If a picture is worth a thousand words, a video must be worth a million. Until a year ago, though, the law with regard to law enforcement videos was muddy. Some departments took the position that video (particularly of officer-involved shootings) was a personnel record. Some departments released video — sometimes. Those of us in or representing the media took the position that law enforcement videos offered the best evidence of “the circumstances surrounding an arrest” – a category of information that is public by law. Questions remained about access to video when there was no arrest, such as when a suspect was shot and killed.
As most of you know, the law related to law enforcement videos – body cam, dash cam, or otherwise – was clarified effective October 1, 2016. G.S. § 132-1.4A. http://tinyurl.com/GS-132-1-4A All those questions are answered. Law enforcement recordings are neither public records nor personnel records. Recordings can be shown – but not given – to individuals captured in the video but not to anyone else. Anyone who wants a copy of the video – witness, victim and media alike – must petition the court for access. And pay a filing fee. And probably pay a lawyer. The new law took all discretion away from law enforcement and put it in the hands of superior court judges.
Last month, Charlotte-Mecklenburg Police shot Rueben Galindo at his home after he had called 911. http://tinyurl.com/Galindo-Shooting Doug Miller of the Charlotte Observer and Robert Dawkins of SAFE Coalition NC petitioned the court to direct the release of law enforcement video. On October 3, Judge Todd Pomeroy did just that and ordered release of the video by October 6. http://tinyurl.com/Judge-Orders-Release
Judge Pomeroy wrote, “The Recordings, related to an officer-involved shooting that occurred on September 6, 2017, arise from a matter of significant public interest, and release of the Recordings is necessary to advance a compelling public interest.” The judge ruled that release of the video “would not create a serious threat to the fair, impartial and orderly administration of justice, in light of the availability of extensive voir dire at trial, as well as other alternatives available to a trial court for ensuring a fair and impartial jury in the event any criminal charges are brought.” He also found that release would not jeopardize the active internal investigation into the shooting. For these reasons, he ordered the release of the video with only the caveat that the images of minor children should be obscured. (To read the Court’s order, go to http://smvt.com/wp-content/uploads/2017/10/Galindo-Order.pdf.)
Jon Buchan, who represented Miller and The Observer at the hearing, said “We have now had in Mecklenburg County several successful petitions for release under the ‘new’ statute dealing with release of body camera and dash camera videos and other law enforcement recordings, and Doug Miller at The Charlotte Observer has been aggressive and thoughtful about choosing his battles when seeking them. It seems that the importance to the community of transparency in these police-involved shootings has become apparent to CMPD and to our courts.”
Dash cam and body cam video is different from other law enforcement records, and it should be public. Videos from dash cams and body cams are little more than a bare naked, honest recording of what has taken place. They offer an un-edited and un-editorialized account of an event. None of us has an expectation of privacy as we travel public streets and sidewalks. In this age, when more than 90% of adults and 97% of people under 44, have cell phones (Pew Research Center’s Internet & American Life Project), we are subject to being watched, recorded or videotaped during almost all of our time in public. “Invasion of privacy” arguments don’t justify keeping dash cam and body cam video from public view.
More than 30 years ago, Chief Justice Burger wrote, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers Inc. v. Virginia. Let’s hope that more judges like Judge Pomeroy weigh the merits of releasing law enforcement video and conclude that as a society we are more informed and better citizens when our government is transparent.
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Stevens, Martin, Vaughn & Tadych, PLLC
Providing legal counsel to traditional and social media and strategic communicators