In the wake of the April 21 killing of Andrew Brown, Jr., in Elizabeth City, North Carolina, I have fielded several media inquiries about our body cam law and the judge’s ruling limiting access to the footage about the shooting. With the help of the School of Government’s public records expert, Frayda Bluestein, I learned several things about our law. Below are a few that stand out to me. (You can read Frayda’s thorough analysis of the body cam law here and a discussion by Jeff Welty of a 2019 amendment to the law here.)
The Judge Is the Decider
G.S. 132-1.4A, enacted in 2016, establishes the process for obtaining access to body cam, dash cam, and other law enforcement videos in North Carolina (referred to for convenience as body cams). The statute provides that the law enforcement agency with custody of the footage may let the person who is pictured in it and personal representatives of the person, including family, view the video but not get a copy. G.S. 132-1.4A(c), (d). Viewing is called “disclosure” under the statute. G.S. 132-1.4A(a)(4). If the agency refuses to permit “disclosure,” the person or representative may petition a superior court judge to order disclosure. G.S. 132-1.4A(e). In this case, the Pasquotank County Sheriff, the custodian of the body cam footage, disclosed twenty seconds of five videos (from four body cameras) to Mr. Brown’s family and petitioned the superior court to allow greater disclosure to the family.
Under the statute, the Sheriff does not have the authority to provide a copy of the video to the Brown family. The statute calls providing a copy of the video “release.” G.S. 132-1.4A(a)(7). A court order is required (G.S. 132-1.4A(f)), and the Sheriff petitioned the superior court for release to the Brown family.
Another part of the statute deals with release to the public, including the media. G.S. 132-1.4A(g). Again, only a court may order release to the public, and a coalition of media companies petitioned for release of the footage.
Decisions about access thus fall to individual judges. The statute contains some exceptions allowing disclosure and release to the district attorney and law enforcement agencies without a court order. For example, to enable the district attorney to comply with discovery requirements in a criminal prosecution, the agency must release the footage to the district attorney (G.S. 132-1.4A(h)), who has an obligation under G.S. 15A-903 to provide defendants in criminal cases with the complete files of the investigation, in addition to the constitutional obligation to provide defendants with exculpatory evidence. This exception would apply if any of the deputies become criminal defendants and want the footage for their defense. It does not apply to the Brown family and the public, who must obtain a court order.
Results May Vary
My understanding from Frayda and others is that superior court judges have generally granted petitions for access to body cam footage under G.S. 132-1.4A. During the hearing on the petitions in this case, which you can watch here, the media coalition provided the judge with a list of cases in which it had obtained an order releasing body cam footage. Of course, the decision in each case rests with the individual judge who hears the case, and different judges may assess the circumstances differently.
The statute contains standards to guide the judge’s assessment, but the standards are subject to interpretation. The statute lists eight, including whether release is necessary to advance a compelling public interest, release would harm the reputation or jeopardize the safety of a person, release would create a serious threat to the administration of justice, and confidentiality is necessary to protect a criminal investigation. The statute does not indicate the evidence needed to meet these standards or the weight to be given to one standard versus another. The statute allows each judge to consider additional standards that they consider appropriate—for example, whether denial of release would undermine trust and confidence in the administration of justice. The statute also limits access to the portions of the video that are “relevant” to the request, but it does not define the term.
People could interpret these standards differently and obviously did interpret them differently in this case. (I do not believe we have any appellate decisions interpreting these standards.) On the petition for disclosure to the Brown family, the judge ruled that the standards allowed viewing of the video (by Mr. Brown’s son and an attorney); but, relying on the “relevance” requirement, limited viewing to only those portions of the video in which Andrew Brown was actually pictured. This amounted to approximately twenty minutes of the two hours of footage from the four body cams.
On the petition for release of the video, the judge stated at the hearing that he was deferring his ruling on release to the Brown family pending further investigation of the shooting and appeared to deny the media coalition’s request. Although the judge ruled that release was in the public interest, he found that the other statutory factors outweighed release. Among other reasons given by the judge was that release would interfere with an ongoing criminal investigation, an issue on which the District Attorney, who argued against release, and the Sheriff, who argued for release, disagreed. The Sheriff took the position at the hearing that release would not interfere with the SBI or FBI investigation.
The Process Can Take a While
Another thing that stands out to me is that the statutory procedure takes time. Andrew Brown was killed on April 21. The Pasquotank County Sheriff allowed the family to watch the 20-second video clip on April 26. The hearing on greater access was held on April 28, and the judge issued a partial written ruling on May 6, which sets forth his decision on disclosure to the family, discussed above. The viewing is scheduled for today, Tuesday, May 11. The written ruling deferred a decision on release of a copy to the family for an unspecified time. It did not address the media coalition’s request. Expect more rulings later. (The written ruling states that it applies to disclosure, but it also orders “release” of a three-minute video in its entirety to the family; this part of the ruling is unclear.)
The parties may be able to obtain appellate review of the judge’s rulings. I am no expert in appellate procedure, but I can say that appeals usually take a lot of time. In another racially charged case—the murder trial of O.J. Simpson—the North Carolina Court of Appeals moved quickly to allow release of evidence to Simpson’s defense team. In that case, a North Carolina writer had recordings of earlier interviews with Mark Fuhrman, one of the investigating officers, in which he had made several racist statements. The court of appeals reversed a North Carolina superior court judge’s denial of Simpson’s subpoena for the tapes in a mere ten days after the judge’s order. In re McKinny, 462 S.E.2d 530 (N.C. App. 1995). Such steps are unusual.
The Legal Horizon
Two proposals have been introduced in the North Carolina General Assembly to address body cam procedures. A set of identical bills, Senate Bill 510 and House Bill 698, would mandate release within 48 hours after request unless law enforcement obtains a court order limiting release for a specified time. This bill obviously shortens the time for release and requires law enforcement, rather than the person requesting the recording, to take the initiative.
Another bill, House Bill 532, would distinguish between “critical incidents”—essentially, incidents involving the use of deadly force by an officer—and other interactions. This bill would require law enforcement to release recordings of critical incidents within 45 days of request unless a court orders otherwise.
Other states have reconsidered their approach to release of recordings. Specific measures differ, but they give greater weight to transparency and public accountability in the disclosure of recordings of police actions. See Steve Zansberg, Public Access to Police Body-Worn Camera Recordings (Status Report 2020) (American Bar Association, Jan. 22, 2021).
With today’s viewing of body cam footage by the Brown family, we will learn more about what happened on April 21.