What crime had he committed that justified all of this? Graber, who never before had any brush with the law, had dared to record the police giving him a traffic ticket, and had posted the recording on YouTube. A month earlier Graber had been riding his motorcycle, testing out his new helmet-mounted video recorder. He had also been speeding—really speeding. As he exited the highway, a car cut him off and the driver jumped out, hollering at Graber and waving a pistol. It turns out the fellow brandishing the pistol was an off-duty member of the Maryland State Patrol, although the video shows a good five seconds of yelling and pistol-waving before the officer identifies himself as such. Graber was issued a speeding ticket and released. That would have been the end of it, but Graber’s mother urged him to file a complaint. Graber, who is mild-mannered and quiet by nature, did not want to rock the boat. So he simply posted the video on YouTube with the caption “Motorcycle traffic violation—cop pulls out gun.” (Note how factually accurate that is; Graber even concedes his own guilt.)3

  A couple of weeks later the officer and other Maryland state troopers viewed the video—which someone unrelated to Graber had reposted, along with incendiary comments about the police—and launched a full-blown investigation. The result was that Graber was indicted by a grand jury on seven counts of violating Maryland law, including “unlawful interception of an oral communication” and possessing a device “primarily useful for the purpose of the surreptitious interception of oral communications.” He faced up to sixteen years in prison.4

  When it comes to being punished for recording the police, Graber’s case is hardly an anomaly. Simon Glik, a lawyer with a Russian immigrant-makes-good story, was busted for video recording on his phone a police arrest he thought had gotten out of control. Kahliah Fitchette, a model student and junior class president at a Newark school, was hauled off a bus, handcuffed, had her cell phone erased, and was taken to an adult detention facility after she recorded police dealing with an apparently unwell bus passenger. In 2014, Karen Dziewit was arrested in Chicopee, Massachusetts, for drunk and disorderly, then charged with wiretapping for turning her smartphone on during the arrest.5

  There have been so many prosecutions for recording the police that the United States Department of Justice ultimately felt compelled to weigh in. It filed a brief in 2013, in yet another Maryland case, Garcia v. Montgomery County. Garcia, a journalist, was placed in a chokehold, thrown to the ground, arrested, and had his camera confiscated—all for recording a public arrest he felt involved excessive force and other improprieties. In its brief, the DOJ argued that arrests and charges like these violate the First and Fourth Amendments. Their occurrence, the DOJ told the court, “erodes public confidence in our police departments, decreases accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.”6

  The good news is that Graber’s story had exactly the ending it should. A Maryland judge, Emory A. Plitt, Jr., in a thoughtful opinion, dismissed all charges relating to the videotaping. He concluded that a public encounter involving the police could hardly be a private conversation subject to any of Maryland’s prohibitions against surreptitious recording. “Those of us who are public officials and entrusted with the power of the state are ultimately accountable to the public … we should not expect our actions to be shielded from public observation.” If people cannot observe and record the police, the judge asked, closing with the famous Latin phrase Qui custodiet ipsos custodes (“Who will watch the watchmen?”).7

  Despite the appropriate ending, Graber’s story is ripe with instructive irony.

  OF FORCE, AND SURVEILLANCE, AND POLICING OLD AND NEW

  The first ironic thing about Graber’s story is the strong position taken by the United States Department of Justice regarding the propriety of recording the police. The DOJ’s brief in the Garcia case explained that the First Amendment both protects “the right to gather information critical of public officials” and “also prohibits government officials from ‘punish[ing] the dissemination of information relating to alleged government misconduct.’” Uncovering such misconduct, the DOJ proclaimed, “has traditionally been recognized as lying at the core of the First Amendment.”8

  The DOJ’s position favoring law enforcement transparency is a laudatory one; regrettably, it is not the stance the DOJ always maintains when federal officials are the ones the citizenry would hold accountable. The DOJ’s filing in the Garcia case occurred just three months before Edward Snowden’s first revelations of widespread secret government surveillance, which the DOJ itself had worked hard to keep under wraps. Similarly, one cannot help but recall the DOJ’s cover-up of law enforcement use of Stingrays, or the Department’s persistent opposition to disclosures about the use of National Security Letters and other tools in the war on terror.9

  There are differences one can point to between what happened to Graber and these other examples, of course. As the DOJ said in its filing in the Garcia case, photographing “officers engaged in their duties on a public street” is the “archetype of a traditional public forum” where the First Amendment holds most sway. These other examples all involved government activity secreted from public view, not policing on public streets.10

  However, this seeming distinction between street and secret policing only serves to underscore the challenge we face regulating policing in the future. The police use of force that citizens are filming on the streets, and the surveillance at issue with Stingrays and bulk data collection, are not really different things. They both are means of controlling the citizenry, of making them behave as the government wishes. That was the point of Orwell’s 1984.

