Law hand­cuffs ef­forts to get po­lice video

In last year, Pa. state troop­ers granted just 2 of 16 re­quests for record­ings

The Morning Call (Sunday) - - FRONT PAGE - By Ri­ley Yates

Dash cam­era videos have cap­tured po­lice at their very best and their very worst. They’ve roiled com­mu­ni­ties in which un­armed sus­pects were gunned down by of­fi­cers. They’ve also shown po­lice act­ing bravely when con­fronted with the vi­o­lence that is in­evitably part of their jobs.

But in Penn­syl­va­nia, the pub­lic’s right to those record­ings is so re­stricted as to be vir­tu­ally nonex­is­tent. That was the warn­ing open records ad­vo­cates is­sued last year when the Leg­is­la­ture voted to ex­empt po­lice au­dio and video record­ings from the state’s rightto-know law. They cau­tioned the new rules would all but pre­vent the pub­lic from ac­cess­ing videos doc­u­ment­ing of­fi­cers’ ac­tions and in­ter­ac­tions on their beats.

Ac­cord­ing to state po­lice records, that is largely what has hap­pened.

In a year since the law took ef­fect in Septem­ber 2017, Penn­syl­va­nia State Po­lice pro­cessed 16 re­quests for record­ings made by troop­ers, but granted just two of them, ac­cord­ing to doc­u­ments ob­tained by The Morn­ing Call through a right-to-know re­quest.

Those seek­ing videos in­cluded the me­dia, mem­bers of the pub­lic, in­sur­ance com­pa­nies and law firms. The re­quests asked for record­ings that doc­u­mented troop­ers pulling over drunken driv­ing sus­pects, re­spond­ing to some­times fa­tal ac­ci­dents or tick­et­ing driv­ers af­ter traf­fic stops — among other en­coun­ters in­volv­ing po­lice.

But one by one, the an­swer was usu­ally no.

Eight of the re­quests were de­nied on the grounds the record­ings were po­ten­tial ev­i­dence in crim­i­nal mat­ters. Five were de­nied be­cause no videos ex­isted, and one be­cause the record had been ex­punged by court or­der.

Of the two videos that were

re­leased, one was sent to a Mon­roe County wo­man who was cited in Septem­ber in Polk Town­ship for al­legedly driv­ing with no head­lights, no rearview mir­ror and ob­scured plates and win­dows.

The other in­volved a Me­chan­ics­burg, Cum­ber­land County, man who said he was in­volved in a com­mer­cial ve­hi­cle ac­ci­dent in May that troop­ers re­sponded to.

“Our pol­icy is if it’s a sum­mary traf­fic [of­fense] and there’s no, how do you say, crim­i­nal el­e­ment in it, we tend to pro­vide those,” said William Rozier, state po­lice’s open records of­fi­cer.

While pub­lic records ad­vo­cates say it is good to hear that even a lim­ited num­ber of videos are be­ing re­leased, they call it a far cry from the trans­parency that some states de­mand of their po­lice at a time of height­ened scru­tiny of law en­force­ment.

“The rea­son that body and dash cam­era video is cre­ated in the first place is as an ac­count­abil­ity tool,” said Melissa Melewsky, an at­tor­ney for the Penn­syl­va­nia News­Me­dia As­so­ci­a­tion, a news­pa­per trade group that op­posed the changes. “If there is not pub­lic ac­cess, there is not ac­count­abil­ity.”

The law, known as Act 22, ex­panded re­stric­tions on the re­lease of po­lice video and elim­i­nated the pre­sump­tion that they are pub­lic records. A re­quest for a record­ing must be made within 60 days of its pro­duc­tion, and po­lice are granted even wider lat­i­tude to deny the re­lease of record­ings they deem to be part of an in­ves­ti­ga­tion.

