Po­lice videos of­ten kept from pub­lic

The Star Democrat - - FRONT PAGE - By RYAN J. FOLEY

IOWA CITY, IOWA (AP) — The video is brief but dis­turb­ing: An of­fi­cer is seen hit­ting an un­armed sus­pect with his pis­tol as the man falls into the grass. An au­topsy would later show that he died from a gun­shot to the back of the head.

Af­ter the death last July of 26-yearold Daniel Fuller in Devils Lake, North Dakota, in­ves­ti­ga­tors de­scribed the video to his griev­ing rel­a­tives. But for days, weeks and then months, they re­fused to re­lease it to the fam­ily or the pub­lic. They did so only af­ter a pros­e­cu­tor an­nounced in Novem­ber that the of­fi­cer did not in­tend to fire his gun and would not face crim­i­nal charges.

“It took for­ever for them to re­lease the video be­cause they kept say­ing it was an on­go­ing in­ves­ti­ga­tion,” said Fuller’s older sis­ter, Allyson Bartlett. “I don’t think they wanted pres­sure from the com­mu­nity.”

Her ex­pe­ri­ence is typ­i­cal. An in­ves­ti­ga­tion by The As­so­ci­ated Press has found that po­lice de­part­ments rou­tinely with­hold video taken by body-worn and dash­board-mounted cam­eras that show of­fi­cer-in­volved shoot­ings and other uses of force. They of­ten do so by cit­ing a broad ex­emp­tion to state open-records laws — by claim­ing that re­leas­ing the video would un­der­mine an on­go­ing in­ves­ti­ga­tion.

Dur­ing the last five years, tax­pay­ers have spent hun­dreds of mil­lions of dol­lars to out­fit of­fi­cers’ uni­forms and ve­hi­cles with cam­eras and to store the footage they record as ev­i­dence. Body cam­eras, in par­tic­u­lar, have been touted as a way to in­crease po­lice trans­parency by al­low­ing for a neu­tral view of whether an of­fi­cer’s ac­tions were jus­ti­fied. In re­al­ity, the videos can be with­held for months, years or even in­def­i­nitely, the AP re­view found.

To be sure, some de­part­ments vol­un­tar­ily re­lease videos of high­pro­file in­ci­dents, some­times within days or weeks. They also are forced to share them dur­ing civil rights law­suits or air them when sus­pects face trial. Many also rou­tinely re­lease videos that show of­fi­cers in a pos­i­tive light, such as when they res­cue peo­ple from ac­ci­dents, fires and other dan­gers. But how re­quests are han­dled when they are re­quested by cit­i­zens, re­porters and gov­ern­ment watch­dogs varies widely.

The AP tested the pub­lic’s abil­ity to ac­cess po­lice video for Sun­shine Week, an an­nual cel­e­bra­tion of open

gov­ern­ment, by fil­ing open records re­quests re­lated to roughly 20 re­cent use-of­force in­ci­dents in a dozen states.

They were met with a se­ries of de­nials and failed to un­earth video of a sin­gle in­ci­dent that had not al­ready been re­leased pub­licly. Some videos could be re­leased in com­ing months or years once crim­i­nal and dis­ci­plinary in­ves­ti­ga­tions are con­cluded. By then, the pub­lic in­ter­est in know­ing what hap­pened may have waned sig­nif­i­cantly.

In re­ject­ing or de­lay­ing the re­quests, most law en­force­ment agen­cies and pros­e­cu­tors cited ex­emp­tions that al­low them to keep records of pend­ing in­ves­ti­ga­tions se­cret. One county claimed the ex­emp­tion would al­low it to keep the video of a mo­torist’s fa­tal shoot­ing se­cret for­ever — even though the in­ves­ti­ga­tion has con­cluded and cleared the deputy in­volved.

Crit­ics say the ex­emp­tion is of­ten mis­ap­plied to keep from pub­lic view video that might shine an un­fa­vor­able light on the ac­tions of of­fi­cers. The ex­emp­tion is in­tended to pro­tect sen­si­tive de­tails about in­ves­ti­ga­tions that might tip off sus­pects that they are un­der scru­tiny or alert them to what ev­i­dence po­lice have ob­tained. But when of­fi­cers shoot or oth­er­wise use force on sus­pects, they know their ac­tions are the fo­cus of the in­ves­ti­ga­tion and of­ten have ac­cess to the videos of the in­ci­dents.

