A group of Detroit police commissioners huddled around a computer at police headquarters last week, reviewing mugshots of a shooting suspect captured on video. It was the oversight board’s first look at the department’s facial recognition software — a controversial tool that's been in use without board approval for a year and a half.
Until last month, the technology was shrouded in mystery, with many residents — and even some commissioners — unaware the department was even using it. The confusion stoked fears over mass surveillance and misidentification, giving way to a series of chaotic public meetings that culminated in the arrest of a commissioner for disorderly conduct.
But as Police Chief James Craig showed the commissioners the technology Thursday, their concerns began to dissipate. They learned a technician reviews the software’s results to prevent false matches, and that a match is merely a lead — not grounds for an immediate arrest.
“If we had seen it sooner … it wouldn’t have been as contentious as it was,” commission chair Lisa Carter later told Deadline Detroit.
Though the department has changed course and will now seek commission approval for the technology, Carter says it should have done so before it ever began using it.
Why that didn’t happen has revealed a breakdown in oversight that could have broad consequences in a city where officers are frequently charged with misconduct or wrongdoing.
The department tells Deadline Detroit it believes Craig has “absolute authority” to set rules and decide when and whether to bring them to the board for approval. And though some on the oversight body say they disagree, they’ve ultimately accepted this as the norm, forgoing their authority to set policy and creating what critics call a flawed system that ultimately lets the department police itself.
“The [board’s] passive posture means that the police get to decide what requires oversight and ‘civilian’ input,” says Eric Williams, an attorney with the American Civil Liberties Union of Michigan.
And that’s particularly dangerous in Detroit, experts say, with its long history of police abuse. From 2003-16, the department was under federal oversight for excessive use of force and illegal detentions. In the two years after oversight was lifted, about 3 percent of its officers were charged with crimes — a much higher rate than that of similarly sized cities.
“It falls to the police commission to see if the police department is operating in the way it’s supposed to operate," says Sam Walker, a professor emeritus at the University of Nebraska Omaha specializing in police accountability. “The whole point of this kind of oversight of reviewing policies is that you will have an authority outside of the police department itself reviewing issues that are of great concern to the public to prevent abuse.”
Established by city charter in 1974, the police commission is made up of civilians and former officers. Seven are elected and four are appointed by the mayor. Their duties include disciplining problem cops and reviewing proposed department budgets and policy.
But the department routinely fails to bring policies before the board for approval. Craig says that the majority of its functions are instead governed by “standard operating procedures” — unilateral rules that can cover a wide range of activity. This is done, he says, for the sake of information sensitivity and expediency.
Board approval is sought only in rare instances, when Craig says an initiative or tool represents a “substantial change to the operation of the police department.” He also factors in whether there’s “heightened concern” over the issue. In recent years, the department's use of tasers and body-worn cameras has met that threshold. Rules guiding the use of Project Green Light surveillance — which was sold to the public as a game-changing crime fighting tool — have not.
With tasers, “we knew instinctively this needed to be submitted [to the board],” Craig said last week. A change in uniform was also the type of thing that would go before the board, Assistant Chief James White added.
But the level of subjectivity involved in deciding what merits board — and by extension, public — approval can lead to miscalculations. Craig concedes the department erred when it sidestepped the board on facial recognition.
“Knowing what I know now, we would have done it the way that people expect us to do it,” he said. “But we didn’t see [the backlash] coming; I had not heard a lot of the concern over facial recognition.
“Nothing in [my years] in law enforcement has had this type of response.”’
The technology has faced nationwide scrutiny, with much of the debate centered on privacy concerns. But it’s particularly controversial in communities of color, like Detroit, as studies show it misidentifies African Americans at a higher rate than whites. It also has the potential to reinforce existing biases in the criminal justice system.
San Francisco and Somerville, Massachusetts have banned its use, and other cities have moved to do the same.
Public input means stronger policy
The Detroit Police Department's use of facial recognition is currently governed under a standard operating procedure (SOP) whose language gives officers more leeway than the policy the department proposed after receiving public input.
Though Craig has said facial recognition is used only to investigate violent crimes, permissible uses under the SOP include “to investigate and/or corroborate tips,” “to assist in the identification of potential witnesses,” and “to determine whether an individual may have obtained … identification cards that contain … false information.” The rules also let the system connect to live video — a major point of contention for civil liberties advocates. And if an officer were to abuse the system, it wouldn’t necessarily result in their termination.
By contrast, the pending policy drafted after several commission meetings limits use of the technology to active violent crime investigations, prohibits its use on live video, and says abuse by officers will result in dismissal.
According to Detroit corporation counsel Lawrence Garcia — who represents the police department — “there has never been any legal requirement that each investigative technique must be adopted as a formal board policy in order for it to be used … Absent a Board of Police Commission policy restricting its use, there was nothing inappropriate in DPD using [facial recognition] technology on still photographs.”
The language governing the relationship between the department and board lacks specificity. The charter says “the board shall: In consultation with the Chief of Police, and with the approval of the Mayor establish policies, rules and regulations” and that it’s the police chief’s duty to “Recommend rules, regulations, and procedures to the Board for its approval.”
‘Rubber stamp’ commission
But the board has not fully exercised its power in recent years. For example, though it has the authority to set policy on its own and request the department produce policy for consideration, it has not done so since regaining oversight of the department in the wake of Detroit’s bankruptcy, according to board chair Eva Carter.
Williams, the attorney with the ACLU of Michigan, says the board takes a more passive approach to oversight because some of its members are ex-Detroit police officers and appointed by the mayor.
“Too many commissioners are deferential to the chief,” he says. “The problems here are not bugs, but features of the system.”
Ricardo Moore, a former vice chairman of the board, agreed that many commissioners serve “as a rubber stamp” for the department and Duggan administration.
“The rubber-stamp commissioners don’t read, don’t proactively attend community meetings and show up and vote the way the mayor and chief want them to,” he said
But Carter rejects the notion that the board isn’t doing its job.
“We were elected by our communities, so we know the heartbeat of the community,” she says. “And there are appointees who are not in lockstep with the chief of police, who have their own voice.”
But she also concedes the body could “be a stronger advocate” for city residents, and says she plans to speak with the commissioners about their role in vetting department operations.
Ultimately, however, that starts with gaining a better understanding of what the department is up to. Though the department provides regular briefings on its various initiatives, Carter says the board was unaware it was using facial recognition before last month. For some reason, she says she thought the technology was being used by the Department of Public Works.
Two years ago, the department sought and received unanimous city council approval for its $1-million contract with Data Works, the Virginia company behind the technology. The request involved little debate.
Councilmember Mary Sheffield has since introduced an ordinance that would require the department obtain board approval for surveillance initiatives before they come to council.
The commission is due to vote on the facial recognition policy at its next meeting, on Aug. 8.