Aau­thor­i­ties can keep record­ings se­cret if they con­tain “po­ten­tial ev­i­dence in a crim­i­nal mat­ter” or “in­for­ma­tion per­tain­ing to an in­ves­ti­ga­tion.” The law also changed the ap­peal process, and those de­nied videos must sue in court to chal­lenge the de­ci­sion — in­stead of turn­ing to the Of­fice of Open Records, an ad­min­is­tra­tive body that over­sees the right-to­know law, but is more user­friendly and charges no fee.

Act 22 was part of a push by law­mak­ers to en­cour­age the use of body and dash cam­eras, which sup­port­ers say im­prove pub­lic trust in law en­force­ment, as­sist in in­ves­ti­ga­tions and pre­serve a record that pro­tects of­fi­cers from un­war­ranted al­le­ga­tions of mis­con­duct. The law closed a loop­hole in the state’s Wire­tap Act by al­low­ing po­lice to use body cam­eras in pri­vate res­i­dences — a crit­i­cal step for de­part­ments in­ter­ested in equip­ping of­fi­cers.

Sup­port­ers say the law’s new re­stric­tions rec­og­nize a ba­sic re­al­ity: that po­lice record­ings are dif­fer­ent from other govern­ment records, and raise le­git­i­mate safety and pri­vacy con­cerns for po­lice and crime vic­tims.

“The pro­vi­sions in Act 22 that ex­empt cer­tain record­ings from re­lease to non­in­volved par­ties are cru­cial for law en­force­ment to main­tain the in­tegrity of crim­i­nal in­ves­ti­ga­tions,” Ryan Tarkowski, a state po­lice spokesman, said in a pre­pared state­ment. “Ad­di­tion­ally, they pro­tect the pri­vacy of vic­tims, wit­nesses and by­s­tanders.”

Many states are grap­pling with just how pub­licly ac­ces­si­ble po­lice videos should be. Ac­cord­ing to the Na­tional Con­fer­ence of State Leg­is­la­tures, 23 states and the District of Co­lum­bia have en­acted leg­is­la­tion gov­ern­ing their re­lease.

States such as Con­necti­cut, Ne­vada, North Dakota and Texas treat the videos as a pub­lic record, but pro­vide ex­cep­tions — whether to pro­tect po­lice in­for­mants, mi­nors or record­ings made in “pri­vate places,” for in­stance. South Carolina gives law en­force­ment broad dis­cre­tion to de­cide whether a record­ing should be re­leased. Louisiana pro­hibits re­lease of footage that vi­o­lates a per­son’s rea­son­able ex­pec­ta­tion of pri­vacy.

Act 22 was ap­proved by law­mak­ers just eight days af­ter Penn­syl­va­nia’s Supreme Court opened the door for some po­lice videos to be ac­ces­si­ble un­der the right-to-know law.

The 5-2 rul­ing, is­sued in June 2017, granted a Cen­tre County wo­man’s re­quest for record­ings of a car crash in which her friend was in­volved. The jus­tices re­jected state po­lice’s claims that all dash­board videos are in­ves­tiga­tive records ex­empt from dis­clo­sure, find­ing po­lice had the bur­den to show on a case-by-case ba­sis why a video shouldn’t be re­leased.

The Amer­i­can Civil Lib­er­ties Union of Penn­syl­va­nia op­posed Act 22, say­ing it failed to strike an ad­e­quate bal­ance be­tween trans­parency and pri­vacy. El­iz­a­beth Ran­dol, the group’s leg­isla­tive direc­tor, said the new law cre­ates a “bur­den­some,” “cum­ber­some” and “byzan­tine” process that un­der­mined the mo­ti­va­tion be­hind the push to equip po­lice with body cam­eras.

“This bill cer­tainly falls short, dan­ger­ously short, of up­hold­ing the end of the bar­gain where po­lice body cam­eras will be used as an ef­fec­tive tool for po­lice ac­count­abil­ity,” Ran­dol said.

Beth­le­hem po­lice Chief Mark DiLuzio thinks the law struck that bal­ance.