“It is for that rea­son that the in­ves­tiga­tive records ex­emp­tion lit­er­ally makes no sense and should have no place when it comes to po­lice body cam­era footage. It is a square peg in a round hole,” said

Chad Mar­low, an ex­pert on laws gov­ern­ing body cam­eras at the Amer­i­can Civil Lib­er­ties Union. “We didn’t know that would end up be­ing the get-out-of-FOIA free card for po­lice de­part­ments, but it has cer­tainly turned into that.”

Au­thor­i­ties say they have good rea­son for with­hold­ing video dur­ing in­ves­ti­ga­tions, such as pre­vent­ing the mem­o­ries of wit­nesses from be­ing tainted or spark­ing protests with an out-of-con­text snip­pet of a deadly en­counter. But the prob­lem, said for­mer fed­eral pros­e­cu­tor Val Van Brock­lin, is that “there is no na­tional stan­dard of when and how this stuff gets re­leased.”

“It’s such a mish-mash, and that cre­ates a prob­lem with ex­pec­ta­tions,” she said. ———

In West Vir­ginia, a pros­e­cu­tor with­held a video that led to the fir­ing of two state troop­ers for al­legedly beat­ing a 16-year-old sus­pect. In Ge­or­gia, a county sher­iff’s of­fice re­fused to re­lease video of a 22-year-old man who al­legedly shot him­self to death while strug­gling with po­lice, an ex­pla­na­tion that has been ques­tioned and sparked protests.

In At­lanta, where of­fi­cers were re­cently crit­i­cized in an au­dit for fail­ing to use their body cam­eras as in­tended, the de­part­ment would not re­lease video of an of­fi­cer-in­volved shoot­ing that hap­pened last sum­mer, say­ing the of­fi­cer could po­ten­tially still face dis­ci­plinary ac­tion.

“I see it all over the na­tion that po­lice de­part­ments use this catch-all of ‘on­go­ing in­ves­ti­ga­tion’ to ba­si­cally throw up a stone wall in front of those that might like to find out the truth,” said at­tor­ney Jonny Hib­bert, who is rep­re­sent­ing the fam­ily of an 18-year-old At­lanta man who was shot and killed by an off-duty of­fi­cer af­ter al­legedly steal­ing his car. His re­quest for any video of that in­ci­dent was re­cently de­nied.

The de­part­ment in Sugar Land, Texas, which re­cently re­leased dra­matic video of of­fi­cers res­cu­ing a woman from a lake, re­fused to di­vulge footage of a 2016 strug­gle in which a man al­leges he was beaten and se­verely in­jured by of­fi­cers. In Seagov­ille, Texas, the de­part­ment would not re­lease video show­ing an of­fi­cer us­ing a stun gun to sub­due a teenager bran­dish­ing a toy gun, even though it had pub­li­cized the in­ci­dent as a text­book ex­am­ple of of­fi­cers show­ing re­straint. The de­part­ment de­nied ac­cess be­cause AP didn’t know the name of the teen in­volved in the Oct. 4 in­ci­dent. It said that piece of in­for­ma­tion must be pro­vided to re­quest po­lice videos un­der Texas law.

In North Lib­erty, Iowa, a city lawyer re­sponded to a re­quest for video of a traf­fic stop by call­ing it a con­fi­den­tial in­ves­tiga­tive record — then de­manded the AP not pub­lish footage of the in­ci­dent it had al­ready ob­tained.

The city had fired a pa­trol su­per­vi­sor for mis­han­dling the stop, claim­ing he vi­o­lated the rights of sus­pects in a road rage in­ci­dent, failed to draw his weapon and made other pro­ce­dural er­rors. The su­per­vi­sor has filed a law­suit con­test­ing his fir­ing, and his at­tor­ney pro­vided the AP with footage that he says shows his client acted ap­pro­pri­ately. The city re­leased a redacted ver­sion of the video only af­ter AP de­clined the city’s re­quest.

In the af­ter­math of the 2014 shoot­ing of Michael Brown in Fer­gu­son, Mis­souri, and sim­i­lar deaths of un­armed black men, po­lice de­part­ments around the coun­try faced pub­lic pres­sure to be­gin us­ing body cam­eras. Rather than re­sist, said Mar-

low, the ACLU ex­pert, they em­braced cam­eras — but of­ten only re­leased videos that showed po­lice in a pos­i­tive light.

