Judge says public can’t see video of fatal police shooting

A superior court judge turned down the Winston-Salem Journal’s request for release of police body-worn camera video depicting the fatal shooting of an African-American man by a white Winston-Salem police officer in a ruling today.

Edward McCrae, 60, was killed during an encounter with Officer DE McGuire during a traffic stop in northeast Winston-Salem on March 30. McGuire became suspicious of McCrae when the officer saw him “reaching toward concealed areas of the vehicle,” according to a police press release. According to the police account, Officer McGuire ordered McCrae out of the car and the two men struggled as the officer repeatedly told the man to “stop reaching” and saw a handgun. The State Bureau of Investigation, which is looking into whether McGuire used lawful and reasonable force, has indicated that a firearm that did not belong to the officer was recovered from the scene.

Superior Court Judge Stuart Albright said he was moved by the intervention of McCrae’s daughter and other family members, represented by lawyer John Vermitsky, who filed a last-minute motion requesting that they be allowed to review the video before any released to the public.

“I can’t imagine a more relevant and higher standard than human decency considering the feelings of those who have lost the most,” Albright said.

The judge added that release of the video would be “a threat to the administration of impartial justice at this time.” He added, “I emphasize: At this time.”

Albright said that confidentiality is necessary to protect the integrity of three investigations — a criminal investigation by the State Bureau of Investigation, a criminal investigation by the Winston-Salem Police Department, and an administrative investigation by the police.

Vermitsky also argued that potentially making a civil rights claim against the officer, if there indeed is one, requires his ability to interview witnesses and see whether their statements corroborate the video. Were the video to be publicly disseminated, Vermitsky argued that “the well is tainted.”

Without knowing what’s in the video, Vermitsky also argued, “It could be this video exculpates the Winston-Salem Police Department or shows a serious civil rights violation. There’s also a privacy consideration: For a family that’s grieving the loss of a loved one, it could be embarrassing or it could be burdensome.”

The request to release the video drew fierce opposition from the Forsyth County District Attorney’s Office, with District Attorney Jim O’Neill, Chief Assistant District Attorney Jennifer L. Martin and Assistant District Attorney Ruffin Sykes appearing in court in opposition to Amanda Martin, who argued for BH Media and the Winston-Salem Journal. Police Chief Catrina Thompson observed the hearing from the gallery. At one point before the hearing, Lori Sykes, the police attorney for the city of Winston-Salem, conferred with O’Neill. City Attorney Angela Carmon said she and her colleague were there to observe and answer any questions the judge might have.

About 40 people from the Revolutionary Action Movement, or RAM, and other activist groups attended the hearing to show support for releasing of the police video. Some wore shirts reading, “Justice for Edward McCrae.” Before the hearing, Albright cautioned them that any emotional outburst might result in them being held in contempt of court. After the hearing, he expressed appreciation for their “professionalism.”

In a motion seeking to prevent the release of the video, Jennifer Martin and Ruffin Sykes from the district attorney’s office, argued, “The body-worn camera footage sought by petitioner captures the dying moments in the life of a human being, Mr. McCrae, as well as the first moments of a new and irreversible reality for Officer McGuire. One can hardly imagine a scenario more fraught with sheer humanity and emotion, and this court should not release footage of this incident merely to satisfy the morbid curiosity on the part of the petitioner or the public.”

Amanda Martin, arguing for BH Media, told Judge Albright she took “offense” to the state’s characterization of the newspaper’s effort to obtain the video as “morbid curiosity.”

“This is a legitimate public concern about a government activity,” she said. “The public has a right to know what the government is doing. This is not video of the police executing a search warrant in someone’s private residence. This happened on a public roadway. This is what somebody would see if they had been walking by — activity a reporter might take a photo of or take video of if they had been on the scene. It happens that the police are the only ones who were there to see it.”

Martin quoted US Supreme Court Justice Warren Burger’s ruling in the 1980 case Richmond Newspapers v. Virginia: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

In both their written motion and oral arguments, the district attorney’s office highlighted two Journal editorials, one calling for patience and another calling for release of the video, arguing that they were contradictory.

“The call for patience is in no way inconsistent with the call for information,” Amanda Martin retorted. “To say, ‘Don’t rush to judgment before we know all the facts,’ sort of implies we need to know all the facts.”

Jennifer Martin and Ruffin Sykes from the district attorney’s office wrote in their April 18 motion: “Although release of Officer McGuire’s body-worn camera footage at this time would be severely premature, it may still be inappropriate even after the investigations have concluded.”

During an April 2 press conference, city leaders pledged transparency on the shooting that ended McCrae’s life.

“It is incumbent on the police department and the district attorney’s office to release the footage as soon as possible,” said Councilman James Taylor, who chairs the city council’s public safety committee.

On Sunday evening, about 40 people from RAM and other groups called for the release of the video during a protest in downtown Winston-Salem. Marching along Fourth Street as diners and patrons of RiverRun International Film Festival watched, they chanted, “When black lives are under attack, what do we do? Stand up, fight back.”

Malcolm Jeffries, a graduating senior at Winston-Salem State University, made an argument that echoed the case many city leaders have made — that transparency builds trust in the police.

“The reason this tape needs to be released is that it will help build a stronger community, no matter what,” Jeffries said. “Whether it is in the officer’s favor or not, it should be released. Because if it is not in his favor, I believe that the justice system would do the proper steps to put this man in jail or do whatever needs to be done. If it is in his favor, the community must obviously respect the decision that he made under such extreme circumstances.”