The new law state law concerning police body-worn and dash camera videos, which was signed into law this week by Gov. Pat McCrory and goes into effect on Oct. 1, doesn’t look very good from an open government point of view, but it’s far better than what we have now.
Body-worn cameras, which are an expensive proposition, were sold to the public on the grounds of transparency: People would be able to see for themselves what happened in controversial and even noncontroversial cases. The idea that was promoted was that body-worn cameras would give the public a much clearer picture of what police officers face every day, as well as how they actually interact with the public as opposed to how the police say they do and how people say they were treated.
That has turned out to be far from true. Greensboro has had body-worn cameras for three years and so far one body-worn-camera video has been released to the public. That is the video of the Chieu Di Thi Vo shooting. It was released after a great deal of controversy, and the hoops that had to be jumped through to release it demonstrated how difficult it was to legally release a video that everyone in city government was in agreement should be released.
That video also proved how valuable releasing actual videos from body-worn cameras can be in affecting public opinion. The question many people had was why would a police officer shoot a small, mentally troubled Vietnamese woman. The answer was in the video, and it is because she was running straight towards Greensboro Police Officer Tim Bloch with a big knife and didn’t slow down when he pointed his gun at her and ordered her to drop the knife.
She could have saved her own life by either stopping or dropping the knife, but despite the fact that a uniformed police officer was pointing his gun at her and yelling at her to drop the knife, she did neither. Whether or not she could understand what Officer Bloch was saying didn’t appear relevant. When a uniformed law enforcement officer points his gun at you and yells, whether a person understands the words or not, most people would stop what they were doing and put their hands in the air.
But for that video to be released, Bloch, who had since resigned from the Police Department, had to agree to have it released, and the Greensboro City Council had to view the video in closed session and vote to release the video, and City Manager Jim Westmoreland had to agree that it should be released “to maintain public confidence.”
According to state Rep. John Faircloth from High Point, a retired High Point police chief and a former High Point city councilmember, the new law was designed to streamline the process of releasing a body-cam video, and it does that.
Faircloth noted that under the current interpretation of the law, no one had the right to see the video except for the officer and his superiors.
He said that he had been working for over two-and-a-half years to get a law on the books that would allow the release and had two groups with diametrically opposing views. Faircloth said, “One side wants to have absolutely everything recorded to be posted on the internet. On the other you have some very conservative sheriffs who say, ‘I’ll make the decision on whether it can be released or not.’”
Faircloth said that under the current legal interpretation of the statutes of body-cam videos, all a sheriff or police chief who didn’t want to release a video had to say is that it was a personnel record and it wouldn’t be released. It is also true, however, that even if the chief law enforcement officer wanted to release the video, they didn’t have the authority to do so since it was considered part of an officer’s personnel file.
The new law puts the matter before a Superior Court judge, providing the public with a route to have the video released. Faircloth said he thought that was much more open than the current state of affairs. He said the judge wouldn’t be involved in the issue and could make an independent decision based on the law, which is far different from where things stand now.
The new law has not been viewed by the press as being more open. Of course, the press has had ample opportunity to challenge the legal theory that the video is part of an officer’s personnel file and the press has not.
The Greensboro City Council had planned to ask for a declaratory judgment from a Superior Court judge on the city’s proposed body-worn camera video policy, but since state law trumps a city ordinance there seems to be no need for that now.
The new law also gives anyone who is in a police body-cam video the right to view it, which they don’t have now.
They can get a copy of it if they go to court and get it released by a judge, but they do have the right to view the video (without receiving a copy) without going to court.
The chief law enforcement officer can approve a person appearing in a video, or their attorney, to view it. And in the case of a child, their parents or guardians can request to view it. If that request is denied, the person in the video can appeal that decision to a Superior Court judge. At present, a person who appears in a police body-cam video has no right to see it and the video can only be released if it is decided that it is a matter of maintaining public confidence.
