Bodycam Footage In NC Is Not Public Record, But Some Lawmakers And Advocates Say That Needs To Change
In 2016, North Carolina modified how it releases video from police body-worn cameras to the public. Previously, it was up to law enforcement to release the footage.
In a 2016 interview, state Rep. Allen McNeill, a Republican from Asheboro, told WFAE: "One of the biggest complaints is that police are trying to hide these videos. So why in the world would anybody then want to leave discretion of releasing them to the police?"
"Put it in the hands of an impartial judge who is going to look at all the facts and make a decision — is there a compelling public interest as to whether he thinks the video should be released?" McNeill said.
Since the law changed in 2016, media organizations, advocacy groups and even law enforcement agencies have gone to court to petition for the public release of officer-worn body camera footage, often in cases of officer-involved shootings.
Robert Dawkins, the political director of the advocacy group Action NC knows the process well. He’s successfully petitioned for the release of footage in three different cases. He knows the feeling of standing in court in front of a judge and lawyers, which he says, can be intimidating.
"For you to stand against the police attorney and sometimes the district attorney — now me, I’m the type of person that doesn’t bother me," Dawkins said. "But that’s hard, unless you got the money to afford an attorney to go to court with you. And you’ve got to prove there’s compelling public interest. That’s a hard process when it should be public record."
Dawkins believes the default of the law needs to be flipped. Right now, body camera footage is not public record and it’s up to the petitioner to argue why it should be released. Dawkins thinks that should change: Footage should be public record and police should have to argue why it should be redacted or not released.
"The charge would change from ‘You need to prove that this is public interest’ to ‘You need to prove why this isn’t compelling public interest,'" Dawkins said.
"Once a family member or a loved one or media whoever makes a request for access to body camera footage for public release, that video needs to be released within 48 hours," Mohammed said. "If law enforcement, the custodial agency that holds that video, has concerns then they can go petition a Superior Court judge and try to figure out ways to restrict or limit that access to that video."
Senate Bill 510 did not make it past crossover, which means the bill has stalled. It also means it’s still up to those calling for the release of footage to keep doing the work they're doing, like in the case of Andrew Brown Jr., a Black man who was shot and killed by deputies in Elizabeth City in April.
"It’s unfortunate what we’ve seen Elizabeth City," Mohammed said. "I know the family has petitioned for the public release of the full video. That’s what’s going to increase transparency and accountability and build trust with the community at the end of the day."
A judge in Pasquotank County denied a petition filed by a media coalition for the release of the footage, which caused a spotlight to, once again, shine on North Carolina’s release law.
"I think the Andrew Brown case did 'stress test' the law," said John Rubin, a professor at the University of North Carolina’s School of Government.
"Some concerns that people had perhaps were highlighted in this case. You have individual judges balancing the factors in favor of or against the police, and in this case the judge balancing those factors decided not to release the videos," Rubin added.
District Attorney Andrew Womble, who is a Republican, agreed with that decision, saying it could have compromised the investigation. In a press conference last week, Womble announced he won’t press charges against any of the officers involved in the shooting death of Brown, that officers perceived a lethal threat, and that the shooting of Brown was "justified."
During that press conference, Womble was asked about his thoughts on the process.
"This was the first opportunity that I’ve had to deal with this particular body camera statute," he said. "For the purposes of the district attorney's office and what my duties are in all criminal investigations, I found the statute to be very useful."
Womble continued, "I want to conduct my investigation, I want it done correctly. Without the possibility that other people have seen it and are going to interject things, we cannot objectively verify again. I want that investigation done properly."
It’s not clear if the public will have access to the videos now that the criminal investigation at the state level is complete. A judge will have to rule in favor of a petitioner for the footage to be released.
State Sen. Jeff Jackson, a Democrat from Mecklenburg County, says part of the problem with the current way the law works is that timelines for release are murky.
"We have seen judges take weeks, months even, to make decisions about whether or not to release," Jackson said. "You have to put a deadline on that so members of the public know ‘OK, if not now, (I) understand. But then, when?’ Let’s create a date certain,"
Jackson was one of two state senators who opposed the change to the law back in 2016. He had concerns that the change would solidify body-worn camera footage is not public record and would be harder to access.
"I think what you’re seeing play out right now in Elizabeth City are the consequences of stacking the deck against this footage being treated as a public record," Jackson added.
In Mecklenburg County, judges often do release footage, although there is a particular process that must be followed. The Charlotte-Mecklenburg Police Department says it has filed nine petitions for release of body-worn camera footage since 2016. The department does not keep track of the petitions to which it objects.
Even still, advocates for police transparency, like Dawkins with ACTION NC, say the law needs to change so when body-worn camera footage is requested, it is easily accessible.
"If WFAE is out on scene, and you all see it, you can record it, you can show it," Dawkins said. "If I record it on my camera, I can record it, I can share it with the media. The police are an extension of the public. The equipment that they use is equipment that we bought. So the fact that we can’t see the video just because it's on the cameras that we bought, as opposed to the ones in our hand, to me seems to be a violation of our civil liberties."
The process he says, needs to be put in the hands of the people.