Maui Time

An open letter to the Maui County Council about the Maui Police Department’s new body camera program

Maui County Council Chair Mike White and the rest of the Maui County Council:

Don’t we live in momentous, wondrous times? Futuristic technology seems everywhere right now. Earth-orbiting satellites relay phone, television and internet transmissions, as well as tell you exactly where you’re standing. Pollution-free electric cars and trucks are now on our roads, while automakers are pushing the bounds of autonomous vehicles. Agile robots can now run, jump and even backflip. For just a few hundred dollars, a person can carry a personal computer connected to the internet in his or her pocket. And a police officer can now carry out patrol duties while a small camera mounted on the front of his or her uniform silently records citizen interactions.

It’s this last bit of technological innovation that concerns me–or rather, it’s the Council’s lack of concern over the cameras that concerns me.

I don’t know if you realize this–and I’ve found no evidence that the Council does–but the Maui Police Department’s issuing of body-worn cameras to its patrol officers represents a revolution in law enforcement–in terms of both documenting crime and preventing police abuse. When first mentioned a few years ago, body cameras seemed to hold great promise for police accountability. For the first time, there would be an independent record kept of every time cops used deadly force, or just any force, on suspects. Many civil rights advocates saw the body camera as a possible tool for citizens to help bring bad cops to justice.

Now, as police departments across the country rush to attach cameras to their officers’ uniforms–and lawmakers like U.S. Senator Brian Schatz sponsor legislation to make that even easier–it’s clear that the dream of body cameras helping bring about citizen justice is just that–a dream. Police departments, including the one here in Maui County, are crafting body camera policies that help cops, but do nothing to strengthen accountability measures for citizens.

That’s because over the last three years, while the MPD was studying various cameras and technologies, there’s been virtually no public debate over the question of whether the department should get body cameras–and if they do, how they should use them. And now, just like that, a hundred or so cops are today patrolling Maui with cameras clipped to their uniforms.

This is how it went down when the MPD decided it needed an armored truck–the Bearcat. And it’s what happened when the department asked for a tracked robot that can also carry explosives or even a gun. In both instances, the Council asked few questions about why exactly the MPD needed this kind of hardware, and what it would mean for the future of Maui County.

Way back in early 2016, during his annual State of the County Address, Mayor Alan Arakawa painted the MPD’s body camera program as a great advancement for citizens and cops alike.

“Our Maui Police Department continues to meet higher standards,” Arakawa said on Mar. 14, 2016. “By the end of the year MPD will be implementing body cameras for about 125 of its patrol officers. Although some see these cameras as a way to monitor the behavior of our officers, they are also a tool for law enforcement. Used correctly, we hope that the footage from these cameras can be used as evidence in court. Mahalo to Chief Tivo [Faaumu] for initiating this important community policing tool.”

Arakawa turned out to be optimistic on the timing–the MPD only began implementing its body-camera program in September 2017. He was also, I suspect, entirely too optimistic about the cameras’ value for the community at large.

How police departments around the nation are using these cameras is becoming a great disappointment right now for those who advocate for greater protections for civil liberties. Yet as I searched through the online archives of the minutes of meetings of the County Council and its various committees in the last year, I found virtually no mention of the MPD’s body camera program.

In fact, I found exactly one mention of the cameras in the minutes of the Maui County Council Budget & Finance Committee (which, during budget time, is where top MPD brass usually describe their latest programs and acquisitions). The camera program was mentioned in passing at the Jan. 31, 2017 hearing, during testimony by MPD Lt. Scott Migita on a drone the MPD wanted. Councilmember Kelly King asked Migita how the money for the drone would come out of the budget. Here’s the exchange:

MR. MIGITA: Right. So as far as public input, it’s going to fall along the line of the body camera project. I’m not sure if you’re familiar with the body camera project.

COUNCILMEMBER KING: I’m not familiar with it.

And that was it. Though the minutes clearly show that King told Migita she was not familiar with the body camera program, Migita just glanced over it and returned to the subject of financing the drone. If the Council or its committees ever took up body cameras again, I couldn’t find it in the minutes (I also recently asked a Council staffer if the Council had ever discussed the body camera project in detail, and the staffer couldn’t think of any instance).

The Maui Police Commission, which in theory provides direct oversight of the MPD, doesn’t seem to be any better. In their minutes for 2017, I could find just one mention of the the MPD’s body camera program, which came in the July 19 meeting. There, Deputy Chief Dean Rickard briefed the panel on the program. He told them the department had gotten 125 cameras from Axion and was currently installing the required hardware in the Wailuku, Lahaina and Kihei districts. He said the department’s plan was to have the cameras “on the road” by Sept. 1.

This is a huge problem, especially since the MPD itself is now–after going ahead with the program–asking citizens for their thoughts on body cameras. The department’s new Citizen Survey, released on Nov. 21, includes two questions on body cameras:

• Do you support the use of body-worn cameras by Maui Police Officers (Yes; No; or Unsure)?

