News & Commentary

If there were ever a moment for police body cameras to prove their worth, this month’s protests against police violence should be it. Instead, the protests are revealing the technology’s limitations even as numerous voices call for expanding cameras, including local political leaders from both parties, civil rights groups, public defenders, protesters, and Democratic congressional leaders. Polls, meanwhile, find very high public support for body cameras.   But reform advocates should not simply demand hardware. If they want police in their community to wear body cameras, they should demand effective body camera programs, which include not just cameras but also strong policies and institutional practices to make those cameras effective. They should ask themselves whether their department will — or can effectively be compelled to — actually comply with and enforce good policies (preferably enshrined in law) and practices that will ensure that the cameras provide transparency and oversight and don’t become simply surveillance devices.   After the shooting of Michael Brown in Ferguson, Missouri and the protests that erupted in its wake, many reformers looked to police body cameras as a critical component of holding police accountable for excessive force abuses. It seemed plausible that the cameras would deter or at least capture evidence of abuses. At a time when the proliferation of bystander videos was increasing awareness of police abuse among many Americans, forcing police to record their own actions seemed like it would improve police behavior and help bring justice when it didn’t.   But in the years since, it has become clear that the same impunity from oversight that has given so many officers the feeling that they can break the law — even when being filmed by bystanders — has often rendered body cameras ineffective. While there have been many problems with how body cameras have been implemented (which we attempted to forestall through the body camera policies recommended in our model legislation), the two biggest problems are officers failing to record, and departments refusing to release footage that is recorded.   Officers turning off cameras Body cameras do nothing if they’re not turned on when they should be. There have been too many reports — during the George Floyd protests and before — of police officers failing to record their interactions with the public. The mayor of Chicago cited such failures during the protests, for example, threatening punishment against officers for not recording. There have been many similar reports in New York and other cities. In Louisville, the police chief was fired because officers who killed a man didn’t have their cameras on.   This has been a persistent problem since the advent of body cameras. As we have said following prior incidents, police departments need strong, non-discretionary policies that make crystal clear to line officers that they are expected to start filming at the initiation of any law enforcement encounter. And departments need to effectively enforce those policies — something that has clearly been lacking in many departments.   We have also called for a presumption against officers in litigation in cases where police should possess body camera footage but don’t (whether because it was never recorded or because it has mysteriously disappeared). Criminal defendants who reasonably claim that exculpatory evidence was not captured when it should have been, or civil plaintiffs suing the government, should have a rebuttable evidentiary presumption in their favor in such cases — in other words, a starting assumption that their claims are correct. Courts should also provide jury instructions that empower juries to discount or disregard police officer testimony when body camera footage should be available but isn’t. Body cameras raise significant privacy concerns, and there are sensitive questions around when police should turn on their body cameras during protests. We don’t want police to use the cameras to collect video of peaceful protesters, which could chill the freedom people should feel to exercise their First Amendment rights. Indeed, we recommend — and many local policies include — provisions barring the police from recording events such as peaceful protest marches. This has created confusion during events such as the George Floyd protests, which consist of mostly peaceful marches that sometimes include violent police-citizen interactions.   But while there may be some gray areas, it really shouldn’t be that hard. If the police are observing peaceful marchers, they don’t need to record. If they decide they need to assert their authority or engage in a law enforcement action of any kind, their cameras should be turned on. Certainly there is zero excuse for police officers failing to record when they are wielding batons or poisonous chemicals against protesters.   Departments refusing to make footage public Another crucial element of an effective body camera program is taking away police department control over the video that body cameras capture. If police departments have discretion over what video footage to release or not release, they (like all bureaucracies) will have a powerful urge to use that power to protect themselves instead of serving the public interest. When police have discretion to release the videos they want, departments often end up releasing the ones that make them look good while withholding the ones that don’t — transforming body cameras from an accountability tool into a propaganda tool.                              In Boston, for example, police are refusing to release bodycam footage of recent protests, citing the excuse of “ongoing investigations” — which, as we have explained, in no way justifies withholding footage. In Minnesota, incredibly, footage from the body cameras worn by the officer who killed George Floyd and the officers who were with him has still not been made public. An exception was footage from a Minneapolis Park Police officer who was not directly at the scene, which was only released by that police branch “in an apparent effort to clear the department of being directly involved in the incident.” In a shooting in Louisiana, the authorities showed body camera footage to reporters, but didn’t release it to the public.   These patterns of arbitrary, inconsistent, and self-interested releases of footage highlight the problem. Not only should police be releasing body camera footage of critical incidents and those that gave rise to complaints, but it should not be up to them to decide. Where there is a public interest in seeing how police officers are enforcing the law, law enforcement should be required to turn video footage over to the public (with all other footage protected for privacy purposes). That certainly includes video of police enforcement actions during racial justice marches.   Some cities have reacted to the pressure from protests by improving their policies, but the public should assume that most police departments will relinquish control over video only very reluctantly. In Washington, D.C., where the police have long stubbornly refused to release bodycam footage even in cases that spark significant public outcry, the D.C. Council passed temporary emergency legislation requiring release of footage, but restricted to cases of “death or serious use of force.” If an officer walks up and clubs a peaceful protester, but doesn’t cause an injury the police define as “serious,” they might refuse to release the bodycam video. Similarly, in New York the mayor recently announced a new policy under which the NYPD will release within 30 days video of officers using force that results in “death or serious physical injury.” That policy, however, also leaves the NYPD with far too much discretion.   Beyond the hardware Some reformers seem too optimistic about the degree to which body camera footage can resolve questions around police use of force. It’s important to remember that like all cameras, bodycams can provide distorted views of incidents and are not an “objective” record of what takes place. Even when all policies are followed, recordings can sometimes be manipulated by officers and provide distorted views of events. They are, however, an independent record that, once captured, does not morph and meld the way human stories and memory can, and is certainly better than solely depending on the word of officers.   We’re living in a moment of new possibility for police reform. Those who see body cameras as part of the solution should make sure to push not just for the hardware, but for policies that will make them work for the public.

