Right to Record Police Makes Common Sense
by TYLER WATTS, Ph.D.
On the morning of March 3, 1991, Rodney King was infamously beaten by four Los Angeles police. A bystander captured the episode on tape in what would become the first of many video-recorded instances of alleged police brutality. Did the LAPD use excessive force in the Rodney King incident? It’s a tough call on which reasonable people might disagree — after all, two different juries reached opposite verdicts on the charges against two of the officers.
I’m not here to indict the police or criticize “the man” for keeping people down. But I do wonder this: If those officers had known at the time that they were being recorded, and that their questionable actions would be posted online for all the world to see, might they have acted differently?
I don’t think there can be much debate on the core principle at play here: We all behave better when we know someone is watching. Many of us believe that God is always watching, and indeed will use His perfect knowledge to judge us in the end. But for some people, a more immediate eye might be required to curtail bad behavior. While it is already perfectly legal for Hoosiers to openly record others’ actions and conversations in public, legislation similar to that introduced by Senator Jim Banks (R, Columbia City) is attempting to strengthen citizens’ ability to record public servants. Specifically, the proposed “right to record” laws would make police officers personally liable at civil law for interfering with citizens who choose to record them undertaking their official duties.
By cementing the “someone is always watching” principle in our jurisprudence, this law should put the fear of God into law officers, and provide strong incentives for them to actually do their jobs better by respecting more fully the civil liberties of both criminal suspects and innocent third parties.
The idea comports well with one of the biggest lessons in my subject area of economics: “institutions govern incentives.” In other words, the rules that people face are one of the biggest determinants of their decision-making process. When we ratchet up negative feedback individuals might face in consequence of poor decisions, we should expect wiser actions overall. Implementing this practical, effective control mechanism is the main point of “right to record” laws. But it’s also deeply appealing on a philosophical level; after all, allowing citizens maximum freedom to record and document the public actions of their tax-funded civil servants should go without saying in a free society. In this case, as in many others, we can really see how freedom works for a good overall outcome.
Enacting strong “right to record” language in our statutes might seem like common sense for the digital age. But many in the law-enforcement community remain skeptical. Some might protest that citizen recording is superfluous. The police already routinely record routine traffic stops with dashboard cameras, and these official recordings are much more reliable than dim, shaky cell phone videos that might be used opportunistically — for instance, footage showing provocation could be cut and only that showing police response posted online. Yet there are many instances, such as officers pursuing on foot, in which police are incapable of making their own recordings. Shockingly, there have also been several questionable incidents in which officers have either “forgotten” to switch on their patrol car cameras or “lost” the recordings.
A more serious challenge involves officer safety. Critics of “right to record” worry that such laws might suggest that whipping out a cell phone camera generates instant criminal immunity. Will video vigilantes feel empowered to get in the cops’ faces and interfere with their work? This should not be a big problem, though, as obstruction of justice is already a crime. If anything, “right to record” should improve the functioning of law enforcement by creating mounds of potential evidence for police investigations and courtroom proceedings.
But even if a strong presumption in favor of citizens’ right to record does at times make the job of law enforcement a bit more difficult, so what? Life is fraught with trade-offs; if officer safety were the only priority, we could simply allow officers to shoot on sight any person deemed potentially dangerous. Thankfully, we hold certain principles of liberty and justice as higher priorities, and so police officers are required to follow strict and well-defined procedures to protect the rights of criminal suspects. Policing by nature is a dangerous, often deadly job, and for this reason the police are rightfully held in high esteem by honest, upright citizens. But police also have the awesome responsibility and authority to use force — potentially deadly force — against citizens. Measures that systematically encourage them to use this force wisely just make sense, even if they entail a bit more stress for the folks in blue.
Quis custodet ipsos custodies — who will watch the watchers? This question has long vexed lawmakers in civilized society. Now, thanks to the information age and ubiquitous high-quality video recording, the answer is potentially all of us. But this powerful tool will only function well if our state laws allow it to. Indiana can be a leader in upholding civil liberties and demanding accountability from our civil servants by enacting strong right to record legislation.
Tyler Watts, Ph.D., an adjunct scholar of the Indiana Policy Review Foundation, teaches economics at Ball State University.
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