drivers not to lollygag in the passing lane. Including police authority to ticket a slow driver. That’s a ticket for not letting someone pass you fast enough. Pardon me while I assume the get-off-my-lawn cranky old guy stance.

When I learned the rules of the road, a slow poke in the passing lane was irritating, but not so problematic that police action was necessary. Slow-laners suffered from a lack of social awareness, a form of bad manners. Like cousin Billy with his elbows on the table, these folks needed education in the customs of polite society. Pulling up behind a Sunday Driver so that you occupied most of his rear-view mirror politely signaled the desire to pass. This reminded him–kindly, but firmly–that the passing lane has a purpose.  In rare circumstances where we needed a more noticeable signal, a quick flash of the headlights would catch his eye and bring the point home.

Alas, gentle social rules of the road seem to be giving way to the long arm of the law. It’s a measure of how much abrasiveness society tolerates that we eschew subtle Emily Post-style methods of communication with fellow drivers in favor of Tony Stewart bluntness. Instead of whispering suggested behavior, we scream for it. Instead of leading with the carrot, we raise the stick of punishment.

Ticketing our way to an open road?
Ticketing our way to an open road?

While police officers certainly must pursue both dangerous (speeding) and criminal (drunk driving) activity, behavior that is merely impolite should stay outside the scope of an officer’s duties. The use of police to get slow-movers out of the passing lane certainly risks overburdening police with trivial matters. One lawmaker supporting the amendment admitted that it was a “pet peeve” to be behind slow drivers in the passing lane, which is a pretty low standard for lawmaking.

Ticketing slow passing lane drivers would subvert cooperation in favor or rule-enforcement. There is a reason you’ve never seen a zebra-clad referee on the fairway of the 18th hole. That’s not to say golf has no rules. But golf rules are meant to be self-enforced. And like the passing lane slowpoke, a golf cheat is either an ignorant doofus, a cad, or a bit of both. Either way, dealing with him is everybody’s job, and outsourcing it would change the nature of golf. Likewise, Ober’s amendment would change the nature of road rules, at least at the margins, pushing more undesirable behavior from irksome to illegal, thereby leaving us with less to do corporately, socially.

It used to be considered a sign of patience–even inner strength–to tolerate boorish, impolite behavior. Not “tolerate” in the modern sense. Modern toleration is unfettered celebration, the way one must tolerate being handed a revolting craft beer because he’s too chicken to say out loud that pumpkin, cinnamon, and nutmeg just don’t make good dance partners inside a beer. Rather, tolerate in the sense that being able to endure the ill-treatment of others without ruin (to us) or retaliation (to them) makes us better people. What grandad called “building character.” But building character is hard and takes time. Think of the time I could save if only cops could fix all my pet peeves:

Somebody in the slow lane is in my way. It’s the skinny pedal on the right, Einstein!

That moron is writing a check for groceries and digging around for coupons. They are just groceries, lady!

This idiot in front of me is actually reading the McDonald’s menu–it’s the same at every McDonald’s, buddy, stop wasting my time!

Driving has become an inherently social activity. We spend more time interacting with each other as fellow drivers than we do as fellow neighbors, shoppers, sports fans, or church-goers. Even though it’s not deep interaction, it is frequent. Several times each day, we trust our safety to others, communicating through turn signals, head nods, speed variations, and hand gestures–some more expressive than others. We acknowledge both approval and disapproval in the way others drive, and those expressions are not invalid simply because they are not enshrined into law. The law is not the sole method by which society approves or disapproves of behavior, and there’s an argument to be made that it is not the most effective method, either. Each time we add to the law’s burden by banning behavior which is merely rude or inconsiderate, it’s a sign (and perhaps a reason) that we have given up influencing better behavior ourselves.

 

When I Want Your Opinion, I’ll Give it to You.

I’m all for a law that bans annoyances, as long as I get to decide what’s annoying.

Last week, Grand Rapids, Michigan made news by repealing its “annoying” law.  That is, the law that made it illegal to be annoying, not that the law itself was annoying.  But then I suppose it would have been annoying for anyone prosecuted under the law.  The City attorney thought the law was unworkable, and she was right. Subjective standards tend to work about as well in courts as they do anyplace else, which is to say, not well at all.

