When he saw the video of the police shooting, Hamilton County Prosecutor Joe Deters — a Republican known for his “tough on crime” views — did not hold back.
“This is the most asinine act I’ve ever seen a police officer make,” Deters said. “It’s an absolute tragedy in 2015 that anyone would behave in this manner. It was senseless.”
The video, from a body camera University of Cincinnati police officer Ray Tensing was wearing, gave a very clear picture: Tensing stopped Samuel DuBose because he didn’t have a front license plate. Tensing then asked for a driver’s license. DuBose didn’t give Tensing his license. Tensing asked DuBose to take off his seat belt. DuBose’s car then began moving forward, away from Tensing. The officer, even though DuBose and the car didn’t pose a threat, shot DuBose, killing him.
Yet even with video showing the entire sequence of events, and even with a prosecutor friendly with police like Deters calling the shooting “unwarranted,” Deters this week said that he’ll drop the case against Tensing — after not one but two mistrials caused by a hung jury.
This was not the story that Americans — and especially Black Lives Matter protesters who’ve rallied against police brutality — were told about body cameras. These devices were supposed to be key to police accountability and making police more transparent.
The thinking was simple: Once the public sees video of police officers in their day-to-day job, the world will have a clearer picture of just how widespread police abuses are. For racial justice advocates in particular, the hope was that the video would force jurors to discard their typical pro-police biases in the courtroom — and be more willing to convict officers for bad uses of force.
The idea got a lot of traction, leading the Obama administration to push police-worn body cameras and for police departments around the country to adopt the technology — especially in the aftermath of high-profile police killings of black men, which led to massive Black Lives Matter protests in cities like Ferguson, Missouri, and Baltimore. The policy was extremely popular, with some polls finding nearly 90 percent support among Americans, including Democrats and Republicans.
Yet as the policy has rolled out, we’ve seen the sharp limitations of cameras and video — not just in the Tensing trial, but also other cases in which video provided evidence of what happened. The courtroom failures point to the fundamental limitation in recording the police: While it can help hold cops accountable in some cases, the problems with American police and how they use force are simply far bigger than a lack of video. So what was once thought of as a relatively easy fix to police use of force issues has ended up falling short of what many supporters and activists anticipated.
Video didn’t lead to convictions in several big cases
It’s not just Ray Tensing. Over the past several months, there have been several other high-profile police shootings that didn’t result in convictions despite the existence of body cameras or, in their absence, other video evidence.
Another particularly egregious case is the North Charleston, South Carolina, police shooting of Walter Scott. The video, from a bystander’s cellphone, showed ex-cop Michael Slager shooting a fleeing man in the back at least eight times, even though Scott had never posed a threat to Slager or others. Yet a judge was forced to declare a mistrial after a jury hung. (Slager, however, later pleaded guilty to federal charges for violating Scott’s civil rights.)
This was a case in which many people, including a very conservative, pro-police pundit like Sean Hannity, said the officer was clearly in the wrong. Yet a jury could not reach a verdict — showing just how strong pro-police biases are among the general public and jurors.
“All it takes is one juror,” Thomas Abt, a criminal justice expert at Harvard University, told me, “and there are people out there in the general population who are just not going to second-guess a police officer — even when the evidence is overwhelming.”
Abt pointed out, however, that most cases aren’t going to be as clear-cut as Slager’s. The reality is that many police encounters are simply ambiguous — maybe in hindsight we can all agree that force wasn’t necessary, but it’s genuinely understandable why a cop would have thought at the time of an ambiguous shooting that force was needed.
One example cited by several experts: the Minnesota police shooting of Philando Castile. Officer Jeronimo Yanez was not wearing a body camera during the incident, but the police car’s dashboard camera did capture video. Yanez walks to the car, showing no aggression as he approaches Castile. We can’t see what’s happening in the car, because the camera can’t see through the rear window. What we do see and hear, instead, is Castile admitting that he has a gun on him, Yanez telling him not to reach for it or pull it out, and Yanez opening fire after several warnings — all of it playing out in mere seconds.
