| LXBN | September 22, 2016
In the past week, Terence Crutcher and Keith Lamont Scott have joined the list of countless black men who have lost their lives at the hands of U.S. police officers. And the discrepancy in how the two shootings were treated show exactly why Black Lives Matters continues to take a stand against the police.
The first shooting was in Tulsa, Okla., where a police officer shot and killed Crutcher after his car stalled on the side of a road. Shortly after news broke, police released all available video they had of the shooting, promising to get to the bottom of exactly what happened. The Department of Justice also opened an investigation.
When Scott was killed in Charlotte, N.C., however, the story went much differently. The police officer who fired the shot didn’t have a body camera, but others around him did, and there may even be dashboard footage that shows what happens. But the public doesn’t know because the police department has said it won’t release the video. Their reasons are not necessarily nefarious: The footage is part of an “ongoing investigation” and is under review. But the truth is the Charlotte PD may not ever release the video willingly, thanks to a controversial law passed in July which removes footage from body cameras and dash cams from the public record. Although the law doesn’t technically go into effect until October, it’s part of Police Chief Kerr Putney’s defense for not releasing the video.
It’s too early to know exactly what happened to Scott, but that hasn’t stopped Charlotte from erupting into protests Tuesday night following his death. And that gulf of information from outraged citizen to defensive cop is just another reason body cameras are an important step but not a perfect solution: Much of their usefulness has depended on who controls the footage.
Under the North Carolina law, has joined five other states that exempt the videos from public records requests, where only people (or representatives of these people) who appear in a video can ask to view a recording.They cannot receive or make a copy, and a law enforcement agency could deny a request in order to protect a person’s safety as the investigation rolls on. If a request is denied, a judge could become involved, who would then consider whether the “public interest” is enough to compel the department to release the video. Supporters—including North Carolina Governor Pat McCrory—say this is all in the business of protecting privacy, increasing public safety, and ensuring the integrity of the investigation. Critics say it’s an undue burden on an already fraught process.
Which is only further called into question when the actual fate of these videos is addressed. And said fate is, like almost everything else when it comes to questions of police accountability, tricky. Though 29 states and D.C. have laws addressing recordings of the police, there’s unifying model on how long departments hold onto them. As CommLawBlog’s Kevin Goldberg testified on over a year ago, even retention of the videos can be widely variable:
Our research shows that one-third to one-half of states considering BWC legislation have identified a specific time for retention of videos before they can be erased. These range from a minimum of seven days (Tennessee) to a maximum of 3 years (Kansas and Michigan). There is no single “right answer” in terms of the time that must pass before a recording can be erased. There simply must be enough time to allow for affected individuals and the public to learn about a potential incident and make their claims for access known.…this is perhaps one of the biggest individual transparency and accountability issues that will face the District and other city and state governments around the country.
On the other hand, as Goldberg notes later in his testimony, is Seattle’s pilot program with its body cameras, where the department committed to putting video collected on their Youtube channel. It’s partially redacted (faces blurred, and stripped of audio), but it’s constantly accessible. But in practice, videos are often edited so heavily it’s hard to tell if any line has been crossed.
The problem is, there’s more data than ever that there are racial disparities at play when officers approach members of the public. Black people make up just 13 percent of the population but account for 31 percent of victims of police killings; black teens were 21 percent more likely to be shot and killed by officers between 2010 and 2011. It’s hard to find a middle ground with sharing and protecting police brutality videos, but it’s also necessary. To counteract those statistics there needs to be some sort of transparency on the side of the police.
The Crutcher video is not necessarily flattering to the Tulsa Police Department, but they released it anyway. Especially as the public adjusts to the new regime—too many black men’s deaths in the past few years have had their narrative drastically changed post-mortem thanks to a happenstance filming—that openness can go a long way with those who call for police reform. It helps demonstrate a middle ground between the two extremes.
“Good law enforcement officers, who both know and respect the law, and who likely attained their badge after building up a strong moral character, are entitled to the benefit of the doubt in many situations that call for split-second decision making with lives on the line,” said Chuck Ramsay on his Minnesota DWI Defense Blog. “That said, respect will never, ever equal blind faith or a failure to be skeptical. Today, I am grateful not only for the law enforcement agents who are out there every day keeping our free society as safe as it can be . . . but also for the individuals who are using advances in technology to make sure that they can step up and “watch the watchers” so that those who protect us don’t abuse their power.”
North Carolina’s handling of the Scott video, meanwhile, does not inspire much confidence in those that challenge them. Especially as the days drag on and the sound bites (“The video does not give me absolute, definitive, visual evidence that would confirm that a person is pointing a gun,” Chief Putney said at a news conference) get more and more cagey.
No doubt this will just be one more drop in the bucket for police officers’ handling of shooting and the media that comes out of it. But until that turns into a tidal wave of change, don’t expect people to stop pushing or sports players to stop kneeling.
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