NFL Fan: “Wait a minute, he caught that ball!”

NFL Rules Nazi: “No, he has to make a ‘football move’ after he catches it.”

NFL Fan: “What the heck is a ‘football move’!?  He has to bring a handgun to a nightclub before it’s a catch?  That seems arbitrary.”

Not that annoying behavior should be condoned in a civilized society. I’m all for a law that bans annoyances, as long as I get to decide what’s annoying.  To that end, I would humbly suggest the following behavior as falling well within any legal definition of “annoying”:

1.    Using the word literally in a way that demonstrates you clearly do not know what the word means.
2.    Selfies. Because friends don’t let friends hold their own cameras.
3.    Air quotes.
4.    Commenting on someone’s Facebook status about yourself. That’s what your status update is for.
5.    Refusing to make a McGriddle at 10:35 A.M. It’s only 10:35, lady!.
6.    Claiming in public to have “moves like Jagger” without, in fact, having moves like Jagger.
7.    Using the term “hashtag” out loud in everyday conversation.
8.    Kale.
9.    Pretending any of the following are words in the English language: guestimate, irreguardless, ginormous, or (my new personal favorite), flustrated.

But since nobody made me the benevolent dictator today, I’ll have to have a somewhat smaller role in shaping laws–a single vote among many.  And as long as Americans run a representative democracy, laws will reflect society’s values, albeit imperfectly.  Like a fun-house mirror, there are always some distortions.

Why must everyone be so annoying?
Why is everyone so annoying? There should be a law.

American history in general, and its legislative history in particular, is a mish-mash of discarded experiments that we recall with equal parts nostalgia and embarrassment–like looking back at a high school yearbook. 

I can’t believe that mullet I had!

I should’ve been better friends to that guy.

Did he really wear MC Hammer pants to the homecoming dance?

Sometimes our law-making past can seem unfathomable in the harsh light of the present day. The 18th Amendment, passed in 1919, ushered in an era of Prohibition. Not because the tiny but powerful minority of interests represented in the cabal of Big Tea wanted it that way, but because many Americans wanted it that way. While Prohibition is widely considered a failure because so many people circumvented the law, and because it likely contributed to crime rates, it did not fail to represent the will of many Americans.  By the same token, its repeal by the 21st Amendment was also a fair representation of the views on alcohol over a decade later. Sometimes law-making demonstrates how fickle we are.  Or how flexible we are, depending on whether one considers it a vice or a virtue.

Sometimes the rear view mirror of law-making presents a lesson about culture.  Blue laws, such as the ban on the sale of automobiles on Sunday in Indiana, suggest a time before religious convictions were deemed categorically ineligible as a basis for expressing public opinion.  Sometimes, it’s a lesson about shame.  Many parents in the last thirty years have awkwardly explained to their kids why some Americans had separate lunch counters in the later half of the twentieth century.

There’s nothing unpatriotic about hindsight that brings regret. It’s part of maturation. But let’s regret our decisions, not our freedom to make them.  Most places on earth only know laws through the eye of the despot, or the boot of his will. If you think a law that bans annoying behavior is subjective, then imagine the cruel arbitrary nature of laws selected by just one person–instead of the representatives of two-hundred and fifty million.  Imagine every law, rule, or regulation coming down to the personal preference of the one with the most guns. Or oil. Or food. Now that’s arbitrary. But for most of the world’s inhabitants, that’s reality.

A couple of years back, the UK magazine The Telegraph ranked the world’s worst cities to live in.  The dubious honor of making the top ten went to such Shangri-La destinations as: Tehran (Iran); Tripoli (Libya); and Harare (Zimbabwe).  I can only assume that Pyongyang (N. Korea) didn’t make the list because the Telegraph figured that having Dennis Rodman as a semi-permanent house guest was punishment enough and they didn’t want to pile-on.  It’s no coincidence that the arbitrary law-making process in despotic regimes produces oppression and misery.

Democratic law-making is no guarantee of success, but it has the capacity for self-correction and it shields against impulsive laws.  Something tells me that Kim Jong-Un could make a law requiring everyone to wear REO Speedwagon muscle shirts on Tuesdays and still nobody would call him out.

I know if that happened here, I would be very, very flustrated.