This piece was originally published in Slate.

Just one month ago, the world saw a video of Minneapolis officer Derek Chauvin kneel on George Floyd’s windpipe with an eerily calm demeanor, while officers Tou Thao, J. Alexander Kueng, and Thomas Lane acted as the lookout men. Despite what we all saw, however, Hennepin County Attorney Mike Freeman at first refused to arrest or indict any of the four men, insisting, “I will not rush to justice.” This was keeping with his prosecutorial instinct: In his first 16 years in office, Freeman did not charge a single officer for a civilian killing.

After days of relentless local and national protests, Freeman finally brought a third-degree murder charge against Chauvin. Minnesota Attorney General Keith Ellison soon stepped in, announcing on Wednesday that he would enhance the original charge against Chauvin and also bring charges against the three officers who watched and held the crowd back. However, it took a nauseating video, the herculean efforts of protesters, and global outrage simply to trigger criminal proceedings. That is because the local prosecutor’s instinct was to protect the officers he works with rather than the citizens he serves.

Freeman’s initial reaction is a normalized pathology that extends beyond Minneapolis. Many prosecutors around the nation have a toxic, co-dependent relationship with police. Prosecutors and police are more than just institutional allies in law enforcement; they are often partners in the police’s crimes. The seemingly unending list of young Black people killed by police without local repercussions—Michael Brown, Philando Castile, Stephon Clark, Eric Garner, Tamir Rice, Alton Sterling, and more—speaks to this phenomenon’s persistence and national scope. So, while many will focus on the short-term victory of criminal charges, prosecution alone will not prevent the next atrocity. We need a complete overhaul of the prosecutor-police relationship.

As we argued recently in the Boston University Law Review, police exert significant control over prosecutors in both formal and informal ways. For example, in sociological research examining police and prosecutorial practice in Chicago, prosecutors relied on police testimony to win trials, and those trial wins were essential to earning promotions within the office. Prosecutors described an overt pressure to comply with a police culture of “silence and violence” that all but dictated that prosecutors operate with “blinders” on. This meant that questioning an officer’s version of events, whether there was a dead suspect or just a missing bag of drugs, was seen as a sign of “disrespect” to the officer. Conscientious prosecutors who questioned the legitimacy of a police report or the word of an officer could end up with tarnished reputations amongst law enforcement, resistance from officers, and marginalization in the office.

This perverse incentive structure normalized police perjury and created the conditions upon which police misconduct could thrive in small and big ways. These practices stacked the deck in favor of the state in run-of-the-mill prosecutions and often violated the law—both state and constitutional. But, in the most extreme cases, where a suspect was shot or killed, they helped ensure that there was no justice for the victim or community, no accountability for the police, and the officer involved was allowed to continue walking their beat.

Despite the power that police exert over prosecutors, however, prosecutors are not exactly potted plants either. The law gives prosecutors vast discretion to criminally charge and otherwise decide the course of criminal cases. But when police are the ones committing crimes, prosecutors often deploy that power to cover for and effectively encourage the criminality, rather than to combat it and seek justice. After all, prosecutors know where their bread is buttered

This occurs in overt ways, like charging (though later dropping, under pressure) Breonna Taylor’s boyfriend in order to whitewash a murderous no-knock warrant. But it also takes more mundane forms. Failing to disclose a witness statement that contradicts a favorite officer; dropping charges that involve police misconduct, before a judge can hold the officer accountable in open court; even quietly but effectively lobbying against police reform. These subtle manipulations of the criminal justice system allow the gravy train to keep running and, eventually, make the failure to charge an officer like Chauvin not a momentary lapse, but the natural culmination of a career-long partnership. This is why, even if officers like those in Minneapolis—or nationwide—are eventually charged for their crimes, those one-off instances are unlikely to stop police and prosecutors writ large from continuing their mutually beneficial dance.

There are straightforward fixes to this state of affairs, including increased oversight, ending police-protective doctrines like qualified immunity, and electing truly independent prosecutors. When it comes to officers like Chauvin who have a history of complaints, prosecutors can refuse to call them to testify in criminal cases.

However, we need to properly diagnose the problem before discussing solutions. Much like Americans tend to ignore voting rights until election years, or pandemic prevention until after one hits, we tend to scrutinize the prosecutor’s role in police violence only in the wake of high-profile killings. And rarely do we consider police-prosecutor co-dependence as a systemic, national phenomenon, rather than a static, local one. But we need to start.

Only then will we understand how Chauvin could remain so calm and at ease, with his hands in his pockets, as he killed George Floyd—even with numerous cameras and his own bodycam running. Perhaps it was the near assurance that Floyd’s death would be of little importance to his prosecuting counterparts, at least compared with the hundreds of cases they would need Chauvin for in the future. Perhaps he believed that prosecutors would, as so many had before, step in and clean up the scene of his crime.