For activists across the country who have taken to the streets to demand racial justice and police accountability, the sound of protest has been not just the sound of chants, but the sound of helicopters. For many police departments, these protests have been an occasion to bring out all their high-tech toys, and those include surveillance aircraft, ranging from police helicopters to fixed-wing surveillance aircraft to drones. Like all expensive law enforcement practices, police aerial surveillance should be questioned and reevaluated as part of a broader historic legal battle over the program is now underway as the result of an ACLU legal challenge.   The FBI also regularly flies “a small air force” of surveillance aircraft above American cities — including over protest marches such as those in Ferguson, Missouri and in Baltimore following the 2015 death of Freddie Gray in police custody. The planes are typically registered to front companies to hide their identities as government planes. In addition to the CBP drone in Minneapolis, the Department of Homeland Security deployed piloted surveillance aircraft over George Floyd protests in Washington, D.C. and 13 other cities, sending video to a centralized CBP facility, letting federal agents view live aerial footage on their phones, and storing the footage for potential use in criminal investigations.   Ultimately, the answer is for communities — and the federal government — to put in place strong privacy protections that apply equally to drones and piloted aircraft.   Today, police helicopters — which first appeared in the late 1940s — have become a well-established law enforcement tool in many cities. Police helicopters and fixed wing aircraft are used for a variety of purposes including patrol, pursuit, search and rescue, and surveillance.   But police helicopters are also used to intimidate through a militaristic display of raw power. That role was epitomized by the use of a military Blackhawk helicopter last week to disperse peaceful racial justice protesters in Washington, D.C. by hovering low over a street, creating wind gusts strong enough to snap tree limbs. Experts call this tactic a “show of force” and say it’s a common military tactic to “intimidate and remind potential enemies of your armed presence.”   Beyond such a clearly abusive deployment, however, even civilian police helicopters can have a similar effect. Police helicopters — many of which are military surplus aircraft — are large, loud machines, heavily associated with military weaponry and which, by virtue of their position in the sky, signify surveillance, dominance, and control. In at least some places they are consciously used by police for the purpose of deterring crime — which might sound like a good thing until you pause to reflect that they do so by making all residents of certain neighborhoods feel as though they are being watched by an overpowering occupying force. And those neighborhoods aren’t affluent white ones.   American communities should take a hard look at their police departments’ aerial surveillance programs as part of an overall reassessment and

Early this year, Detroit police arrested Robert Williams — a Black man living in a Detroit suburb — on his front lawn in front of his wife and two little daughters (ages 2 and 5). Robert was hauled off and locked up for nearly 30 hours. His crime? Face recognition software owned by Michigan State Police told the cops that Robert Williams was the watch thief they were on the hunt for.   There was just one problem: Face recognition technology can’t tell Black people apart. That includes Robert Williams, whose only thing in common with the suspect caught by the watch shop’s surveillance feed is that they are both large-framed Black men.

