Memorandum
City of Lawrence
City Attorney’s Office
TO: Tom Markus, City Manager
FROM: Maria Garcia, Assistant City Attorney
DATE: April 4, 2018
CC: Toni Wheeler, City Attorney
RE: Public safety cameras
Video surveillance cameras can serve many important purposes, particularly as a crime-solving and crime-prevention tool used by law enforcement. The purpose of this memo is to provide an overview of video surveillance technology specifically for law enforcement by reviewing constitutional issues, open records matters, previous discussions on installing cameras in Lawrence, and finally concerns about cameras raised by the ACLU.
Constitutional Concerns
One theme present in many comments made against the utilization of cameras is a concern for the privacy of individuals who are out and about as well as for homeowners nearby.
The Fourth Amendment to the United States Constitution guarantees citizens to be free from unreasonable searches and seizures by the government. This generally means that where a citizen has a reasonable expectation of privacy—for example inside their home—the government may not search or seize items without first obtaining a warrant supported by probable cause, unless an exception to the warrant requirement applies.
However, courts generally hold that a person does not have a reasonable expectation of privacy when out in public and when engaging in activities that would be visible to the naked eye. See Katz v. United States, 389 U.S. 347 (1967) (holding that what a person knowingly exposes to the public is not subject to Fourth Amendment protection, unless the person seeks to keep something private and has a reasonable expectation of privacy society is willing to acknowledge); United States v. Jones, 565 U.S. 400, 414 (2012) (“a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”).
The 10th Circuit Court of Appeals has previously considered law enforcement use of video cameras, in United States v. Jackson, 213 F.3d 1269, 1280 (10th Cir. 2000). In that case, law enforcement officers installed two video cameras on telephone poles for the purpose of investigating drug activity by the residences of two suspected “leaders” of a drug organization. The cameras were capable of zooming in, particularly to see license tags on vehicles, and could be remotely adjusted. They were not, however, capable of recording sound or seeing into nearby homes. Nevertheless, one of the targets that prompted the use of surveillance videos, defendant Jackson, was ultimately charged with various crimes and argued that the use of such cameras violated her Fourth Amendment rights. Jackson, 213 F.3d at 1279.
The court disagreed with her, holding that law enforcement use of video cameras to record activity that is visible to the naked eye does not generally violate the Fourth Amendment, and that constitutional protections do not extend to activities a person knowingly exposes to the public. The cameras in that case could not see into homes and could only see what any other passerbys could see, so there was no reasonable expectation of privacy in what the cameras recorded. Jackson, 213 F.3d at 1281. See also, Thompson v. Johnson Cty. Cmty. Coll., 930 F. Supp. 501, 507 (D. Kan. 1996), aff'd, 108 F.3d 1388 (10th Cir. 1997) (holding that private security employees did not have a Fourth Amendment right to claim when their locker rooms were being recorded by the employer due to theft and weapons allegations; there was no reasonable expectation of privacy since anyone walking by could look in, the area was not reserved for the employees’ exclusive use, and because the area was not enclosed).
In another example from a district court within the 10th Circuit, the court in United States v. Cantu, 2015 WL 13305874, at *1 (D.N.M. Nov. 13, 2015), considered the installation of a police surveillance camera on a private utility pole about 70 yards from a residential property, for the purpose of investigating drug trafficking around the residence. The camera did not record sound and agents could not view the inside of the residence with the cameras. The camera provided a continuous live feed, with a short delay, to a television screen at a local police station. Agents at that police station could adjust the camera, zoom in or out, and take still photographs of the feed. The camera was monitored by agents during the day when staff was available. Ultimately the cameras captured criminal activity, and the defendant was charged with multiple counts. The defendant argued that the video camera violated his Fourth Amendment rights, but again, the federal court disagreed, holding that the video surveillance did not involve a physical trespass and did not allow law enforcement to observe what was occurring inside the home. For those reasons, the use of cameras was upheld as constitutional. Cantu, 2015 WL 13305874, at *5.
Compare those cases, in which the cameras were installed to view a public place, to United States v. Mesa-Rincon, 911 F.2d 1433, 1435 (10th Cir. 1990), holding modified by United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir. 1997), in which cameras were installed inside a private business. In Mesa-Rincon, officers had to actually obtain a search warrant before installing the cameras since those cameras would not be viewing activities visible to the general public. Rather, the purpose of the cameras was to record conduct related to counterfeiting activities inside. Ultimately the court held that officers had probable cause to obtain a warrant, and that the district court had authority to issue it. The court held that the government demonstrated a “pressing need” for video surveillance, and although the cameras involved a high level of intrusiveness, the expectation of privacy in the building was low enough to be outweighed by the specific showing of need to conduct the surveillance. Mesa-Rincon, 911 F.2d at 1445.
Based upon the established precedent, therefore, it would be proper for law enforcement to install surveillance cameras around Lawrence for the purpose of detecting and deterring crime, so long as the cameras are not used to zoom in to nearby residences or record inside a person’s home. Penalties for violating this rule could include suppression of evidence at trial, which often deters bad police conduct, as well as reprimand for a policy violation and exposure to civil litigation.