Somil Trivedi, Senior Staff Attorney, ACLU Criminal Law Reform Project

If there were ever a moment for police body cameras to prove their worth, this month’s protests against police violence should be it. Instead, the protests are revealing the technology’s limitations even as numerous voices call for expanding cameras, including local political leaders from both parties, civil rights groups, public defenders, protesters, and Democratic congressional leaders. Polls, meanwhile, find very high public support for body cameras.
 
But reform advocates should not simply demand hardware. If they want police in their community to wear body cameras, they should demand effective body camera programs, which include not just cameras but also strong policies and institutional practices to make those cameras effective. They should ask themselves whether their department will — or can effectively be compelled to — actually comply with and enforce good policies (preferably enshrined in law) and practices that will ensure that the cameras provide transparency and oversight and don’t become simply surveillance devices.
 
After the shooting of Michael Brown in Ferguson, Missouri and the protests that erupted in its wake, many reformers looked to police body cameras as a critical component of holding police accountable for excessive force abuses. It seemed plausible that the cameras would deter or at least capture evidence of abuses. At a time when the proliferation of bystander videos was increasing awareness of police abuse among many Americans, forcing police to record their own actions seemed like it would improve police behavior and help bring justice when it didn’t.
 
But in the years since, it has become clear that the same impunity from oversight that has given so many officers the feeling that they can break the law — even when being filmed by bystanders — has often rendered body cameras ineffective. While there have been many problems with how body cameras have been implemented (which we attempted to forestall through the body camera policies recommended in our model legislation), the two biggest problems are officers failing to record, and departments refusing to release footage that is recorded.
 
Officers turning off cameras

Body cameras do nothing if they’re not turned on when they should be. There have been too many reports — during the George Floyd protests and before — of police officers failing to record their interactions with the public. The mayor of Chicago cited such failures during the protests, for example, threatening punishment against officers for not recording. There have been many similar reports in New York and other cities. In Louisville, the police chief was fired because officers who killed a man didn’t have their cameras on.
 
This has been a persistent problem since the advent of body cameras. As we have said following prior incidents, police departments need strong, non-discretionary policies that make crystal clear to line officers that they are expected to start filming at the initiation of any law enforcement encounter. And departments need to effectively enforce those policies — something that has clearly been lacking in many departments.
 
We have also called for a presumption against officers in litigation in cases where police should possess body camera footage but don’t (whether because it was never recorded or because it has mysteriously disappeared). Criminal defendants who reasonably claim that exculpatory evidence was not captured when it should have been, or civil plaintiffs suing the government, should have a rebuttable evidentiary presumption in their favor in such cases — in other words, a starting assumption that their claims are correct. Courts should also provide jury instructions that empower juries to discount or disregard police officer testimony when body camera footage should be available but isn’t.

Body cameras raise significant privacy concerns, and there are sensitive questions around when police should turn on their body cameras during protests. We don’t want police to use the cameras to collect video of peaceful protesters, which could chill the freedom people should feel to exercise their First Amendment rights. Indeed, we recommend — and many local policies include — provisions barring the police from recording events such as peaceful protest marches. This has created confusion during events such as the George Floyd protests, which consist of mostly peaceful marches that sometimes include violent police-citizen interactions.
 
But while there may be some gray areas, it really shouldn’t be that hard. If the police are observing peaceful marchers, they don’t need to record. If they decide they need to assert their authority or engage in a law enforcement action of any kind, their cameras should be turned on. Certainly there is zero excuse for police officers failing to record when they are wielding batons or poisonous chemicals against protesters.
 
Departments refusing to make footage public

Another crucial element of an effective body camera program is taking away police department control over the video that body cameras capture. If police departments have discretion over what video footage to release or not release, they (like all bureaucracies) will have a powerful urge to use that power to protect themselves instead of serving the public interest. When police have discretion to release the videos they want, departments often end up releasing the ones that make them look good while withholding the ones that don’t — transforming body cameras from an accountability tool into a propaganda tool.
                            
In Boston, for example, police are refusing to release bodycam footage of recent protests, citing the excuse of “ongoing investigations” — which, as we have explained, in no way justifies withholding footage. In Minnesota, incredibly, footage from the body cameras worn by the officer who killed George Floyd and the officers who were with him has still not been made public. An exception was footage from a Minneapolis Park Police officer who was not directly at the scene, which was only released by that police branch “in an apparent effort to clear the department of being directly involved in the incident.” In a shooting in Louisiana, the authorities showed body camera footage to reporters, but didn’t release it to the public.
 
