Over the past month, two high-profile incidents reaffirmed why police body cameras cannot serve as a police transparency and accountability tool as long as state law empowers the police to determine what footage the public gets to see. As we have said time and time again, when the police are given the discretion to publicly release favorable body camera footage but withhold negative footage, police body cameras become nothing more than a police propaganda tool.

The first such incident occurred on Nov. 19 in Omaha, Nebraska, where Kenneth Jones, a 35-year-old Black man, was pulled from the back seat of a car and killed by white police officers during a traffic stop. Despite having body camera footage of the incident, and immediate calls for transparency, the Omaha Police Department has refused to release the footage despite Nebraska’s strong tradition of open government. This decision, quite understandably, incensed the public. Omaha Deputy City Attorney Bernard in den Bosch, while acknowledging that “in the State of Nebraska, body cam videos are probably public records” nevertheless stated that “we have exercised our right to use the exception in the public records act to withhold them from public dissemination.”

Omaha Police Chief Todd Schmaderer took a different approach, saying that “I want to release the video” but then claiming he could not because “the video is the most inflammatory piece” of evidence, and that “arguably, if you are going to taint the jury pool, it would be with that piece of evidence.” The Omaha Police Department even went a step further, suggesting that Nebraska state law prohibits them from releasing the footage until the conclusion of any grand jury work related to the recorded incident.

The chief’s claims are odd and suspicious for three reasons. First, when privately recorded videos of police conduct have been publicly released, they have had shockingly little impact on jury pools. Just ask the families of Eric Garner in Staten Island, New York or Daniel Shaver in Mesa, Arizona, where despite the release of graphic videos of their family members’ murders, the offending officers avoided any criminal liability. Second, the chief’s claim that state law prohibits him from releasing the footage is without merit. Even the local county prosecutor’s office told News Channel Nebraska that “nothing in the [state] grand jury law prohibits any police video from being released now.” Third, despite the chief’s claim that he was legally prohibited from releasing the body camera footage, he and his own police department went ahead and released several still images from the video — undermining all his previous claims.

All in all, the tangled web of strained and dubious claims by the Omaha Police Department are strongly indicative of someone trying to hide the truth; in this case, an unfavorable truth contained on body camera footage. But because Nebraska state law does not create an affirmative obligation to release police use-of-force body camera videos within a short time after an incident, the public has not seen the footage to date.

Contrast that with the second incident, which occurred just over two weeks later, on Dec. 7, in Tallahassee, Florida. In that case, the Florida State Police raided the home of former Florida Department of Health data scientist Rebekah Jones, who has alleged she was fired from her job for refusing to manipulate COVID data. Following the raid, Jones tweeted that the state police “pointed a gun in my face. They pointed guns at my kids.” The tweet, which included a privately recorded video of the police entering Jones’ home, was picked up by the local press.

In that case, like the case in Omaha, the police were wearing body cameras. Similarly as well, Florida’s body camera law, like that in Nebraska, does not require the immediate release of body camera videos that contain police uses of force, like entering a person’s home with guns drawn. However, in the Florida case, police body camera footage appears to show the state police acting in a more restrained manner than Jones was alleging. As a result, in what CNN properly noted to be a “rare move”, the state police released the body camera footage publicly, and they did it quickly. Transparency prevailed, but only because it favored the police.

This double standard plays out in states like Nebraska, Florida, and many others where laws allow the police to be the sole or initial arbiter of what body camera footage the public gets to see. When body camera footage is negative, the police use bogus arguments to either withhold it or to justify selectively releasing portions of the footage to foster the story they are trying to tell. However, when body camera footage is favorable, the police tend to release the video with lightning speed. That is how a propaganda tool operates.

If police body cameras are ever to become a real tool for promoting police transparency and accountability, release of footage that captures uses of force or alleged police misconduct should be quick and automatic. Further, as the ACLU’s model state body camera legislation states, “where a subject of the video footage is recorded being killed, shot by a firearm, or grievously injured, [release of the footage] shall be prioritized and the requested video footage shall be provided as expeditiously as possible, but in no circumstances later than five (5) days following receipt of the request.” States that do otherwise, either by leaving the release of critical footage to law enforcement discretion or by erecting laborious and costly legal hurdles to accessing important footage, should drop the ruse that they care about police transparency or the safety of their Black and Brown constituents who are so frequently the targets of police misconduct.

This weekend the Trump administration released a 332-page report purporting to offer recommendations on police reform. The findings of this sham commission — composed primarily of police and prosecutors — show what most already knew to be true. The Trump administration never had any plans to implement transformative changes to policing that would curtail police violence, truly hold law enforcement accountable, or conduct any legitimate federal oversight of even the most troubled law enforcement agencies. This report was never meant to enhance safety for all communities; it was meant to advance the Trump administration’s “law and order” political agenda. 

The Trump commission’s flawed recommendations are, in many cases, literally the opposite of what’s necessary to address the epidemic of police violence and mass incarceration. While the Trump commission simply restates a laundry list of recommendations focused on protecting police, here are a few recommendations for what we need to do instead. 

We must transform the role of police and prosecutors in the criminal legal system. 

The Trump commission report demonizes reform-minded prosecutors who use their discretion to choose liberty over incarceration and rehabilitation over punishment. These exercises of discretion — including choosing not to enforce and prosecute certain offenses —are exactly what prosecutors should be doing to help end mass incarceration. So are the efforts to end cash bail and wealth based incarceration that the Trump commission links, without evidence, to increased crime. In fact, states that have transformed their bail systems, such as New Jersey, have not only seen a reduction in the use of cash bail, but also a reduction in incarceration and crime. 

We must stop the use of racist and invasive face recognition technology.