“The de­ci­sions about whether footage is be­ing re­leased or not is be­ing dom­i­nated by the group that is sup­posed to be watched,” he said. “When that hap­pens, po­lice body cam­eras go from be­ing a tool for trans­parency and ac­count­abil­ity into a pro­pa­ganda tool.”

It’s not that way ev­ery­where.

Cal­i­for­nia’s state cap­i­tal, Sacra­mento, has been roiled by protests over po­lice shoot­ings of un­armed black men — most re­cently, af­ter the dis­trict at­tor­ney and state at­tor­ney gen­eral de­clined to bring charges against two of­fi­cers in the fa­tal shoot­ing of Stephon Clark, who was found to be hold­ing a cell­phone af­ter he was killed. Po­lice video of that shoot­ing helped fuel the protests.

The de­part­ment is among the most trans­par­ent in re­leas­ing of­fi­cer videos; city pol­icy that pre­dates the Clark shoot­ing re­quires the po­lice de­part­ment to re­lease footage within 30 days of a ma­jor in­ci­dent or jus­tify why it won’t. In some cases, the de­part­ment has re­leased footage within days.

“We hope to say that we’re lead­ing the way in re­leas­ing it and be­ing trans­par­ent,” said a de­part­ment spokesman, Mar­cus Basquez. “That’s a big pri­or­ity for us, to build that trust with our com­mu­nity, and we feel re­leas­ing body-worn cam­era footage is one way.”

A state law tak­ing ef­fect in July re­quires all state and lo­cal law en­force­ment agen­cies in Cal­i­for­nia to make au­dio and video record­ings of crit­i­cal in­ci­dents pub­licly avail­able af­ter 45 days, un­less it would hin­der an in­ves­ti­ga­tion. If it with­held record­ings longer

than a year, a de­part­ment would have to show “clear and con­vinc­ing ev­i­dence” of that as­ser­tion. ———

Po­lice videos are con­sid­ered pub­lic records in nearly ev­ery state, but vague laws and ex­emp­tions of­ten give po­lice chiefs and pros­e­cu­tors wide dis­cre­tion to de­ter­mine when to re­lease them.

A few states have lim­ited the re­lease of footage by ex­empt­ing po­lice videos from open records laws or re­quir­ing court or­ders to ob­tain their re­lease. Oth­ers have carved out pri­vacy ex­emp­tions for videos that show pri­vate homes, hos­pi­tals or ju­ve­niles.

The New York City Po­lice De­part­ment, the na­tion’s largest, stopped re­leas­ing body cam­era videos en­tirely last year af­ter a po­lice union suc­cess­fully ar­gued in court that they were con­fi­den­tial per­son­nel records. But the de­part­ment vowed last month to con­tinue re­leas­ing video of of­fi­cer-in­volved shoot­ings af­ter an ap­peals court ruled that the union’s ar­gu­ment “would de­feat the pur­pose of the body-worn-cam­era pro­gram.”

Adam Mar­shall, a lawyer for the Re­porters Com­mit­tee for Free­dom of the Press, in 2015 called po­lice body cam­era videos the ”Wild West of open records re­quests” be­cause of the un­cer­tainty sur­round­ing how they would be han­dled. To­day, he says a grow­ing num­ber of court cases and state laws have made for more cer­tainty — that many re­quests will be de­nied or de­layed.

“It’s dis­ap­point­ing,” he said. “Un­for­tu­nately, it does not re­flect the type of trans­parency and open­ness that the pub­lic hoped would re­sult from body cam­eras.” ———

PHOTO BY ALLYSON BARTLETT VIA AP

This un­dated photo pro­vided by Allyson Bartlett in March 2019 shows her brother, Daniel Fuller. The video of the 26-year-old’s death is brief but dis­turb­ing: an of­fi­cer is seen hit­ting an un­armed sus­pect with his pis­tol as the man falls into the grass. An au­topsy would later show that he died from a gun­shot to the back of the head. “It took for­ever for them to re­lease the video be­cause they kept say­ing it was an on­go­ing in­ves­ti­ga­tion,” says Bartlett. “I don’t think they wanted pres­sure from the com­mu­nity.”

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