The camera never lies?: Police body-worn cameras and operational discretion

Replete with promises that they will provide a fairer, safer, and more accountable policing culture, the investment in police body-worn cameras (BWCs) globally has continued apace. The avidity surrounding the new recording devices and the panacean qualities they were heralded to possess rode roughshod over attempts to first establish an evidence base to inform best practice. Many police jurisdictions implemented BWCs in the absence of procedural guidance and protocol regarding their operation. In this sense the regulations and guidelines that govern their use have been playing catchup ever since—as is so often the case with the introduction of policing technologies (Lum et al. 2019; Taylor 2016). Not surprisingly, this has resulted in many conjectural perspectives about the utility and effectiveness of the cameras. Additionally, the multiplicity of devices that fall under the banner of ■'body-worn cameras” adds a further level of complexity. Highlighting the large degree of variation, in 2014 The National Institute of Justice published a report examining the features of 18 different models. Devices may: have flashing lights to indicate recording; have outward facing camera screens; be designed to be worn on a shirt lapel, shoulder, or affixed to a hat or on sunglasses. The piecemeal guidance that has developed in concert with the variation in the devices used has not surprisingly frustrated attempts to develop a robust and comparable corpus of evaluative findings.

More specific to this chapter is a key aspect of operational use that has not yet reached adequate resolution—that is, the degree of discretion that police officers have to employ in choosing when to activate the cameras and subsequently turn them off. In previous work, we identified concerns amongst police arrestees regarding the potential “manipulation, modification, and misrepresentation” of footage captured by the cameras (Taylor and Lee 2019). This aspect of police operation, we argue, could significantly jeopardize the capacity of police BWCs to achieve the outcomes their advocates suggest by undermining legitimacy and perceptions of due process.

This chapter explores the complexity of arguments regarding the degrees of discretion that officers have to use to operate the equipment. In doing so, it examines the case for automatic functionality, that is, the triggering ofrecording by certain predefined events, which could potentially offer an alternative to either officer discretion or continuous recording and could potentially satisfy concerns on both sides of the lens regarding fairness, transparency, and privacy.

Police BWCs: Officer autonomy and discretion

Discretion is a central feature of every stage of the criminal justice system in common law jurisdictions (Stenning 2009); discretion to investigate, to report, to caution, to charge, to arrest, and so on. But it is not just systemic, it is built into the very rules and legislation that govern policing. In short, legal rules are often ambiguous in their articulation (Chan 2005) and most legislation from where police derive powers says police "may” rather than “shall” do this or that when carrying out duties. The sheer variance and unpredictability of day-to-day policing activities and events require a continuous exercise of professional judgment. As such, the concept of discretion and police decisionmaking has been an enduring feature of debates regarding law enforcement (Pepinsky 1984). As Finnane (1990, 218) asserts, “every level of police work, especially at the micro level, involves choice on part of the police officer.” Irrespective of seniority, police—from the Commissioner to the officer on patrol—are required to exercise discretion (Bronitt and Stenning 2011). However, operational police are unique among bureaucratic organizations in that those at the bottom of the hierarchy often have the capacity to exercise the highest levels of discretion, acting in large part as gatekeepers to the criminal justice system (Lustgarten 1986). Historically, their decisions in dealing with the public have been largely “inaccessible to their ostensible superiors and effectively unreviewable by any authority, particularly where they have decided not to arrest someone” (Lustgarten 1986, 10). The concept of police discretion is certainly not new, although the idea has only been understood in its complexity in the past 55 years (Chan 2005). First identified in the 1960s it is largely attributed to Goldstein's (1977) argument against the myth of “full enforcement.” That is, officers rarely enforce the law. Rather, law is a tool officers can enact to maintain order and regulate citizen behavior. Fyfe (1979, 309) describes the fluid decision-making granted to officers as “discretionary latitude.” Such a discretionary ethos is perhaps part of the reason why legislature regarding the use of BWCs has resisted standardization and rigidity.

Discretion by its nature involves discrimination, which simultaneously holds two quite different (positive and negative) connotations: on the one hand, the term may be applied positively to a particularly refined person with “discriminating taste”; on the other hand ... negatively applied to improper or prejudiced race-based [or other targeted minority] decision-making.

(Bronitt and Stenning 2011, 321)

As Bronitt and Stenning (2011) note, while this might not seem so confusing, police are told not to discriminate on the basis of race, sex, class, ethnicity, and the like while simultaneously being urged to be sensitive to ethnic, cultural, and religious traditions; not to mention sexual orientation and gender diversity. The line between acceptable and unacceptable discrimination may not always be easy to define.

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