  As technology advances, we can expect the role of surveillance to increase, while the use of force may well diminish as a result. Policing is, as we have seen time and again, transforming before our very eyes. It continues to move from a model that requires force to forestall and apprehend the bad guys, to one in which widespread surveillance is used to detect and prevent bad acts before they occur. The government, in ways it deems entirely benevolent, is keeping tabs on all of us. It is looking for—as predictive policing would put it—signs of “abnormal” behavior. The hope and expectation is that all this monitoring will deter crime from happening, or allow the government to shut it down quickly before it does.11

  As more and more policing takes the form of secret monitoring, it becomes increasingly difficult for the citizenry to monitor the government itself. When force is used, it often happens out in the open. (Not always, as the victims of aggressive interrogation can attest.) Surveillance, on the other hand, typically is designed and put into place behind closed doors. The debate about whether Edward Snowden is a hero or a villain is not because anyone countenances the theft and disclosure of government secrets as a general matter: that sort of conduct puts us all at risk. It is because in a world in which policing moves behind closed doors and happens surreptitiously, these sorts of leaks may be the only clue we get about what the government is doing. And we cannot govern without knowing.

  Policing involves the use of force and surveillance. Transparency is necessary for both these activities, distinct in some ways though they may be. The use of surveillance on Americans is every bit as much a matter of public concern as the use of force. Democratic policing requires that the use of both tactics be debated, authorized, and monitored by the body politic. And that goes for the federal government as well.

  RECORDING OF THE POLICE IS NOT GOVERNANCE

  The second irony can hardly escape anyone’s notice: in sharp contrast to what happened to Anthony Graber, cameras now seem to be the favored solution—including by many police officials themselves—for all the woes of street policing. Less than eighteen months after the DOJ filed its brief in the Garcia case defending the filming of the police, Michael Brown was killed in Ferguson, the militarized response to street protests began, and police use of force became a major and enduring media topic. To hear politicians tell it, the primary antidote to what is wrong with policing, and the best way for the police to regain trust, is body-worn cameras (BWCs).12

  On the one hand, it’s great, this sudden interest in transparency. Early studies suggest the cameras result in less use of force, better police conduct, and perhaps even fewer arrests.13 When police officers in Rialto, California, were outfitted with body cameras, use of force by officers wearing cameras fell by almost 60 percent and complaints against officers plummeted by 87 percent compared with the year before. Mesa, Arizona, and San Diego reported similar dramatic reductions in citizen complaints and use of force. Whether these results will hold up under closer scrutiny is anyone’s guess, but social science research does suggest that when people know they are being recorded, they often respond by altering their conduct. (Of course, this fact can cut both ways if it deters police from taking actions they otherwise should—which some people claim is the case, though there at present is insufficient data to back up the claim.)14

  Still, before going gaga over the latest technological answer, it’s important to pause and consider two things.

  First, body-worn cameras are going to help with only a small percentage of perceived police misconduct. They’re not going to do a thing to solve the problems of transparency present when police operate behind closed doors. And unless cameras are on all the time—more on this in a moment—there is still plenty of policing we won’t catch on video.

  More important, BWCs are not a substitute for democratic policing. Rather, they are a Band-Aid, yet one more after-the-fact substitute for regulating policing properly on the front end. Yes, the idea is that having the video available for after-the-fact review will cause the police to act better on the front end. That is precisely the theory of most after-the-fact solutions, be they judicial review, civilian complaint boards, or Inspectors General. None of these things is the same as the people regulating policing on the front end, the way all the rest of government is regulated. What is needed are rules and policies that are transparent, and formulated with public input. That say how things should be done. Body cameras don’t establish protocols: they simply are one other means to try to keep policing within bounds as it regulates itself.

  No matter what the evidence proves over the long haul, the fundamental point is still the same: cameras are cameras; they are tools of assuring compliance, not governance.

  GOVERNING CAMERAS

  There’s even irony regarding body cameras themselves: for although they are no substitute for democratic governance, there has been more democratic debate and policy-making around BWCs than any other aspect of policing in recent memory.

  From Carrboro, North Carolina (pop. 20,000), to San Francisco, California, municipal authorities have worked with police to develop the rules and regulations as to how and when cameras will be deployed. Some of the processes have been extraordinarily involved. San Francisco’s chief promised a body camera trial as early as 2011; in November 2015 a retinue of involved stakeholders—police officials, police unions, civic leaders, civil liberties advocates, and public defenders—still were fighting over the content of the BWC policy.15

  There’s good reason for all this debate; body cameras have promise, but still they pose significant risks. Some civil libertarians are rightly a bit dubious: they observe that the cameras are pointed at the public, not at the police, and may become yet one more tool for monitoring by the police. “There’s a fine line between protection and surveillance,” pointed out Alderwoman Randee Haven-O’Donnell of Carrboro, discussing the value of having the police notify people they are being filmed. That’s one of the reasons some police have come to embrace BWCs: like cameras mounted on patrol car dashboards, these body cams can provide a trove of evidence to support the police. Indeed, some BWC policies allow officers to watch the video before they file an incident report or make a formal statement to investigators. The LAPD’s draft policy requires it. Critics rightly point out we don’t allow criminal defendants this opportunity to get their story “straight” before speaking—so why would we permit it of the police?16

