Carolina Criminal & DUI Lawyer Blog
Prior to the passage of HB 972, the “Body Camera Bill” in 2015, there were legitimate concerns about the law and how it would be applied.
Given the maelstrom that now exists in the Queen City regarding yet another “officer-involved shooting,” and the lack of transparency in the turning-over of video, reasonable minds may ask, “Do we need to revisit the NC body camera laws?”
The law regarding Law Enforcement Agency Recordings, as set forth in N.C.G.S. 132-1.4A, and its interpretation, has been at best problematic. Police departments only reluctantly turn over video. Officers fail to activate recording equipment.
A cloud looms large over Charlotte. Claims of a “cover-up” are only emboldened when officers fail to turn on their body-worn cameras and/or officials at the Charlotte Mecklenburg Police Department appear to willfully withhold turning over videos in their entirety.
What was said before the Body Camera Bill went into effect
Charlotte is a nice city, inhabited by nice people who try, generally, to be nice. While it may be a Southern grace, we, more than many urban environments, normally get along.
We tend to be a place with a joyful heart and a cheerful face, known for a cooperative spirit, embracing newcomers, and goodwill to all.
The troubles as of late have taken us by surprise. If open riots and periods of general anarchy necessitating mobilization of military forces can happen here, it can happen anywhere.
Try as he may to play the role of good ole’ Jamestown boy, our Governor, Pat McCrory, is a Charlottean.
Indeed, he probably was the best mayor we ever had. If there was a ribbon cutting, or public gala, cookout, or dog show, Mayor Pat was always there. He is a nice man. He is a Charlottean.
Because of that, it seems likely he intends the best when executing laws that come across his desk. In fact, in North Carolina, there is a presumption in the law that the laws passed by the General Assembly are in fact legal. Go figure.
Defense lawyers don’t always agree with that in every instance; but, generally, Legislators are not waxing their mustaches in Raleigh, looking for ways to tie others to railroad trestles.
Starting with that presumption of good faith, one would reasonably hasten to add the General Assembly passed, and Pat McCrory signed into law, one of the most opaque, regressive, and least public records friendly statutes in the nation.
It goes into effect October 1, 2016 and is known as “HB 972” or “The Body Cam Bill.”
Again, attempting to infer good intent, that is difficult given the official title of the Bill, starting with: AN ACT TO PROVIDE THAT RECORDINGS MADE BY LAW ENFORCEMENT AGENCIES ARE NOT PUBLIC RECORDS.
Problem solved; videos are not public records. . .which is utter and complete nonsense. Of course they are. We bought and paid for them.
Officer Involved Shootings
The nice people of Charlotte, and North Carolina for that matter need to dig their Tar Heels in and start demanding answers to very difficult questions posed by reasonable minds:
- Did Keith Lamont Scott possess a weapon?
- Who did he threaten, if anyone?
- What law had he broken?
- What was the Probable Cause?
- What was the urgency that required surrounding the vehicle and attempting to smash out windows?
- Did police escalate the encounter, creating the purported imminent fear to themselves of death or bodily harm?
Here’s the problem: But for the word of the police, we will never know with complete satisfaction, if such a thing exists, the answers to many of these questions. Bad as it is now, it will become worse on October 1, 2016. That is not acceptable.
Even before the Body Cam Bill goes into effect in North Carolina, we cannot seem to get the video thing right. We have a local policy and it was not followed. At least one officer did not turn on his video; another was not apparently issued and therefore not wearing a body cam at all. That too is not acceptable.
Chuck Wexler, Chief Executive of the Police Executive Research Forum (PERF), writes this, “People aren’t buying our brand. If it was a product, we’d take it out of the marketplace and re-engineer it. We’ve lost the confidence of the American people.”
Within the findings of a recent Community Oriented Policing Services (COPS) study, as funded by the U.S. Department of Justice, PERF found, “[W]ith certain limited exceptions. . .body-worn camera video footage should be made available to the public upon request—not only because the videos are public records but also because doing so enables police departments to demonstrate transparency and openness in their interactions with members of the community. . .”
There are circumstances where the rights of both victims and the accused, which one would be remiss in failing to note may be the officer involved, require a delay in releasing material.
Obfuscation in perpetuity of the publicly financed, recorded and maintained video is unconscionable. We are the public. We pay for the equipment. We cannot accept an ipse dixit declaration by law enforcement, the General Assembly, or the Governor, to the contrary.
President Ronald Regan, quoting a Russian Proverb often said, “Trust, but verify.”
Submission to the rule of law must be based on respect, not fear. Government, in holding others accountable, must be, above all, open, subject to critique, and in large measure, transparent.
It is not impertinent, unreasonable, or heaven forbid, rude, to demand the truth when a citizen is shot dead in the street by agents of the government, the police.
That protects the Rule of Law. That protects the officers. The public deserves to know the truth, no matter how hard that may be to see or hear.
The only perfect and unbiased witness is video. It is neither subject to emotion nor human frailties. Video records cold, hard facts.
The government should not hide from those facts, or be forced to disgorge those facts, only after Court Order. Irrespective of what Raleigh may redefine, contrary to common sense, as a “public record,” they are the property of and interest to the public.
In government, we need more transparency, not less.
What law enforcement professionals say:
Former Philadelphia Police Commissioner and head of the 2014 Task Force of 21st Century Policing, Charles H. Ramsey, put it best when discussing whether officers should be able to review videos before giving a statement, adding, “When you’re involved in a tense situation, you don’t necessarily see everything that is going on around you, and it can later be difficult to remember exactly what happened.”
Jason Parker, Chief of the Dalton, Georgia Police Department has said, “Although body-worn cameras are just one tool, the quality of information that they can capture is unsurpassed. With sound policy and guidance, their evidentiary value definitely outweighs any drawbacks or concerns.”
North Carolina can balance privacy considerations with the need for accountability, while also ensuring accurate documentation of events and evidence collection.
That will require the repeal or substantial modification of a law that is now anathema.
If nothing else, studies by the International Association of Chiefs of Police (IACP) indicate recordings are of value in reducing complaints and resolving officer-involved incidents, identifying and correcting internal agency problems, and evidence documentation.
We need a better law. To the folks up on Jones Street in Raleigh, a lot of us in Charlotte are saying, “Y’all need to get moving on this.”