The takeaway is foggy. It’s understandable Yanez would be alarmed by someone who admits to having a gun and is, from his view, appearing to reach for it within seconds. He also gave multiple warnings. Castile’s girlfriend said he was reaching to get his driver’s license, but it’s believable that Yanez wouldn’t have known that at the time — so he may have been legally justified, from the jury’s perspective, in fearing for his life and using force. In the end, video didn’t add much clarity to the case.
Sometimes the lack of clarity can be caused by the technological limits of the cameras themselves. The video may not be very high-quality. If it comes from a body camera, it’s filmed from a narrow view — whatever is visible from the officer’s perspective. It might miss key moments if the cameras aren’t activated quickly enough, or it might not capture a shooting at all.
“The video can be ambiguous,” Rachel Levinson-Waldman, an expert on body cameras at the Brennan Center for Justice, told me. “It’s hard to interpret sometimes. It’s shaky. Often, the body cameras aren’t turned on at the right time … so they may not capture all of a particular incident.”
One of those problems was present last week in the police shooting of Justine Damond in Minneapolis: Officer Mohamed Noor, who shot Damond, and his partner were both wearing body cameras. Minneapolis Police Department policy requires cops to turn on their cameras before they use force and when interacting with civilians. Yet they didn’t — and we still have little idea how, exactly, the shooting played out.
This shows another flaw of body cameras in particular: The cameras can’t, at least for now, be left on at all times due to technological constraints (especially battery and storage limits) and privacy concerns (particularly for civilians whom police are filming). So it’s ultimately up to individual officers to decide when the camera is turned on — and that makes it possible for cops, on purpose or not, to effectively cover up acts of bad policing.
Combined, these limitations make it so body cameras were always doomed to fall short of the expectations that some supporters had. The problems with policing are just too messy and complicated for one piece of technology — or video more broadly — to fix.
Police’s problems are far bigger than a lack of video
This was something experts emphasized again and again: Video can only do so much. There are simply much bigger systemic problems facing police than whether there’s enough evidence to convict them in the courtroom or hold them accountable in the public eye.
For one, the legal standard for use of force is so broad that it’s going to be very difficult to convict police officers even with solid evidence. The law requires that an officer reasonably perceive a threat to justify use of force even if a threat isn’t actually present. So if an officer thinks that someone is pulling a gun, that justifies use of force even if the person is really pulling out his wallet. It comes down to what a “reasonable” officer would do — an incredibly vague standard.
Some experts argue this standard is too loose. “The legal standard, I think, makes it very, very difficult to establish the criteria for an unreasonable use of force,” Michael White, a criminologist at Arizona State University, said.
Police and other experts argue that the standard needs to be loose, so officers don’t hesitate in moments of split-second decisions — because the legal consequences may be on their minds — and fail to protect themselves or bystanders. But in the real world, this also allows officers to get away with some cases of excessive uses of force.
Abt argued that part of the problem is we often don’t explicitly define what a reasonable police officer would do in a lot of situations. We might expect a police officer to deescalate, not escalate, dangerous encounters and avoid unnecessarily aggressive tactics like chokeholds, but that’s not always in writing. That contributes to the vagueness under the current legal standard.
To remedy this, Abt argued that far more of our expectations for police should be clearly written down in police training manuals, guidelines, and other tools used to train police — so supervisors and prosecutors have something clear to point to when an officer does something wrong. “If you forbid a chokehold and it’s in the field manual, the police won’t do the chokehold,” Abt said. “And if they do, they can be disciplined more easily, and you have a stronger case if you need to go to court.” He added, “It’s one thing to do deescalation training, but it also has to be down on paper to impact policy.”
Several experts also argued that the courtroom and law place too much emphasis on the seconds before and the moment of a shooting when, in reality, what went wrong may have come much earlier.
“That moment in time when the officer uses force, we can look at and evaluate that — and we should,” Chris Burbank, former Salt Lake City police chief and director of law enforcement engagement at the Center for Policing Equity, told me. “But what I’m personally concerned about is all that led up to that circumstance.”
