Public record or police property?

Under a new law, WECT had to go to Superior Court to petition for police video to be released. We argued there is a "compelling public interest" to release the video, to illustrate how dangerous a police officer's job can be. (Source: WECT)
Under a new law, WECT had to go to Superior Court to petition for police video to be released. We argued there is a "compelling public interest" to release the video, to illustrate how dangerous a police officer's job can be. (Source: WECT)

LELAND, NC (WECT) - North Carolina lawmakers drafted and passed House Bill 972 during the 2015-16 session of the General Assembly. Governor Pat McCrory signed it into law on July 11, 2016. The law changed the process for individuals and the media to request video captured by members of law enforcement, either by cameras mounted inside their patrol vehicles or cameras worn on their uniforms.

Prior to the new law going into effect October 1, 2016, the decision to release these videos rested with the law enforcement agency having custody of the recordings. Many departments cited personnel laws for deciding not to release the videos, while others considered them public record when complying with requests from the media or the public.
The first line in House Bill 972 openly stated lawmakers' stance on police videos, saying they "are not public record". Even though they are recorded by public employees, working in cars and departments paid for by taxpayers.
McCrory said at the signing ceremony that the bill strikes the necessary balance between a public's right to know and protecting law enforcement officers. Other members of his cabinet defended the move, adding the law also improved transparency.

Frank Perry was McCrory's Public Safety Secretary at the time. He refuted the claims made by members of the media and other opponents, that the new law restricted access to the police videos:

"Some in the media have portrayed that the sky is falling in reports about the new body camera access law. Contrary to those reports, the new law provides a clearer path for individuals to request access to and copies of law enforcement camera footage.  

The new law does provide "a clearer path for individuals to request access to and copies of law enforcement camera footage",  for people who are seen or heard in the video. The law says the "head of the custodial law enforcement agency may only disclose a recording to the following:

(1) A person whose image or voice is in the recording. 
(2) A personal representative of an adult person whose image or voice is in the recording, if the adult person has consented to the disclosure. 
(3) A personal representative of a minor or of an adult person under lawful guardianship whose image or voice is in the recording. 
(4) A personal representative of a deceased person whose image or voice is in the recording. 
(5) A personal representative of an adult person who is incapacitated and unable to provide consent to disclosure.

The law enforcement agency can refuse to disclose the video. If that happens, the person requesting the video must go to Superior Court, where a judge can order the law enforcement agency to hand over the video if it finds "that the law enforcement agency abused its discretion in denying the request for disclosure."

If a member of the media, or someone not falling into the above five categories requests the video, the case immediately goes to Superior Court. The law does not allow law enforcement agencies to disclose the video to these parties without a court order.

"As we see more and more of these incidents captured by video, it's important to remember that the public needs meaningful access to these videos," Mike Meno of the American Civil Liberties Union said after the bill was signed into law. "Not just vague theoretical access if the court decides to give that to them, but meaningful access."
WECT decided to petition for the police dashcam video recorded on December 9, 2016, when Officer Jacob Schwenk, of the Leland Police Department, responded to a traffic stop and was shot several times by Brent Quinn. Officer Schwenk was able to return fire and killed Quinn.

Leland Police Chief Mike James did not have the authority to release the video to the media but said he would not oppose it if the town's manager and attorney approved. James said he believed the public would learn from seeing the video.

"I think it's important to see how quickly something can go terribly wrong," James said when WECT informed him of our intention to request the video. "This was a call about a drunk driver, with the officer being shot. Of course, nothing is routine in law enforcement. But if you want to classify a pretty simple call, that would have been a pretty simple call. It just took a matter of seconds for it to turn deadly."

The chief also said he favored the new law being put in place.

"Unless it's an investigation and it can't be released, I think the outcome is going to be the same," the chief said. "Whoever requests the video will actually end up getting it. I don't see a judge denying that request. It's a little bit harder process than it used to be, but I think it's good that they did this."
WECT Assignment Manager Brandon Wissbaum filed the request for the video as a public citizen. It cost him $200, the same it would cost other members of the general public.

WECT was the first to file for police video in Brunswick County court under the new law. It took the staff a little by surprise. Workers we encountered in the clerk's office had to research the process Wissbaum needed to follow.

After about an hour, we were told to take the request to a Superior Court Judge and inform the court about the request. We then took a signed document to the Judge's office, where we would be assigned a court date.

The first court date available, we were told, would be in June, about two months from the date of the request. The next day, we were informed the hearing date had changed to the week after the request.

On April 11, Brandon and I went into Superior Court in front of Judge James Bell, a visiting judge from Robeson County. Brandon used the language of the law in his argument, saying the "release is necessary to advance a compelling public interest".

"This video shows why people don't need to have a quick judgment of police officers," Brandon said. "In my opinion, this shows the public that officers go to work every day with the knowledge of possibly facing potential dangers. Officers don't intend to use deadly force. But in this instance, the officer was put in the position of having to defend his own life."

John Wessell, an attorney for the town of Leland, also addressed the court during the hearing. Wessel told the judge this was his first experience with the new statute and said he would not oppose the video being released if that was the judge's decision.

"Whether it is appropriate for media to have it (the video) is unclear," Wessel said. "If the court finds it is appropriate, we have no objection."
District Attorney Jon David was next to address the court. He said it was not his habit to sensationalize violence in a case by putting the video in the public, and stood by that prior stance.

"My practice is not to release video, and I don't generally release video," David told Judge Bell. "I have no problem with the town (of Leland) or the chief releasing it. I don't want to create a precedent. I ask the court to conduct an in-camera review of the video. If you find that a compelling public interest is served, I would not object to its release."

Minutes later Judge Bell watched the video supplied on DVD by James. He then ruled releasing the video "is necessary to fulfill a compelling public interest," and "there is good cause shown the release all portions of a recording."

Bell did make one stipulation following a request by Jon David, to limit the video up to ten minutes after Officer Schwenk's shooting. David said many agencies responded to the scene, including the SBI, and he did not want the public to view the tactics used to conduct an investigation.

"Sometimes the public's right to know is different than the press' right to know," David said after the hearing. "This statute gives individuals, first and foremost, and opportunity to see and hear themselves. It arguably gives the press an opportunity to petition the court, too. I would suggest their burden is substantially higher, assuming they have standing, to convince a court that compelling public interest exists. I think it's good, especially in sensational events, to slow down and be thorough and be considerate about what exactly is being put out into the public square. To the extent that this requires a judge, who is a neutral arbiter, to balance both sides of the issue,  and to determine whether a compelling public interest is served by release, that's probably a good thing."

WECT is not the first media outlet to petition the court for police video since the new law went into effect. WFAE-AM in Charlotte went to court on November 8, 2016, requesting video of a police shooting that happened in June of that year.

According to the station's report, attorneys for the police department, the two police officers involved in the shooting, and the district attorney's office all argued against releasing the video.

The judge ruled against the station, saying "release of the videos before the completion of the criminal investigation would "create a serious threat to the fair, impartial and orderly administration of justice."

WFAE reporter Lisa Worf made a second petition in January, once the investigation into the officers' actions was completed. The judge in that hearing ordered the video be released to WFAE.

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