The interpretations of the status of body-warn camera videos are currently different in different jurisdictions. Under the new law, there is one statewide standard and procedure for releasing the videos, whether it’s in Charlotte, Greensboro or Beaufort.
In Greensboro under the current city policy the people in the video have no right to see it if they are not charged with a crime. If they are charged with a misdemeanor they can view the video but are not allowed to have a copy. Only if they are charged with a felony are they allowed to obtain a copy of the video. So under the current city policy criminals have more rights to see videos than people who are not charged with a crime.
For example, if a person were stopped by police, searched and put in handcuffs to sit on the curb while their car was searched, if nothing is found and that person is then released they have no right to see the video. However, if the search turns up drugs, an illegal weapon, stolen property or some other offence that leads to charges, that person charged with a crime has a right to see the video. It seems backwards for people charged with crimes to have more rights to police information than those who are not, and this law does fix that inconsistency, giving those who are charged with crimes and those who aren’t the same rights.
However, under the current laws of criminal discovery, anyone charged with a crime where the video would be used as evidence would have a right to the video without going before a judge.
Under the new law, anyone who is on a video has a right to see it and the right to go before a judge and request a copy.
Faircloth said the court process is supposed to be streamlined. Superior Courts will have forms for people requesting to see videos to fill out and the matter is supposed to be expedited by the courts, meaning an answer should be given in a couple of days. If there is no opposition from law enforcement or the district attorney’s office then it would seem that the video would be released as a matter of course.
Also under the new law, anyone can go to Superior Court and request a copy of a video. Under the current policy there is simply no process for that.
However, what the judge who determines whether or not to release a video is to consider in making that decision is broad. The law lists eight factors that are to be considered. They are:
“1. Release is necessary to advance a compelling public interest.
“2. The recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law.
“3. The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding.
“4. Release would reveal information regarding a person that is of a highly sensitive nature.
“5. Release may harm the reputation or jeopardize the safety of a person.
“6. Release would create a serious threat to the fair, impartial, and orderly administration of justice.
“7. Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.
“8. There is good cause shown to release all portions of a recording.”
Under the current interpretation of the law, where the video is part of a police officer’s personnel file, maintaining public confidence is the only reason a video can be released.
It would appear that the law enforcement agency could go to court in any case and claim that the release could harm an investigation or a potential investigation, but the judge could still release it. If a law enforcement agency regularly claimed that every video would damage an ongoing or potential investigation, it is likely it would start having less credibility with the judges involved.
Faircloth said that he sees the judge as the buffer between the two sides that see release of the videos from completely different perspectives. He said that having a judge make the decision should take care of the privacy concerns that were expressed. A judge will decide if the privacy concerns are valid and if they outweigh the public interest in releasing the video.
Faircloth said, “I think it’s workable. If somebody wants to see the images on a video they should be able to with very little trouble.”
Faircloth said that he didn’t see the request for release of a video as the type of action that would require hiring an attorney. He said that it should amount to filling out a form and, unless there is some reason not to release the video, it should be released in a matter of days.
He said that in the case of the Vo video, the City Council would no longer have the power to release the video, but like anyone else the City Council would have the right to request that a judge release the video. In that case, according to the way Faircloth sees the law, it should have been released promptly, perhaps quicker than it was since it wouldn’t require a vote of the City Council. The police chief or, for that matter, anyone could have requested that it be released.
Faircloth said that the legislature did check with the Administrative Office of the Courts and were told that this law would not put an undue burden on the courts. But, of course, that does depend on how many requests for videos there are and how the courts decide to handle the cases.
Faircloth said, “Is the bill perfect? No. But people need to give it a chance to work before forming an opinion.”
He also said he saw this bill as a work in progress. The difficult part, he said, was finding a bill that he could get enough agreement on to get passed. He said that the legislature will be back in session in January and if the bill needs tweaking, they will start working on it again.
He said, “I think anything that deals with a new policy in a new area like this is a work in progress.”