These patterns of arbitrary, inconsistent, and self-interested releases of footage highlight the problem. Not only should police be releasing body camera footage of critical incidents and those that gave rise to complaints, but it should not be up to them to decide. Where there is a public interest in seeing how police officers are enforcing the law, law enforcement should be required to turn video footage over to the public (with all other footage protected for privacy purposes). That certainly includes video of police enforcement actions during racial justice marches.
 
Some cities have reacted to the pressure from protests by improving their policies, but the public should assume that most police departments will relinquish control over video only very reluctantly. In Washington, D.C., where the police have long stubbornly refused to release bodycam footage even in cases that spark significant public outcry, the D.C. Council passed temporary emergency legislation requiring release of footage, but restricted to cases of “death or serious use of force.” If an officer walks up and clubs a peaceful protester, but doesn’t cause an injury the police define as “serious,” they might refuse to release the bodycam video. Similarly, in New York the mayor recently announced a new policy under which the NYPD will release within 30 days video of officers using force that results in “death or serious physical injury.” That policy, however, also leaves the NYPD with far too much discretion.
 
Beyond the hardware

Some reformers seem too optimistic about the degree to which body camera footage can resolve questions around police use of force. It’s important to remember that like all cameras, bodycams can provide distorted views of incidents and are not an “objective” record of what takes place. Even when all policies are followed, recordings can sometimes be manipulated by officers and provide distorted views of events. They are, however, an independent record that, once captured, does not morph and meld the way human stories and memory can, and is certainly better than solely depending on the word of officers.
 
We’re living in a moment of new possibility for police reform. Those who see body cameras as part of the solution should make sure to push not just for the hardware, but for policies that will make them work for the public.

Jay Stanley, Senior Policy Analyst, ACLU

For activists across the country who have taken to the streets to demand racial justice and police accountability, the sound of protest has been not just the sound of chants, but the sound of helicopters. For many police departments, these protests have been an occasion to bring out all their high-tech toys, and those include surveillance aircraft, ranging from police helicopters to fixed-wing surveillance aircraft to drones. Like all expensive law enforcement practices, police aerial surveillance should be questioned and reevaluated as part of a broader divestment from police in the United States. That is doubly true considering the powerful new surveillance technologies that will increasingly be put into the skies above American cities and towns — if nothing is done to stop them.
 
Last week, U.S. Customs and Border Protection (CBP) was discovered flying a large, high-altitude Predator drone above Minneapolis. CBP has no business deploying military-grade drones — authorized by Congress for border patrol — over domestic political protests, and these drones should not be flying over Minneapolis, or any other U.S. community. Such flights raise questions about the lack of transparency (we don’t know what kinds of equipment the agency had on board), the lack of privacy protections (CBP being a troubled agency with a particular absence of institutional respect for privacy), and mission creep.
 
The Minneapolis large-drone deployment was especially ominous because it involved surveillance of people protesting police abuse — but it’s just the tip of the iceberg. CBP is the only non-military agency that has received permission from the FAA to fly large drones at high altitudes, but it frequently lends out its Predators to other agencies for uses ranging far afield from CBP’s border mission — and from the border. The defense contractor General Atomics is carrying out tests of a similar drone flight over San Diego this year.
 
Of course, surveillance abuses can come not just from drones but also from piloted aircraft. In 2004, for example, a New York City couple was filmed having sex at night on a pitch-black rooftop balcony — where they had every reason to expect privacy — by a $9.8 million NYPD helicopter equipped with night vision that had been deployed to monitor a nearby bicycle protest. Rather than apologize, NYPD officials flatly denied that this filming constituted an abuse, telling a television reporter, “This is what police in helicopters are supposed to do, check out people to make sure no one is . . . doing anything illegal.”
 
More recently, we have seen piloted airplanes used for long-term, mass surveillance over the entire city of Baltimore using wide-area motion imagery. This is just the latest surveillance technique to be deployed against communities of color, and is a clear violation of residents’ constitutional right to privacy. A historic legal battle over the program is now underway as the result of an ACLU legal challenge.
 
The FBI also regularly flies “a small air force” of surveillance aircraft above American cities — including over protest marches such as those in Ferguson, Missouri and in Baltimore following the 2015 death of Freddie Gray in police custody. The planes are typically registered to front companies to hide their identities as government planes. In addition to the CBP drone in Minneapolis, the Department of Homeland Security deployed piloted surveillance aircraft over George Floyd protests in Washington, D.C. and 13 other cities, sending video to a centralized CBP facility, letting federal agents view live aerial footage on their phones, and storing the footage for potential use in criminal investigations.
 
Ultimately, the answer is for communities — and the federal government — to put in place strong privacy protections that apply equally to drones and piloted aircraft.
 
Today, police helicopters — which first appeared in the late 1940s — have become a well-established law enforcement tool in many cities. Police helicopters and fixed wing aircraft are used for a variety of purposes including patrol, pursuit, search and rescue, and surveillance.
 