  Body cameras pose serious privacy concerns, a point that often seems overlooked in the face of demands to disclose the footage. The ACLU in Southern California challenged the LAPD’s body camera policy on the grounds that it made no allowance for public viewing of the footage. In Hayward, California, the ACLU sued because it was charged almost three thousand dollars by the police to obtain video of police breaking up a demonstration. Whether that amount is right or not—and in the lawsuit the department documented its costs at great length—it can’t possibly be the case that all footage the police capture must simply be turned over to the media or others, without reviewing it to ensure no one’s privacy is at stake. What about when police enter private homes, interview rape and domestic violence victims, talk with confidential informants, or simply unwittingly capture people going about their private lives who would prefer it to remain that way?17

  Beyond privacy, innumerable other issues loom. When should the cameras be turned on, and when may they be turned off? Giving individual officers the discretion to activate and deactivate the cameras won’t work: research suggests that when police are able to control recording, important evidence—particularly evidence unfavorable to the police—goes missing. Turning a camera on late in an incident may provide a misleading impression of what occurred. On the other hand, requiring cameras always to be on would heighten privacy concerns and raise questions about interviews with confidential informants and some crime victims.18

  For all these reasons it is both notable and commendable that so much citizen energy has gone into developing policy around the use of BWCs. The questions are hard, the evidence uncertain, and the values at stake often in tension. These are precisely the sorts of issues with which democracy regularly has to grapple.

  What’s unfathomable is why the same thing is not happening, then, with a host of other policing issues equally demanding of democracy’s attention. Use of force is all over the news, but we haven’t seen anything close to the same degree of formal public engagement with use-of-force policies. Facial recognition—and compiling recognition with other databases—is one of the looming privacy issues of our day. But the people of Carrboro and San Francisco have not organized to develop policies on these issues. And that doesn’t begin to speak to all the aspects of policing to which we are not privy, but should be.19

  To be clear, some of these other issues occasionally are matters of general public discussion—but that is not the same as democratic decision-making. Public debate is healthy, and can have an indirect influence on policy. What distinguishes what is happening regarding body cameras is that the policy itself—the actual legal rules to govern cameras—is being made with the involvement of an engaged citizenry. The rules are written down, debated, rewritten, and only then formally adopted. That is what democratic governance looks like.

  THE COSTS OF DEMOCRACY

  Even if we are inclined to pursue the democratic governance of policing—as we must—it is still going to prove difficult. One should not be naïve about the transition.

  The first challenge of democratizing policing is one of “scale.” Although it seems difficult to pinpoint the number with certainty—itself a telling fact—the Department of Justice’s Census of State and Local Law Enforcement Agencies in 2008 put the number of law enforcement agencies at close to eighteen thousand. The largest force is New York City’s with well over thirty thousand sworn officers. By contrast, Gaines Township, Michigan (pop. 7,000), has only one. (More than two thousand other communities have a single-member police department.) What’s really stunning is that roughly half the police forces in this country have fewer than ten full-time sworn officers, and three quarters in the country have fewer than twenty-five.20

  When it comes to governance of a police department, Los Angeles is a leader. For years LAPD has had a Police Commission composed of lay citizens. Pursuant to a settlement order with the U.S. Department of Justice, the Commission was turned into a real governing body. Any significant police policy is run through it. The Commission holds weekly meetings that are open to the public, and it solicits public input through notice-and-comment rule-making. As a result, there has been widespread democratic engagement in Los Angeles around issues involving use of force and surveillance.21

  It’s simply not realistic, though, to imagine every small hamlet and community in America engaging in quite the same degree of formal rule-making as Los Angeles. So what might be the best way to achieve local community governance of the police? Truth be told we have very little in the way of models. The President’s Task Force on 21st Century Policing called for a host of community involvement in police policy-making, on everything from technology to setting enforcement priorities. Where the Task Force was silent is in how this is going to happen.22

  There are some shortcuts available. Despite the huge amount of policy-making around body cams, it is worth asking whether every single community really needs to develop a unique policy on every policing subject. Certainly it should if community members want it. But we don’t all write our own recipes; most of us pull something out of a cookbook or off the Internet, then alter it to shape our own tastes and dietary needs. What’s true with cooking can be true of policing policy as well. There are many instances in which state and local governments borrow one another’s legislation, tailoring it if necessary to a particular community’s requirements. Why not the same with the law governing policing? Organizations such as the International Association of Chiefs of Police have a large store of policing policies for consideration; the American Law Institute is now drafting its Principles of Policing, which could be put to wide use.