In January, Michigan resident Robert Williams was arrested for shoplifting from a watch store in downtown Detroit a year ago—a

COVID-19 has ripped through nursing homes, psychiatric hospitals, and other congregate settings for people with disabilities. People living in these settings make up less than 1 percent of the U.S. population, but nearly 50 percent of COVID-19 deaths.   Some have said these deaths are inevitable. Some have even called for “weeding out the weak” as part of herd mentality. But these deaths are far from inevitable. They arise from decades of indifference, invisibility, and deadly discrimination against the people who live and work in these settings. They also arise from our government’s abdication of its responsibility to regulate and monitor these segregated institutions.     Congregate settings for people with disabilities include nursing homes, psychiatric facilities, and intermediate care facilities for people with developmental and intellectual disabilities. Long before COVID-19, these facilities already had a poor track record with insufficient oversight, poor infection control, under-staffing, and inadequate training. Combined, these conditions created the powder keg. COVID-19 lit the match.     How has this happened? This is the first in a series of ACLU blogs addressing this crisis, in which we will break down the causes at the institutional level and the personal effect on individuals such as staff and residents. The focus today is on the U.S. Department of Health and Human Services (HHS), and its agency, the Centers for Medicaid and Medicare Services (CMS). Together, HHS and CMS are charged with regulating and monitoring the vast majority of the institutions where we have warehoused people with disabilities. HHS is responsible for the primary funding and for ensuring the safety of people in these facilities. And it has failed miserably in the age of COVID-19.    On January 31, 2020, HHS declared a national public health emergency to respond to COVID-19. As a primary response to the pandemic, all of our medical and political leaders demanded social distancing. We closed schools and dormitories, required employees to work from home, and shuttered bars, restaurants, and ball parks. But we did not extend this disease prevention tactic to nursing homes, psychiatric hospitals, and developmental disability facilities. In fact, HHS has done the opposite. It has instructed nursing homes to take new patients without first confirming that they are not infected with COVID-19, and it has waived regulations to help divert people from entering institutions.   HHS has mechanisms at its disposal to reduce the overcrowding and dangerous conditions in these institutions. It can increase its funding for Home and Community Based Services and community mental health services, so people can stay in their own homes to get support. It can encourage states to advertise a provision allowing family members — so many of whom are sheltering in place without work — to take their relatives out of nursing homes and get paid to provide their care. And, it could increase the discharged planning process to move those who wish to be back in the community to move there. But it has failed on all counts.   HHS also has obligations to step up infection control and safety for the people who cannot yet leave these institutions. But it has not required states to prioritize personal protective equipment (PPE) or testing for staff or residents, and it has failed to increase the consequences for facilities that violate infection prevention measures. As a result, these institutions, rather than being havens from infection, are ‘death pits’ — among the most dangerous places in the country during this pandemic.   And finally, HHS should provide transparency, so that individuals and families can decide for themselves whether to enter — or stay — in an institution. Instead, more than four months passed before HHS started to require nursing homes to publicly report COVID-19 infection and death rates. And even this is incomplete — as nursing homes can choose not to report deaths before May 6, and other congregate settings — such as psychiatric hospitals, group homes, and institutions for people with intellectual and developmental disabilities — have no reporting obligations at all.    Yesterday marked the twenty-first anniversary of Olmstead v. L.C., the landmark Supreme Court decision that recognized that “unjustified institutional isolation of persons with disabilities is a form of discrimination.” The court went on to observe that institutional confinement limits every part of a person’s life, and that such confinement “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”   Today, we filed a petition calling on HHS and its agencies to meet their obligations under Olmstead and under federal law. We are asking HHS to get people out of institutions as quickly and safely as possible, to provide genuine infection prevention and control measures for those who remain, and to provide true transparency as to who is living, working, and dying in these institutions.    HHS must respond. Collectively, we have much more to do. As a society, we must reckon with our relentless marginalization and de-prioritization of people with disabilities and the people who support them. We must look at the tens of thousands of deaths inside congregate care settings as a collective, systemic tragedy. These victims of COVID-19 are mothers, fathers, brothers, sisters, grandmothers, grandfathers — all of us. We must end the disregard and discrimination that took their lives and that threatens — if we do not act quickly — to take many more.