But police helicopters are also used to intimidate through a militaristic display of raw power. That role was epitomized by the use of a military Blackhawk helicopter last week to disperse peaceful racial justice protesters in Washington, D.C. by hovering low over a street, creating wind gusts strong enough to snap tree limbs. Experts call this tactic a “show of force” and say it’s a common military tactic to “intimidate and remind potential enemies of your armed presence.”
 
Beyond such a clearly abusive deployment, however, even civilian police helicopters can have a similar effect. Police helicopters — many of which are military surplus aircraft — are large, loud machines, heavily associated with military weaponry and which, by virtue of their position in the sky, signify surveillance, dominance, and control. In at least some places they are consciously used by police for the purpose of deterring crime — which might sound like a good thing until you pause to reflect that they do so by making all residents of certain neighborhoods feel as though they are being watched by an overpowering occupying force. And those neighborhoods aren’t affluent white ones.
 
American communities should take a hard look at their police departments’ aerial surveillance programs as part of an overall reassessment and divestment from law enforcement. How beneficial are they really for the community as a whole? Are their benefits proportional to their cost — including the opportunity cost of underfunding social programs to support expensive aircraft? To what extent are they used in positive ways such as for search and rescue, compared to negative ones such as “dominating” people exercising their First Amendment right to peaceably assemble? Do they fit into positive community visions that stress support, uplift, and assistance, rather than the harsh hammer of a militarized enforcement approach?
 
For many communities, the answer will be no, and those communities should end their aerial surveillance programs. Maybe others will decide to allow their law enforcement departments to retain aerial surveillance capabilities — but those should be re-focused, regulated, and scaled back.
 
Regulations should ensure transparency so communities can decide for themselves what kind of surveillance the police departments that serve them are deploying. For no justifiable reason, CBP refused to say what agency it was flying its Predators over Minneapolis on behalf of and whether it was a federal or state agency. (The New York Times reported weeks later that it was for a branch of Immigration and Customs Enforcement.) We also don’t know what kinds of surveillance technologies those drones are carrying. The U.S. House of Representatives has launched an investigation into the case, but shouldn’t take a congressional investigation to get such information.
 
The privacy protections for all aerial surveillance that we think are necessary (which we have previously laid out with regard to drones) would not allow for aerial mass surveillance of any kind, including wide-area surveillance and the use of Dirtboxes — electronic dragnets that sweep up people’s cell phone data. In general, communities should engage in careful monitoring and regulation of the devices that are installed on law enforcement aircraft. Police also shouldn’t be permitted to engage in suspicionless aerial surveillance — flying around aimlessly looking for trouble based on the hunches or curiosity of their pilots, or for any other form of patrol. Where aerial surveillance is used it should be carried out only in emergencies, for specific purposes that don’t implicate privacy such as accident- or crime-scene photography, or where there are specific and articulable grounds to believe that the aircraft will collect evidence relating to a specific instance of criminal wrongdoing (preferably through a warrant requirement as in some states such as Minnesota).
 
Law enforcement will argue that it needs aerial surveillance to achieve “situational awareness” across large areas during times of civil unrest and/or large protests. Communities should do a hard examination of that claim. Just how often does law enforcement have a legitimate need for that kind of surveillance? Can the aims of such flights be achieved through ground observations or other techniques that have lower costs, fewer chilling effects on protest, and less risk of lending themselves to abusive surveillance? If and when there is a genuine need for aerial surveillance, are high-tech surveillance devices necessary, or can that need be met through plain-view visual surveillance? And how much is the community paying for what is most likely a rarely-needed capability?
 
Good privacy protections are especially important given the futuristic surveillance devices that are now available. Drones and other aircraft are a platform — one that can be used to carry any number of other technologies up into the sky. Among the sensors they can carry are GPS, radar, range-finders, magnetic-field change sensing, sonar, radio frequency sensors, and chemical and biochemical sensors. They can carry Lidar, which can be used to see through some barriers such as foliage and for such functions as change detection, in which even small changes in a landscape, such as tire tracks, are automatically flagged. And of course, aircraft can carry all kinds of cameras, including super-powerful gigapixel lens arrays that can sweep in enormous areas, and infrared sensors that “see” beyond the visual part of the electromagnetic spectrum.
 
Perhaps most significantly, camera footage and other data can increasingly be analyzed using face recognition, license plate recognition, and other artificial intelligence techniques that promise to supercharge the analysis of datasets that are too large for humans to reasonably review. That’s not even counting whatever technologies may be developed in the future.
 
Given the role that aerial surveillance has played in the George Floyd and other protests, as well as the tsunami of new aerial surveillance technologies that are coming our way, such capabilities should be part of the conversation over police divestment that the recent protests have sparked.

Jay Stanley, Senior Policy Analyst, ACLU