Elon Law Associate Professor Michael Rich writes for regional North Carolina newspapers about legislation that would change the way footage from police body cameras and dashboard cameras might be released to the public in North Carolina.
The following column appeared recently in the (Greenville, N.C.) Daily Reflector, the Winston-Salem Journal, the Gaston Gazette and the (Burlington, N.C.) Times-News via the Elon University Writers Syndicate. Views are those of the author and not Elon University.
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By Michael Rich – mrich2@elon.edu
They say that information is power, and the North Carolina General this spring will consider who controls the information – and who has the power – when it comes to police dashboard and body-worn camera footage in this state.
A proposed House Bill 972 foolishly gives all that power to the police.
Law enforcement agencies across North Carolina have put cameras on their officers and in police vehicles, justifying the expense on the ground that they will increase transparency and police accountability. Unfortunately, there’s no consensus on how footage from these cameras should be treated under state law.
Civilian groups say that the public should be able to see the footage. Police agencies, however, generally resist disclosure, claiming that the videos are “personnel records” or “records of criminal investigations” that cannot be made public.
House Bill 972 would clarify these issues. It starts on the right foot by recognizing “the importance of the public having confidence and trust in our State and local law enforcement agencies.” It then undermines that trust at every turn.
First, it declares that footage from body-worn cameras and dashboard cameras are not public records. This makes no sense. Under existing law, public records include all “photographs” and “films” made “in connection with the transaction of public business by any agency of North Carolina government.” Body-worn camera and dashboard camera footage clearly fit this definition, and the bill provides no reason for treating this footage different than all other public records.
The bill then gives the “head law enforcement officer” of the relevant agency the sole authority to decide whether footage should be released. This may call to mind the old saw about the fox guarding the henhouse and there’s some truth to that. If police have done wrong, how can the top cop be expected to make the right decision about releasing the footage?
Take the Laquan McDonald shooting, for example. In October 2014, a Chicago police officer shot McDonald 16 times. Police reports claimed that McDonald posed an imminent threat to police. After resisting its release for more than a year, the city made dashboard camera footage of the shooting public, and people could see for themselves that McDonald was shot in the back and while on the ground. The officer responsible for the shooting has been charged with murder.
But even in less controversial situations, the head of a law enforcement agency doesn’t have the perspective needed to decide when disclosure is appropriate. The bill requires him to balance concerns like the “public interest,” people’s reputation and privacy, and state and federal disclosure laws. But police chiefs aren’t experts on the public interest or federal disclosure laws and can’t be expected to find the right balance of these issues.
This approach is particularly absurd because public records laws already exist that strike a balance among these various interests. They allow exclusions to protect criminal investigations and personal privacy. They provide a system for challenging denials of records requests.
Public records laws already can handle body-worn and dashboard camera footage, and if the provisions are lacking, the General Assembly should fix them rather than create a new, ad hoc system.
Take the case of Chieu-di Thi Vo. In March 2014, a Greensboro police officer shot and killed Vo after she allegedly threatened him with a knife. North Carolina’s State Bureau of Investigation viewed body camera footage before clearing the officer of criminal wrongdoing, but the woman’s family has never seen it. Afterwards, the Greensboro Police Department did not allow Vo’s family to see the footage, claiming it was a “personnel record.”
But treating the footage as a public record would have paved the way for Vo’s family to see the footage as soon as the criminal investigation was over. This resolution would have provided the family with closure, put to rest any concerns of a cover-up, and helped to build trust through transparency.
Simply put, House Bill 972 is a mistake. Instead of sticking heads of law enforcement agencies with a decision they’re not qualified to make, the General Assembly should call body-worn and dashboard camera footage what it is—a public record. That way, these powerful tools for transparency can actually fulfill their potential to help heal the bruised trust between police and the civilians they serve.
Michael Rich is the Maurice Jennings Emerging Scholar and an associate professor at Elon University School of Law. Rich researches police investigatory methods and predictive policing.
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