An example several experts cited is the Cleveland police shooting of 12-year-old Tamir Rice. In that shooting, officers suspected that Rice had an actual firearm, when he was in fact playing with a toy gun. And officers drove right into the park where Rice was playing, putting themselves right in front of the boy and shooting him within two seconds of getting out of their squad car.
What if officers had, instead of driving into the scene, parked farther away, surveyed the area, and walked into the park more slowly, while giving warnings to Rice? It’s of course impossible to say what the outcome would be — but it certainly seems much more likely that Rice would be alive today.
It’s this kind of strategic change that experts argue is necessary: Police need to start looking at situations to emphasize deescalation and avoiding the use of force, as is common in other developed countries. But in the US, the standard is frequently to take control of the situation by any means necessary — and that can lead to rapid, unneeded escalation.
Policy and law also aren’t always going to be the answer. Consider racial disparities in police shootings: If part of the problem is that American society as a whole is racist, that will spill over into police departments no matter how many policies are put in place to try to limit officers’ personal biases. It is on society in general to fix those problems, not just police.
More than laws and policy, police are also going to be guided by certain norms — such as the widespread slogan among officers that “I’d rather be tried by 12 than carried by six.” Some policies can push police in another direction. But until cops are fundamentally cultured to respect all human life and try to make sure that everyone, not just officers, gets home safely at the end of the day, there’s only so much that new policies can do.
“Overwhelmingly, we are controlled by culture, not formal sanctions,” Abt said. “Policing is no different in some ways.”
Some of the benefits of body cameras may be hidden
This isn’t to say that video can never be useful. There are cases in which body camera or other video footage was used to hold police accountable; for example, a body camera in Baltimore recently caught a police officer planting drugs at a crime scene, leading the prosecutor to drop charges. And cameras have been used to exonerate officers of false charges as well, such as when a cop in New Mexico was earlier this year falsely accused of beating a man.
There are also some more subtle potential benefits to body cameras.
Some studies, for instance, have found what experts call a “civilizing effect” as a result of the cameras: When body cameras are present, people tend to file fewer complaints against police, and there can be drops in use of force. Researchers attribute this to body cameras leading both cops and the people they interact with to behave better, since they know they’re being recorded.
The research in this area is still very early, so the civilizing effect is far from a proven fact of body cameras. Other studies, in fact, have found no or weaker effects of body cameras on citizen complaints and use of force than earlier research did.
White, who authored a comprehensive report on police body cameras for the Justice Department in 2014, said that whether a civilizing effect occurs will likely come down to what kind of police department is implementing body cameras.
“If you have a very professional police department — good relationship with the community, officers are well trained, good accountability mechanisms in place — when that kind of department rolls out body cameras, I don’t think you’ll see these giant reductions in use of force, because there really doesn’t need to be [a big reduction],” he said. “But if you have departments where those kinds of mechanisms aren’t in place, you probably have a higher level of use of force that is questionable — so when the cameras are rolled out in that kind of department, I think you’ll see higher reductions.”
Even if body cameras ultimately have no effect on, say, use of force, that doesn’t mean they don’t have other hidden benefits in other situations, especially since most day-to-day police encounters don’t involve any use of force.
“Police use of force, generally, is extremely rare,” White said. “About 98 percent of police-citizen encounters, no force is used. … In only about 2 percent or so of encounters, some force is used. And in the vast majority of that 2 percent, it’s very, very minor uses of force.”
He added, “So when we talk about police shootings, we’re talking about a tiny, tiny percentage of cases. Of course, they’re truly serious, and we’re talking about life-or-death situations. But I think it’s important to take that broader view and understand that when we think about the impact of body-worn cameras, we have to think about the impact on all types of encounters.”
As one example, White pointed out that in other professions, such as in sports and medicine, it’s common to use video to walk employees through what they could have done better or did well during a specific situation. Police supervisors could adopt a similar review process with body camera videos, using real-world encounters as teaching moments — not just in police use of force cases, but more routine policing as well. That would improve policing overall, even if the public never sees those successes.
That may not make up for mistrials in egregious police shootings. But it’s a start.