Cameras in other Kansas Cities
Several Kansas police department utilize video surveillance cameras. Wichita, for example, had approximately 70 cameras installed recently in Old Town, which is near the downtown area. Many of the cameras are high definition that can zoom in close enough to read a license plate. A command center was established at the Wichita City Hall, where officers view the surveillance videos on multiple large screen monitors.[1]
Ed Klumpp, the former Topeka Police Chief and current Legislative Liaison, has researched the video surveillance issue and reports that several Kansas City-area departments, like Lenexa, Kansas City, and Olathe, utilize surveillance cameras. Both Olathe and Lenexa utilize open surveillance of public places and do not attempt to conceal the cameras, though notice of the cameras is usually posted. The departments are also able to link into private video systems like exterior public areas or internal video from banks and schools, for example. Kansas City, Kansas, generally only links into other governmental systems in public areas, such as traffic cameras. Shawnee, Kansas, only links into private video systems. Finally, Klumpp reports that Topeka links into traffic cameras to obtain video useful for law enforcement.
Kansas Open Records Act
Whether recordings from video surveillance cameras would be open records subject to public disclosure is something that will need to be determined on a case-by-case basis. On one hand, some recordings may only capture the mundane scene of people walking around or shopping. On the other, the cameras may capture a crime in progress. In the latter case, the recording could be withheld under the Kansas Open Records Act (KORA).
Although K.S.A. 45-215 et. seq., declares that public records must be open for inspection by any person unless otherwise provided for in the Act, KORA provides 55 recognized exceptions to the general rule that all records be open to the public. One of the exceptions is under K.S.A. 45-221(a)(10), which allows agencies to withhold criminal investigative records. If a video surveillance camera records a crime occurring, it could very well qualify as a criminal investigative record and not be made public. Compare this to when officers take still photographs of crime scenes. It is the government capturing the scene but those photos become part of the criminal investigation and are generally not made public.
The Kansas Legislature recently recognized that criminal investigative records can be in recorded form and directed that “every audio or video recording made and retained by law enforcement using a body camera or a vehicle camera shall be considered a criminal investigation record.” See K.S.A. 45-254. A person who is the subject of a recording—or their attorney—may request to watch the video, but they are not entitled to a copy of it under KORA. This statute is specific to body and in-car cameras, but may indicate a general understanding that cameras can record criminal activity and that those recordings should not be mandatorily open for the public’s viewing.
Previous Camera Discussions
Whether to utilize video surveillance cameras in Lawrence is not a novel issue—it was discussed at length during a June 2012 City Commission meeting when the Commission considered whether to authorize staff to request federal grant funds for downtown video cameras. The purpose of the cameras, as noted in the staff memo, was to “monitor and manage downtown traffic, parades, and other large activities as well as capture evidence of criminal activity.” The Lawrence Police Department sought to partner with the Douglas County Sheriff’s Office in requesting the funds in order to purchase the cameras and related items needed to install, maintain, and manage video equipment.
A comparison to KU was made at that meeting, as KU at the time had approximately 20-30 cameras used for campus safety. Those cameras were monitored live by part-time students, though the Lawrence Chief of Police stated he did not plan for an officer to watch the videos live. A greater discussion was then had concerning the public’s right to know where the cameras would be placed and how the film would be used and stored. As a result, the Commission voted to allow the police department to request the grant money on the condition that the Commission approve a policy outlining the previously stated concerns. However, the deadline for requesting the grant money was within the month and the matter did not return to the agenda after that. The cameras were never purchased.
ACLU Concerns
Among those offering public comment that evening was a representative from the American Civil Liberties Union (ACLU). The representative provided written material to the Commission at the meeting but did not submit it to the agenda. The document could not be located during a recent search of archived documents saved from Commission meetings. However, the ACLU has identified several issues[2] with surveillance cameras in general and has posted those comments online. In its view, surveillance cameras infringe upon people’s privacy rights and lack real value for law enforcement. The issues and their analysis are below.
Issue 1
Surveillance has not been proven to be effective and the cost far exceeds the benefits. Cameras are often set up to reduce pettier crimes but they rarely accomplish even that. Research by the ACLU and others has shown that public surveillance cameras do not prevent crime, they simply move it elsewhere, outside the eyes of the cameras.