“The pub­lic does have the right to many things, but at the proper time and place,” he said.

DiLuzio’s de­part­ment is gear­ing up to im­ple­ment body cam­eras next year, com­ing in line with a grow­ing num­ber of Le­high Val­ley com­mu­ni­ties that in­clude Al­len­town. DiLuzio said there are real rea­sons to keep the record­ings out of the pub­lic eye, given the voyeurism en­gen­dered by so­cial me­dia.

“Let’s say your neigh­bor had a do­mes­tic with his wife and they’re in the front yard,” DiLuzio said. “Some­one wants to put it out there and em­bar­rass him and make him move out of the neigh­bor­hood. It brings up is­sues like that.”

DiLuzio said he rec­og­nizes there are cases that have larger pub­lic in­ter­est, but he main­tained that must be weighed against the need to en­sure a fair trial in the jus­tice sys­tem.

“If it’s part of a crim­i­nal case, let it go through the court and let them de­cide whether to re­lease it,” DiLuzio said.

That’s how video of one re­cent high-pro­file po­lice-in­volved shoot­ing wound up be­ing made pub­lic. The dash-cam­era record­ing cap­tured a gun bat­tle last year on Route 33 in Plain­field Town­ship in which Daniel K. Clary opened fire on two state troop­ers dur­ing a traf­fic stop, crit­i­cally in­jur­ing Cpl. Seth Kelly, who nearly died.

The video played a cen­tral role in the June trial of Clary, who was sen­tenced to more than 53 years in prison af­ter be­ing con­victed of at­tempted mur­der. The video was re­leased by the Northamp­ton County district at­tor­ney’s of­fice af­ter The Morn­ing Call sued to ob­tain it, not­ing it had been in­tro­duced as ev­i­dence in court.

That marked a rare in­stance in which po­lice video was pub­lished in Penn­syl­va­nia. State po­lice records show that nine months be­fore, WFMZ-TV in Al­len­town re­quested the record­ing in the im­me­di­ate af­ter­math of the shoot­ing, but was de­nied un­der Act 22 be­cause it was part of a crim­i­nal in­ves­ti­ga­tion.

The same fate be­fell a re­quest by The Morn­ing Call for video of a De­cem­ber stand­off on Den­nis Street in Beth­le­hem Town­ship that en­sued af­ter 35-year-old Justin Kephart killed his mother, then opened fire on po­lice, hold­ing them at bay with two as­sault ri­fles be­fore tak­ing his own life.

Beth­le­hem Town­ship de­nied the re­quest, cit­ing a crim­i­nal in­ves­ti­ga­tion. (The Morn­ing Call filed a sim­i­lar re­quest with state po­lice, but their troop­ers recorded no video or au­dio of the in­ci­dent, the agency said.)

Le­high County District At­tor­ney Jim Martin told re­porters in Au­gust that he will not re­lease footage show­ing for­mer South White­hall Town­ship po­lice of­fi­cer Jonathan Roselle fa­tally shoot­ing an un­armed man dur­ing an en­counter near Dor­ney Park.

Roselle is charged with vol­un­tary manslaugh­ter in the July 28 death of Joseph San­tos of Has­brouck Heights, N.J. Roselle’s at­tor­ney says his client be­lieved San­tos, who was act­ing er­rat­i­cally and jump­ing on cars, was a threat to him and the com­mu­nity.

Roselle’s body cam­era cap­tured the shoot­ing, in which San­tos blurted, “Don’t do it,” sec­onds be­fore five gun­shots sent him crum­pling to the street.

The video has been dis­played pub­licly on one oc­ca­sion — in court, dur­ing a Septem­ber pre­lim­i­nary hear­ing in which a district judge ruled enough ev­i­dence ex­ists for Roselle to face trial.

CON­TRIB­UTED IM­AGE

This photo of a 2017 Route 33 shootout came from po­lice video re­leased af­ter it was used in this year's trial.

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