The General Assembly recently amended the law that governs the release of body camera footage. This post explains the change.
Background. Three years ago, S.L. 2016-88 enacted G.S. 132-1.4A (law enforcement agency recordings). The statute created a new legal regime governing body camera footage, dash camera footage, and other recordings held by law enforcement agencies. It provided that such recordings were not subject to the normal rules regarding public records. Instead:
- “A person whose image or voice is in the recording” may ask the agency for “disclosure,” that is, for an opportunity to see or hear the recording. The agency has the discretion to grant the request. If it doesn’t, the person may “appeal” the denial of disclosure to a superior court judge.
- Any person, including the news media, may seek “release” of a recording, that is, a copy of the recording. But an agency normally may not release a recording on its own. It normally may do so only pursuant to a court order from a superior court judge.
- There are a few exceptions to the rule that release requires a court order. A law enforcement agency must release recordings to the district attorney for use in criminal prosecutions, and may release recordings within the law enforcement community for law enforcement and training purposes.
Frayda Bluestein, the School of Government’s expert on public records and related matters, has a blog post answering many common questions about G.S. 132-1.4A.
The law was and remains controversial, with some opponents arguing that requiring a court order to release recordings put a roadblock in the path of transparency. My unscientific impression is that judges have issued such orders relatively freely, so the roadblock may not be as robust as some initially feared. News stories about judges ordering release are here, here, and here. Of course, the process of seeking a court order may be daunting for some interested people or organizations.
The new law. S.L. 2019-48, which took effect back on June 26, adds two new exceptions to the rule that agencies may not release recordings without a court order. The new exceptions are “[f]or suspect identification or apprehension,” and “[t]o locate a missing or abducted person.”
An example illustrates when these provisions might come into play. Suppose that a suspect assaults a law enforcement officer and then flees the scene. The officer’s body camera records the assault and produces a clear image or video clip of the suspect. The agency for which the officer works wants to enlist the public’s assistance in identifying the perpetrator. Previously, the agency would have had to seek a court order allowing it to release the clip, but now, it may do so in its discretion “[f]or suspect identification or apprehension.”
Other possible changes. There are other tweaks that some have suggested making to G.S. 132-1.4A. For example, H791 and S619 would have made clear that an agency may disclose a recording to the city or county manager or board, presumably to facilitate those entities’ oversight of their law enforcement agencies. From the information available on the General Assembly’s website, those bills don’t appear to be gaining any traction this session.
I’m of the impression that G.S. 132-1.4A was enacted as a knee-jerk response by liberals, Democrats and Elite Republicans who suddenly realized that law enforcement body|dash cameras were providing proof positive of law enforcement’s professionalism and the thuggish inappropriate behavior of certain cultures in our society that most certainly DID NOT align with Democrat, liberal or NAACP agendas. I’m also quite certain that this law will NOT stand the test of time and prevailing law regarding “We the People”‘s right to freedom of that information as it is information that is produced by a government entity paid for by “We the People”. The reason that you are seeing judges currently releasing said information freely is because they are following their oaths of office and realize that they do not want to be “that” judge that gets embarrassed by their decision being overturned on appeal. The one irrefutable factor about such recordings is the fact that the release of such information can not possibly have a damaging effect on any case because such recordings are a recognized unmanipulated FACTUAL representation of said event that favors neither side in a court proceeding. I really do feel that all such recordings should be mandatorily and automatically saved to a state maintained “cloud” in real time that is set up as “read” only and downloadable by ANYONE. The ONLY people I’ve heard having problems with body|dash cameras are attorneys.
Defense Attorneys, because you can’t argue and create doubt in the face of the recorded truth.
City/Police Attorneys, because they are now forced to back and protect the law enforcement officers who now have the PROOF that these kinds of thuggish citizens DO LIE. It’s not so easy now to simply throw the law enforcement officer under the bus as a sacrificial lamb to appease liberals, activists and liberal media hypersensitivities and pay the whining lying complainer to go away. Attorneys now actually have to argue well established law and policy and are expected to succeed. Attorneys hate that.
This is such a tired way of responding. Most people just tune folks who write like this out. It is so obviously politically-motivated. The world is hungry for facts, not this drivel.
“knee-jerk response by liberals, Democrats and Elite Republicans who suddenly realized that law enforcement body|dash cameras were providing proof positive of law enforcement’s professionalism”
As a Defense attorney, I love body cams, dash cams, etc. They make my job easier. I can show my client what the video shows and be done with the case. I can also make specific arguments based on what the cameras show, rather than on what my client (or the officer) says. I think they are the best thing to happen in a long time. My only complaint is how long it can take to watch all of them – but it is worth it.
Jeff, thank you for this helpful post. Here locally in Buncombe County, the salient illustration of the body cam law is the Christopher Hickman case. Then-Officer Hickman’s body cam of an encounter with Johnny Rush was released to the media (ostensibly in violation of the statute) some 5 months after Hickman is observed assaulting and choking Mr. Rush. The release of this body cam was, of course, controversial, as was the Superior Court’s order authorizing the release of the rest of the body cam footage obtained from the other responding officers that night. (That footage is now available on the City of Asheville’s website.) Without the public release of the body cam in violation of the statute, Hickman would have never been charged (and convicted), and Mr. Rush would not have had a viable 1983 claim that was later settled with the City. In this exception you reference, “[f]or suspect identification or apprehension,” isn’t it fair to say that the exception would have authorized the release of Hickman’s body cam footage (and that of all the other APD officers) immediately after the assault on Mr. Rush?
In addition, and as a side note: “Body Cams” SHOULD BE activated automatically upon the officer exiting his unit (car) in lieu of relying on him/her to “turn it on” or activate it when exiting or making personal contact with someone. Departmental policy requirements aren’t going to ensure the cams are activated in-as-much reliability on the officer to do so is questionable, for whatever reason, simply because you are dealing with the “human factor” where problems and mistakes can, and will be made. I’ve lobbied for “proximity activated” body cams for years. When those are instituted we will have evidence that is not refutable by either side. The technology exists, it just has to be purchased and installed. Budget and funding problems are normally the driving factors when making the decisions to purchase technology and that’s understandable, yet regrettable. However, one must reason, is it better to pay thousands for something to protect officers from frivolous, unsubstantiated lawsuits now OR pay millions to folks that hate law enforcers and may be looking for a payday later?
The issue with a proximity activation is about 70% of the time I’m getting out of my car it’s not for a police function. I’m going to the bathroom. I’m going into the office to file paperwork. I’m going to the gas station for a drink. I’m walking into court. I’m walking into a hospital where I still have to locate a victim or suspect or witness.
Proximity activated cameras hopefully will never come around. I’d spend about 50% of my shift just downloading and labeling videos if they did.