• Do you feel safer knowing the police are wearing body-worn cameras (Yes; No; or Unsure)?

Given the fact that there’s been little to no public debate on the efficacy and dangers of police body cameras, it’s extremely difficult for Maui residents to answer the above questions with any degree of informed confidence.

Back in October, I reported that much of the “accountability” rationale for equipping police officers with body cameras was negated when the MPD decided to give its officers the discretion to turn the camera on and off. I also reported a nauseatingly long list of incidences over the past few years of camera-equipped cops across the country who, for whatever reason, suddenly didn’t have a functioning camera when it came time for them to use deadly force (or even just any force).

Now a new report from The Leadership Conference on Civil and Human Rights–a coalition of more than 200 organizations across the country–states that most law enforcement agencies that are now using body cameras are doing so with policies that are completely incompatible with public accountability.

“As more police departments utilize body-worn cameras, they must not be taken as the last word for police accountability,” said Vanita Gupta, president and CEO of The Leadership Conference in a Nov. 14 news release. “Our scorecard shows that many police departments are failing to adopt adequate safeguards for ensuring that constitutional rights are protected, and our report shows that unrestricted footage review places civil rights and liberties at risk and undermines the goals of transparency and accountability.”

Though Maui PD isn’t included in this report, its policies are every bit as problematic. According to Lt. Gregg Okamoto, the MPD’s Public Information Officer, the department does allow for officers to review body camera footage before they write incident reports, but does not allow citizens filing complaints to review any relevant body camera footage. Okamoto also said the MPD will store all body camera footage–including that which isn’t currently relevant to any investigation–for five years. Okamoto also said the MPD currently does not have a policy–either for or against–the use of facial recognition technology to identify individuals who appear in all this new body camera footage. At least Maui PD says its body camera policy is available to the general public, though Okamoto added that anyone who wants to look at it must first file a written public records request under the state’s Uniform Information Practices Act–a needless requirement given how easy it would be to simply post the policy on the MPD website.

All of this is troubling–especially the part about allowing cops to look at their camera footage before they write their incident reports.

“Without carefully crafted policy safeguards in place, there is a real risk that body-worn cameras could be used in ways that threaten civil and constitutional rights and intensify the disproportionate surveillance of communities of color,” states the Leadership Conference’s new report, which details how most of the 75 departments it surveyed do exactly what the MPD is doing. “Today, most major police departments that use body-worn cameras allow officers unrestricted footage review. Officers may review body-worn camera footage anytime they wish, including before and during the process of writing their initial incident reports. Even in cases where officers’ actions are most closely scrutinized, including after a controversial use-of-force incident, officers are often permitted to review footage before giving investigators an initial interview.”

The Leadership Conference report goes to great lengths to show why allowing police officers time to review body camera footage before they write their reports is bad for the general public. It’s worth quoting at length.

“Because watching body-worn camera footage can alter an officer’s memory of an event, doing so will likely taint what officers write in their reports,” states the Leadership Conference report. “This practice will make it more difficult for investigators, internal affairs, and courts to accurately assess what occurred and whether an officer’s actions were reasonable given what he or she perceived at the time. Unrestricted review policies undermine longstanding principles of procedural justice, violate the law enforcement community’s best practices for preserving eyewitness evidence, and threaten to erode community trust. These policies are antithetical to the primary purpose of body-worn cameras: to enhance police transparency and accountability.

“Unrestricted footage review creates an illusion of accuracy because it produces a false impression about how much officers actually remember about an incident,” the report continues. “It makes officers’ memories appear to be more accurate, and thus more credible, than the memories of other eyewitnesses–which can distort how an independent factfinder, like a judge or a jury, might understand how an incident truly unfolded. In the worst cases, because of the inherent limits of body-worn cameras, unrestricted footage review allows officers to square their version of events to the footage, and potentially create false beliefs about what actually happened.”

According to The Leadership Conference, many police departments around the nation are adopting similar policies. Their survey noted that just four of the 75 departments they surveyed “expressly allow people who are filing police misconduct complaints to view all relevant footage.” The Conference survey discovered that only seven of the 75 departments they looked at “place any limits on the use of facial recognition together with their camera systems.” Just 11 of the 75 departments “delete unneeded footage within six months of recording.” And, most disturbing, “No department reviewed requires its officers to always write incident reports before watching relevant footage.”

Not a single department. In fact, the Conference found that just “13 out of 75 departments place any restrictions on officer review of footage, primarily after serious use-of-force incidents.”

Just because most cities and municipalities around the country are allowing their law enforcement agencies to do this, that doesn’t mean Maui County should. Taxpayers in Maui County provide the money for the Maui PD, and its cameras. Considering that their faces will inevitably end up recorded on these cameras, shouldn’t their representatives in government have some say in how these are used?

Very truly yours,

Anthony Pignataro

Cover design: Darris Hurst