Analysis
Cameras can be effective crime-prevention tools, particularly if they are placed in the right locations and especially if potential criminals know of their existence, though this is less so if the offender is under the influence of alcohol or drugs.[3] Other benefits of video surveillance include:
1. A reduced fear of crime for the public;
2. Aid to police investigations and information gathering;
3. Location management, to either look for lost children, monitor traffic flow, public meetings, or demonstrations that may require additional police resources, or to determine if alarms have been activated unnecessarily which can save police resources in responding. Cameras have also been shown to reduce assaults against police because police can better gauge what type of response is needed for an incident.[4]
However, while cameras can be useful for preventing property crimes like the burglary of a business, criminals do adapt and can, for example, take their drug transactions elsewhere and outside of the camera’s view.[5] Other disadvantages to cameras include increased suspicion or fear of crime by people who feel the government is “spying on them,” and an increase in crime reporting which may inundate the police with calls for service.[6]
On the other hand, cameras have been proven useful in Lawrence recently. In a Lawrence Journal World article from February 25, District Attorney Charles Branson was quoted as stating that cameras placed on private businesses and buildings downtown were instrumental in solving a triple homicide that occurred in that area last fall.[7] And the Lawrence Police Department does install temporary cameras downtown each year during the Final Four celebrations to assist with crowd control and to identify larges influxes of people so that the department can best position its resources if needed. The department also uses the cameras during the Final Four to identify, as early as possible, potential problems like people climbing buildings or on top of cars, or any fights that break out. In those instances, a prompt response is warranted to ensure the public’s safety.
Accordingly, there are numerous advantages and disadvantages to having video surveillance technology, and the question boils down to which side outweighs the other.
Issue 2
Cameras present a potential for abuse by law enforcement, whether it is to spy on someone for personal reasons or to blackmail a person. An example ACLU provides is a person who was seen walking into a private area. Cameras that are installed for one purpose, like looking for crime in public areas, can later be used for other purposes like tracking participants in political rallies or even peering into people’s homes. The ACLU argues that other, more effective alternatives exist to deal with concerns about crime, including improved lighting and increased police presence.
But it also offers a solution to its own issue here by also stating that if cameras are utilized, rules should be implemented to establish a clear public understanding of when cameras are used, how long video is stored, what criteria must be established for accessing an archived video, how such rules would be enforced, and what type of penalty would be assessed for violations. The ACLU also recommends, as it did when cameras were installed around Seattle, Washington, that an audit of the cameras’ effectiveness be conducted after 21 months.
Analysis
At the June 2012 City Commission meeting, the Chief of Police noted that the department has general policies about use of law enforcement systems for public use. He noted that any tool can be used in a perverse way but that it must be engrained in the department’s culture that such conduct is not allowed. A policy dedicated to video surveillance cameras specifically can be drafted to address the concerns listed above.
Issue 3
There is a lack of limits or control on the cameras. For example, police will always want to keep up with changing technology, so where does the line get drawn before high-resolution cameras that can see small writing or perform facial recognition are introduced?
Analysis
This concern can be addressed through City Commission meetings. The Commission can accept public comment on what types of cameras the public is comfortable with and provide direction on which cameras to purchase. Additionally, the cost of advanced surveillance technology can be significant and the cost alone will prevent replacements and upgrades from occurring too often.
Issue 4
Cameras would have a chilling effect on people, who would be more conscious about what they read in public and how they dress or appear so as to avoid becoming a target for police. What surveillance cameras overwhelmingly capture are the innocent activities of law-abiding citizens. The ACLU alleges that Great Britain now has more than four million public cameras. In London, the average person is now captured on video camera 300 times a day.
Analysis
It is widely recognized that the public is being watched via surveillance cameras in many commercial and semi-public establishments like banks, casinos, convenience stores, and shopping malls. It is estimated that approximately three-quarters of small businesses record visitors with surveillance cameras, and that there are cameras with a zoom function so advanced that they are capable of recognizing the small print on license plates on moving vehicles.[8]
Additionally, one of the Commissioners at the June 2012 recognized this new trend by stating that he feels desensitized from being watched. He likened Massachusetts Street to a shopping mall, in that there are few places one can go these days without being on camera. He recognized that people’s rights are important but that the ability to solve crimes is “pretty powerful” as well, acknowledging that the chief of police was looking for ways to make the community safer.
Cameras are also prevalent on private property. Doorbells that video record visitors ringing the doorbell or even walking near the front door are becoming increasingly popular.
The value of police surveillance cameras should be weighed against the concern of capturing people’s everyday lives. If the Commission is interested in hearing the community’s thoughts, perhaps a Lawrence Listens could be launched to hear feedback.
Conclusion
There are many advantages and some disadvantages to installing police surveillance cameras. Many of the public’s concerns are valid, though not always grounded in Constitutional law. Whether to install cameras is a policy decision that should be made after thorough discussion and careful drafting of policy to ensure that the cameras are not abused by law enforcement.
[1] Dion Lefler, If You Think Someone’s Watching You In Old Town – They Are, The Wichita Eagle, June 22, 2017, http://www.kansas.com/news/local/crime/article157654759.html
[2] What’s Wrong With Public Video Surveillance https://www.aclu.org/other/whats-wrong-public-video-surveillance (last visited March 1, 2018).
[3] Ratcliffe, Jerry. Video Surveillance of Public Places, Problem-Oriented Guide for Police, Response Guides Series No. 4. Washington D.C.: U.S. Department of Justice Office of New Community Oriented Policing Services, 2006., page 9.
[4] Id. at 11-13.
[5] Id. at 14-15
[6] Id. at 15.
[8] Video Surveillance of Public Places, Problem-Oriented Guide for Police, Response Guides Series No. 4., page 1