Jurisdictions across the country, including Portland, Boston, San Francisco, and the State of Vermont have halted law enforcement use of face recognition technology. This effort came after recognizing that the racist technology misidentifies people of color at high rates and threatens to supercharge over-policing of communities of color. But the Trump commission calls for an expansion of these dangerous technologies — exactly the opposite of what we need. By ending law enforcement reliance on face recognition algorithms we can limit false arrests of Black men, and ensure community members are free from the threat of pervasive government surveillance every time we leave our homes.   

We must abolish qualified immunity. 

Across the country there has been a bipartisan effort to reign in qualified immunity — a court-created legal defense that shields police officers from liability for misconduct. Once an obscure legal doctrine, it has become a central focus of activists’ calls for police accountability as recognition of the policy as one of the main doctrines used to defend police officers in cases of police violence has grown. Officer Derek Chauvin, the police officer who killed George Floyd by kneeling on his neck for over eight minutes in a video seen around the world, might evade accountability in a civil suit through qualified immunity. By abolishing the doctrine of qualified immunity, many families, victims, and survivors of police violence will have the opportunity to obtain some form of justice in our legal system. Yet the Trump commission flat-out rejects the idea of abolishing or even limiting qualified immunity.

We need to implement enforceable legal guidelines that clarify when police officers can use force against members of the communities they are charged with protecting.  

Policies that limit officers’ use of lethal force so it is used only when absolutely necessary and after exhausting other alternatives such as de-escalation must be implemented on the local, state, and federal level. Instead, however, the Trump commission asserts that “the most effective measure to prevent police from using force remains for citizens to comply with officer commands” and that community members who are being unlawfully abused by police officers should “Comply, Then Complain.” The “comply, then complain” framework means that people in America must bow down to law enforcement, no matter what their behavior may be. This may be true in totalitarian regimes, but in America, the police work for the people.

From its inception, it was clear that the President’s Commission on Law Enforcement and the Administration of Justice was a thinly veiled attempt to use the idea of “police reform” to promote President Trump’s “law and order” agenda, even as historic numbers of people marched in the streets to demand structural changes and an end to police violence. The commission’s goal of “promoting public confidence and respect for the law” was a thinly-veiled threat to advocates and organizers fighting to end police violence. Its mandate to look at “refusals by State and local prosecutors to enforce laws” was a rebuke of the movement to fix a corrupt, punitive, and harmful legal system and its mere composition an attempt by the Attorney General to advance a one-sided agenda. This flawed, bad faith approach should be buried along with the rest of the Trump administration’s terrible ideas on Jan. 20.

When people took to the streets this year to protest racial injustice and police brutality against Black people, they faced a repressive, violent response from local police and federal agents. Some of these agents arrived with militarized uniforms, riot gear, and weapons, but, notably, no visible name labels, badges, or even insignia marking their government agency. Congress just put a stop to this corrosive and undemocratic secrecy, requiring federal agents to identify themselves.

Tucked inside the National Defense Authorization Act (H.R. 6395), which just became law, is a new requirement for federal military and civilian law enforcement personnel involved in the federal government’s response to a “civil disturbance” to wear visible identification of themselves and the name of the government entity employing them. That’s good news, because requiring such identification should be a no-brainer in a democracy. When government employees are interacting with members of the public and exercising government authority, such as the power to arrest people, the public should have the right to know who the employees are and which agency employs them.

Furthermore, when government personnel engage in wrongdoing, such as attacking protesters, one of the first steps in holding them accountable is knowing who they are. It’s no surprise that rights-violating law enforcement would want to obscure their name plate and badge number before committing some unethical or even illegal act. Impeding transparency blocks oversight and accountability.

What the nation witnessed in Washington, D.C. and Portland, Oregon underscores the vital need for the legislation. In Portland, incognito federal officers who refused to identify themselves snatched civilians off the street and whisked them away in unmarked vehicles. Only later did U.S. Customs and Border Protection and the U.S. Marshals Service reveal that they were involved. In our nation’s capital, the Trump administration swarmed the city with heavily-armed, unidentified officers with unclear governmental affiliations. When asked by journalists to give their names or specific governmental affiliation, these federal officers refused.

The resulting images provoked outcries of our government resorting to the kinds of unaccountable “secret police” used by authoritarian regimes to silence dissidents and terrify ordinary citizens into submission. Protesters and security experts also flagged that the unidentified government forces’ appearances can be practically indistinguishable from the kinds of right-wing armed extremists that have, among other things, shot racial justice protesters on the streets of Kenosha, plotted to kidnap Michigan’s governor, and engaged in violent clashes around the country. This creates the risk that members of the public will treat law enforcement agents as illegitimate armed vigilantes, or defer to vigilantes who are posing as law enforcement. 

In an important step forward for government transparency and accountability, lawmakers like Rep. Houlahan and Sens. Murphy and Schumer heeded the calls for reform and sought to ensure that a new identification requirement would be part of the final defense bill. Thankfully, they were successful.

Even with this provision poised for enactment, additional reform is still urgently needed at all levels of government. For example, it is always better to have the officer’s name displayed rather than allowing a non-name identifier, such as a badge number, to be used as a substitute. Names are usually easier to remember than numbers or letters, thus making it easier for people to later identify and report officers. The current exceptions to the new identification requirement should also be narrowed.

Still, the message that Congress is sending to the executive branch and enshrining into statute is unmistakable: Secret police forces patrolling our neighborhoods in response to protests and other mass gatherings, in anonymity and shielded from accountability, are unacceptable. They do not belong in a democracy such as the United States. 

When the next president takes office this month, his administration should affirm the principle as it implements the new law in the strongest possible manner — and keep its goal of a transparent and accountable government in mind as it works with Congress and civil society to respond to the inequities highlighted by the recent protests.