North Carolina Lawyers Weekly
RALEIGH (AP) — A North Carolina law that gives local courts authority over the release of body camera video has come under a harsh glare after a judge refused to make public footage of deputies shooting and killing Andrew Brown Jr.
The 2016 law says that law enforcement video is not a public record and generally cannot be released without court approval. A judge ruled on April 28 that body camera and dashboard footage of Brown’s death must be kept from public view for at least another month to avoid harming a state investigation. The April 21 shooting happened as deputies were serving drug-related warrants at Brown’s home in Elizabeth City.
Lawyers for Brown’s family and racial justice advocates decry what they see as slow movement to release video of his last moments. The family’s legal team says the law stands in the way of transparency.
“This law makes absolutely no sense whatsoever,” attorney Bakari Sellers said.
Rules for access to body cameras vary by state and local jurisdictions. In Columbus, Ohio, police released body camera footage within hours of a fatal police shooting of a Black 16-year-old girl. That shooting happened the day before Brown, who was also Black, was killed.
A legal scholar who has studied North Carolina’s law says that it has received generally positive reviews from local governments.
“I’ve talked to cities and counties, and my sense is that the courts are handling it well,” said Frayda S. Bluestein, a law professor at the University of North Carolina’s School of Government in Chapel Hill. The Elizabeth City matter “is the first real sort of blow-up.”
Two North Carolina cases from last year show how application of the law can vary from place to place. Raleigh’s police chief asked a court in March 2020 to release footage of a nonfatal police shooting that sparked protests, and the footage was made public two days after the shooting.
In Forsyth County, a media coalition went to court in June 2020 to seek release of body camera footage surrounding the late 2019 death of an inmate. A judge heard oral arguments in July, and the videos were released a week later.
Chantal Stevens, executive director of the American Civil Liberties Union of North Carolina, said the current law perpetuates a “racist system” by “placing unnecessary and sometimes insurmountable barriers between communities and the recordings that help them grapple with tragic circumstances.”
But Bluestein said having a judge decide on access appears to be better than leaving it to the law enforcement agencies captured on the footage.
“They’re not neutral. They have employees who might be at risk of being arrested,” Bluestein said. Outside groups and individuals can petition the court by filling out a one-page form available online. “It’s a bit of an extra step, but it seems to me it’s reasonable.”
Partial victory for family
Judge Jeffery Foster said he believed the videos of Brown’s death contained information that could harm the ongoing investigation or threaten the safety of people seen in the footage. He said the video must remain out of public view for at least 30 days, but he would consider releasing it after that point if investigations are complete.
“The release at this time would create a serious threat to the fair, impartial and orderly administration of justice,” Foster said.
Foster did order authorities to allow Brown’s family to privately view five videos from body cameras and one from a dashboard camera within 10 days, with some portions blurred or redacted. Family members had previously been allowed to view only a 20-second clip from a single body camera.
While one attorney for Brown’s family, Wayne Kendall, initially said it was a “partial victory” for the family to view more video, the legal team later issued a statement condemning the decision not to make the video public.
“In this modern civil rights crisis where we see Black people killed by the police everywhere we look, video evidence is the key to discerning the truth and getting well-deserved justice for victims of senseless murders,” said the statement signed by the legal team, including Ben Crump and Harry Daniels.
The decision came shortly after a North Carolina prosecutor said that Brown had hit law enforcement officers with his car before they opened fire last week.
District Attorney Andrew Womble, who viewed the body camera videos, told the judge that he disagreed with a characterization by an attorney for Brown’s family that Brown did not try to drive away until deputies opened fire. Womble said the video shows that Brown’s car made “contact” with law enforcement twice before shots could be heard on the video.
“As it backs up, it does make contact with law enforcement officers,” he said, adding that the car stops again. “The next movement of the car is forward. It is in the direction of law enforcement and makes contact with law enforcement. It is then and only then that you hear shots.”
Womble said that officers shouted commands and tried to open a car door before any shots were fired.
None of the deputies were injured, according to previous statements by the Pasquotank County sheriff, Tommy Wooten II.
Womble argued that video of the shooting should be kept from the public while state investigators pursue their probe. He said the video should not be released until a trial in the shooting or, alternatively, if a completed investigation results in no charges.
One of the Brown family lawyers, Chantel Cherry-Lassiter, who viewed the 20-second video, said that shots were heard from the instant the clip started with Brown’s car in his driveway and his hands on the steering wheel. She said he did not try to back away until after deputies ran up to his car and began shooting, and he did not pose a threat to deputies, explaining: “He finally decides to try to get away and he backs out, not toward officers at all.”
In response to Womble’s remarks in court, she defended her description of the footage.
“At no time have I given any misrepresentations. I still stand by what I saw in that clip,” she said, adding that she watched the clip ”over and over,” taking notes.
Media coalition pushes for transparency
Foster denied formal requests by a media coalition including The Associated Press and by the sheriff to release the video.
“Accountability is important,” Mike Tadych, a lawyer for the media coalition, said in court. “But in order to hold public officials accountable, we have to see what’s going on.”
Tadych said in court that he’s worked on more than 30 requests to release law enforcement footage around the state since the law went into effect. Such video is often made public in two to three weeks.
Before the law went into effect, it was not always clear, in a legal sense, whether police footage was considered a public, personnel or investigative record, he said.
“The Legislature has set us at least somewhat straight in that regard,” he told the judge.
But some Democratic state lawmakers said this week that the current law isn’t good enough. They have filed bills that would ensure footage is released within 48 hours of a request, but the agency holding the video could ask a court for a delay.
“These bills build trust between civilians and law enforcement officials,” Democratic state Sen. Jay Chaudhuri said. “Releasing such footage in a timely manner reveals the truth. It serves justice when police misconduct occurs, and it protects law enforcement officials when they are falsely accused of misconduct.”
But a key Senate Republican said it was too early to consider the process broken based on the Brown investigation. When the law passed the Senate in a near-unanimous vote in 2016, the intent was to “to remove politics from the decision-making process and to forestall the possibility of a law enforcement agency refusing to release video,” Sen. Danny Britt of Robeson County said in a news release.
Republicans are open to considering improvements to the law, Britt said.
Rep. John Faircloth, a former police chief and sponsor of the law, said it was a good law when it was approved and still is so long as people in positions of authority use the process.
For instance, Faircloth said in an interview, a mayor or city council seeking release of footage can ask their city attorney to petition the court.
“If they don’t, then it’s not the fault of the bill,” Faircloth said.
Meanwhile, the FBI announced a civil rights investigation into Brown’s death on April 27, and Democratic Gov. Roy Cooper, who has also called for a swift release of the video, urged that a special prosecutor be appointed to take the state’s case over from Womble. However, under state law, the district attorney would have to agree to let another prosecutor step in. Womble indicated in a statement April 27 that he will not do so.
The State Bureau of Investigation began a probe of the shooting shortly after it happened. It has said that it would turn its findings over to Womble, as is standard under state laws and procedures.
Brown was shot April 21 by deputies serving drug-related search and arrest warrants at his house in Elizabeth City, about 160 miles northeast of Raleigh. On April 27, Brown’s family released an independent autopsy showing he was shot five times, including in the back of the head. The state’s autopsy has not been released yet.
