NC body-camera footage law is complicated. We’re here to demystify the process.
In the last two months, two people have been killed by members of the Greensboro Police Department. According to GPD policy, “police officers are required to record interactions using their body worn camera when responding to calls for service and conducting proactive policing activities.” That, once again, has brought up the issue of how and when police body-camera footage can be released to the public.
During the public comment period at the Aug. 2 city council meeting, activist Del Stone asked members of council if they would request to release body-camera footage in the shooting of Ernesto Ruiz from June 20.
“I want to bring up an issue that is relevant statewide as much as it is locally in Greensboro,” Stone said. “Recent judicial rulings have upended the process for North Carolinians to request police camera footage…. To your knowledge, has anyone requested the police video footage from the night Greensboro police killed Ernesto Ruiz on June 30?…. Will you commit to requesting the footage as you have in the past?”
To that, Mayor Nancy Vaughan responded that the city waits until the State Bureau of Investigation finishes their process to get involved. Assistant City Manager Trey Davis responded by stating that the police chief “automatically requests” for video footage to be released for “critical incidents.” But in the last few years, the law that dictates how, when and to whom police body-camera footage can be disclosed or released has undergone significant changes. That includes changes for members of city council and police departments.
Important terms to know
Most of the law talks about disclosure of footage. This means making “a recording available for viewing or listening to by the person requesting disclosure.” Release of footage, on the other hand, means to “provide a copy of a recording” which is how media or governmental entities typically republish footage for public viewing.
Petitioning the court has typically meant filling out a form and sending it to the court to request something.
Filing an action or filing a civil action means filing a lawsuit. This is more involved than petitioning the court.
What the law currently says about disclosure of body-camera footage
As the law is currently written, body-camera footage is not public record and can only be viewed by or disclosed under specific circumstances as follows:
- IMMEDIATE DISCLOSURE: If the footage depicts a death or serious bodily injury, a personal representative of the deceased, the injured individual or a personal representative, such as an attorney, on behalf of the injured individuals must fill out a notarized form and send it to the law enforcement agency, which will then petition (by filling out another form) the court within three days fordisclosure of the footage.
- After the law enforcement agency petitions the court, a judge conducts a review of the recording and must decide within seven business days to immediately disclose the full footage, to immediately disclose with editing or redaction, disclose at a later date with or without editing or to refuse access.
- The head of the law enforcement agency, any law enforcement employees captured in the recording, the investigating agency, the district attorney and the party requesting the footage will be notified and given an opportunity to be heard at any proceeding.
- GENERAL DISCLOSURE: If the footage doesn’t depict death or serious injury, anyone whose image or voice is in the recording, a personal representative of an adult person whose image or voice is in the recording, a personal representative of a deceased person whose image or voice is in the recording, or the representative of a minor who is captured in the recording may fill out the form to ask to view footage.
- Once the form is received, the law enforcement agency must disclose portions of the footage that are relevant or notify the requesters of their decision not to release footage to them within three days.
- If a request is denied, the requester can appeal to superior court for review.
- The head of the law enforcement agency, any law enforcement employees captured in the recording and the district attorney will be notified and given an opportunity to be heard at any proceeding.
What the law says about release of body-camera footage
Currently, the only people who can request release of footage without filing a civil action are people eligible for disclosure. This means people for whom the “immediate disclosure” or “general disclosure” requirements apply. Those who are eligible under disclosure can fill out a form and petition to have the footage released.
For everyone else, body-camera footage can only be released to a member of the general public (this currently includes city council) if they file a civil action, aka a lawsuit, in Superior Court.
As of February of this year, the NC Court of Appeals issued rulings that have made the release of footage more complicated. Prior to the ruling, a member of the general public or a member of city council could petition the court to release body-camera footage by filling out a form. However, the ruling in In Re: Custodial Law Enforcement Agency Recordings by Judge Jerry R. Tillett in Pasquotank County Superior Court, changed the rules and noted that a petition using the form didn’t constitute “an action” and was thus insufficient.
Now, anyone not eligible for disclosure asking for release of footage must file a civil action aka a lawsuit.
When a civil action is filed, the following entities must be notified:
- The head of the custodial law enforcement agency;
- Any law enforcement agency personnel whose image or voice is in the recording and the head of that person’s employing law enforcement agency; and
- the district attorney
The law enforcement agency can also release recordings to a district attorney or to other members of law enforcement for various purposes including prosecution and training.
When a civil action is filed, the Superior Court must conduct a hearing in such an action “as soon as practicable,” and subsequent proceedings must be accorded priority by the trial and appellate courts.
Here are the items the court will consider to decide whether or not to release the footage:
- Release is necessary to advance a compelling public interest.
- The recording contains information that is otherwise confidential or exempt from disclosure or release under state or federal law.
- The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding.
- Release would reveal information regarding a person that is of a highly sensitive personal nature.
- Release may harm the reputation or jeopardize the safety of a person.
- Release would create a serious threat to the fair, impartial, and orderly administration of justice.
- Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.
- There is good cause shown to release all portions of a recording.
If the court determines that there is reason to release the footage, they do not have to release the full video. Instead, the law states that “the court shall release only those portions of the recording that are relevant to the person’s request, and may place any conditions or restrictions on the release of the recording that the court, in its discretion, deems appropriate.”
According to a blog post by UNC Public Law and Government Professor Shea Denning, under the new court rulings from February, even police departments that want to release footage must now go through civil action.
In that instance, the city, on behalf of the police department, would file an action against itself (being both plaintiff and defendant), pay the filing fee, serve a civil summons on itself and provide notice of the action to the appropriate entities. Then a superior court judge would make the decision whether or not to release the footage.
The problem, some experts say about this new process, is that it makes it more difficult to have footage released.
“With a lawsuit, also comes rules of civil procedure and all of the other logistics that a lawsuit involves,” said Beth Soja, a Charlotte media lawyer.
It also adds a potential burden to requesters because of the increased need for legal counsel.
“It does make it more likely for someone requesting the footage under Subsection G to need an attorney,” she said. “I think that’s the reality of what the change means…. I think it’s definitely more daunting for non-lawyers to attempt to get access to recordings under Subsection G.”
Plus, civil proceedings take longer than a petition (filing a form) would.
Typically, once a “complaint” or a civil action is filed, the defendant has 30 days to respond by filing an “answer,” but an additional 30 days could be requested as well. That means that after a person files an action to have footage released, it could take 60 days for a decision by the court to be made.
In an email to TCB, Mayor Vaughan stated that Greensboro City Council will continue to petition state lawmakers to make police body-worn footage and dash cam video more readily available and transparent. Council has added the issue to their Aug. 25 legislative agenda in which they bring up issues to lawmakers.
“Quicker (unedited) release and greater transparency is supported by GPOA (Greensboro Police Officers Association), the Police Chief and the Police Chief’s Association,” Vaughan wrote.
Still, with the most recent changes to the body camera law taking place in 2021, it’s unlikely that the legislature will take up the issue any time soon.
“It doesn’t appear that the legislature will make changes this session,” Vaughan added.
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