When Kishon McDonald saw the video of George Floyd’s murder at the hands of four officers from the Minneapolis Police Department, he could tell it was going to turn the country upside down.   “I knew it was going to catch fire,” he said.   McDonald, a former sailor in the U.S. Navy, watched over the following days as demonstrations against police brutality spread from Minneapolis to cities and towns across the country, eventually reaching Washington, D.C., where he lived.   On June 1, he heard that people were planning to peacefully gather at Lafayette Square, a small park directly across from the White House, and decided to join them. By then, police had begun to attack and beat demonstrators in Minneapolis, New York, and others in states everywhere, escalating tensions as smaller groups broke into shops and set fire to police cars.   But when McDonald arrived at Lafayette Square, he found a crowd of a few thousand people cheering, chanting slogans, and listening to speeches. Washington D.C. Mayor Muriel Bowser had imposed a 7 p.m. curfew after clashes the night before, but that was still an hour away.   “Everybody there was like, it’s alright, we’re going to be here until 7 o’clock,” he said. “It was a very good energy.”   It wouldn’t be long before that would change.

Every time another Black person is murdered by the police, it’s easy to point to a single officer as the culprit. George Floyd was killed under the knee of officer Derek Chauvin — we saw it ourselves. But Chauvin is just one officer in a culture of police violence, and policing is just one of the systems responsible for taking Black lives. COVID-19 exposed a number of the others.   It’s no coincidence that Black people, who are more likely to be killed by the police, are also dying at disproportionate rates of COVID-19. While some say it’s due to the prevalence of underlying health issues like diabetes and high blood pressure in the Black community, the conversation doesn’t end there, and pointing a finger at these conditions misses the bigger picture. We need to ask ourselves — how did we end up here?   The Black community is not inherently vulnerable to COVID-19. We’ve been made vulnerable through decades of unequal access to health care. We are made vulnerable every time a doctor or other health care provider dismisses us because they don’t believe our symptoms. We are made vulnerable through over-policing, which has led to not only our murders, but to our overrepresentation in jails and prisons, where the virus is spreading rapidly and has already killed hundreds. Even though public health experts have warned of the severe risk that incarcerated people face due to the conditions they live in, most have been left to languish as COVID-19 threatens to turn their detention into a death sentence.   In fact, jails and prisons are where multiple systemic failings that take Black lives converge — over-policing, over-incarceration, inadequate health care, and the deadly result.   When we say Black Lives Matter, we’re talking about more than police brutality. We’re talking about incarceration, health care, housing, education, and economics — all the different components of a broader system that has created the reality we see today, where Black people are incarcerated at more than five times the rate of white people, where Black people are given harsher sentences for the same offenses, where Black people are more likely to be held on bail pretrial, and where Black people are dying not only at the hands of police, but because of an unequal health care system. Black lives should matter in all stages of life — and to honor that truth, we must radically transform the system from its roots.   Systemic problems aren’t easy to fix, but we can take steps toward progress by re-examining the way we fund and rely on law enforcement in this country. A huge amount of public resources are put toward law enforcement agencies, at the expense of critical social services like education and health care. This doesn’t make us safer. It puts Black lives in danger of police brutality and of getting ensnared in the mass incarceration system. More law enforcement is not the answer. It’s what got us here in the first place.   Our culture of law enforcement puts the police in places they don’t need to be. Police don’t have to be the first responders to all crises, and they shouldn’t be. Social workers, doctors, and others can serve in place of police for issues including mental health crises, domestic violence, addiction, and homelessness. However, to create this reality we need to de-prioritize law enforcement — and cutting funding is a good start. Lawmakers should divert funding for police departments and put it to better use in community-led initiatives. Investing in services like health care and education will reduce the role of police in society, protect Black lives, and shift the focus to helping people rather than harming them.   When I co-founded Black Lives Matter almost seven years ago, the conversation about police brutality was just beginning to enter the mainstream discourse — not because police violence was anything new, but because of the work of activists and advocates who brought the issue to light with the help of technology that allows us to capture incidents on our phones. Today, more people are rallying for Black Lives than I would have ever imagined. That in itself is a sign of progress. But to turn Black Lives Matter into more than a rally cry, we must roll up our sleeves and do the work. Let’s tear down systems that harm us and strengthen systems that will advance true equality.   Let’s make sure that Black life matters at every stage and in every facet of society, well before a cop has his knee on a man’s neck.

In the wake of the killing of George Floyd, we are seeing a massive popular political realignment around the role and scope of policing in the United States, led by Black organizers and Black-led movement groups. More than ever before, this movement is calling for divestment from police departments and reinvestment into the life-affirming services that help communities thrive. Further still, these protests are not confined to cities and towns across America — they have crossed our borders and are taking place globally.   These calls are being heard, and the power of the people has already led to momentum for meaningful local change, where the vast majority of policing policy decisions take place. As Black people continue to be murdered by law enforcement in communities across the country, local change is not just necessary, but vital.   George Floyd’s tragic murder has galvanized progress in the city he called home, Minneapolis. Officials heard and have begun to act on calls from grassroots organizations to divest from police and reinvest in communities that have been over-policed, criminalized, and deprived of the basic ability to go about their daily lives unharassed; deprived of their ability to thrive.   The Minneapolis City Council has begun the process of going even further than divestment — they are not only diving into police funding and malfeasance, they are actively looking into disbanding the police department in favor of a new set of services and first responders, moves informed by community-led public safety. In Minneapolis, there is a veto-proof majority of the city council in favor. This bold action is promising, and it is not isolated.    In Los Angeles, Mayor Eric Garcetti has pledged to cut between $100 and $150 million from the city’s policing budget, and declared that those funds can and should be reinvested into Black communities across the sprawling city. This is one of the first localities where a concrete number has been articulated and lifted up. This goes beyond rhetoric and reaction, and is key to beginning programmatic change; much more will be needed for actual change.   Advocates are all too familiar with the empty promises and attending inaction of the past, making this an important step toward divestment and reinvestment. Still, activists have been critical of Garcetti’s pledge, and rightly so — the proposed budget cut only amounts to 6 percent of the nearly $2 billion discretionary budget.   Meanwhile on the East Coast, New York City Mayor Bill de Blasio has agreed to propose budget cuts as well. Yet unlike the progress seen in Los Angeles, specific numbers have not yet been made public. De Blasio’s initial reluctance gave way after weeks of persistent pressure from protesters and Black-led organizations demanding significant cuts to the budget. A proposal has since been floated by the city’s comptroller and by activists for a budget cut of $1.1 billion, but de Blasio has not commented.   Other municipalities nationwide are also acting: Hartford, Connecticut; Baltimore; Washington D.C.; Chicago; St. Louis; Durham, North Carolina; Philadelphia; Dallas; Austin, Texas; San Diego; San Francisco; Seattle; and Portland, Oregon have all rolled out proposals to cut police budgets and reinvest those funds into the community.   These plans vary in scope and specificity, but make no mistake: This is a movement. This is a national recognition of the scourge of police violence, the money that funds it, and the obligation of cities to do better by their residents by reinvesting those funds. Cities can choose to promote health and opportunity, not the canard of “public safety” that too often takes the form of criminalizing the daily lives of Black and Brown people. Cities can choose to not fund a corrupt system that enables brutality and death, protects no one, and perpetuates the traumas of racial injustice and underdevelopment.   Elected officials can pledge right now to start on the path toward meaningful change. Now is the time for those who were elected to be our nation’s leaders to show political courage and a commitment to championing the way forward. All elected officials, especially mayors and county executives, can take the first step right now by committing:

It’s been more than 50 years since Black and Brown trans women led the revolutionary Stonewall Riots, fighting back against police brutality and discrimination and launching a movement for equality. This week, we celebrated another incredible landmark in the fight for LGBTQ rights. In a 6 to 3 decision, the Supreme Court affirmed that it is illegal for employers to fire or otherwise discriminate against someone simply because they are LGBTQ. Though more work remains to protect the rights of the LGBTQ community, this decision will go a long way towards affirming legal protections in education, housing, credit, and health care — areas where too many LGBTQ people, particularly Black and Brown LGBTQ people, still face discrimination. Chase Strangio, the Deputy Director for Transgender Justice for the ACLU’s LBGT and HIV Project, joined the podcast to help breakdown this historic decision.