Since October 2016, anyone who wants police body camera footage released has had to petition a court — and many of them have succeeded.
The law, commonly referred to as House Bill 972, was signed into law by then-Gov. Pat McCrory and set new procedures for how to release footage from body cameras and dashboard cameras used in policing. Prior to the law, there was little consistency across the state for how to release or classify body camera footage.
More than a year later, the law change has allowed for a clearer pathway for releasing footage and created consistency across the state, but some concerns about transparency and surveillance remain. Changes are already on the horizon to ensure that police review boards will have easier access to the footage.
Jeff Welty, an associate professor at UNC-Chapel Hill's School of Government, said the law has resulted in greater consistency. Previously, he explained, some law enforcement agencies would classify the footage as part of an officer's personnel record. Others would say it's part of an investigative record, which means it wouldn't be released, while other agencies would release the video.
Rep. John Faircloth, a Guilford County Republican, was the bill's chief sponsor. He's satisfied with the bill and how it's been implemented.
"I think it's made better police officers out of our sworn personnel and I think they have adjusted their work day to realize that almost the whole world could be looking," Faircloth told the NC Insider recently.
He said the law was written to create a statewide protocol for how the images and footage would be released through the legal system. "The trail of those images through the legal process was a major undertaking and that's where a lot of the discussion and fear (was) in some cases, and there was a lot of give and take for a good while," Faircloth said.
The law requires individuals who want the release of footage from police body cameras to petition a Superior Court judge. However, individuals depicted in the footage — or an individual's personal representative in some circumstances — are allowed to view the footage if they request it from a law enforcement agency. It's not guaranteed they will be allowed to view it.
Anyone can ask for a court order to release the footage.
It's unclear how many people have petitioned the courts to release footage. But Welty said that at a recent conference he attended, a presenter asked individuals who had dealt with the process to raise their hands, and he said there were "quite a few raise of hands."
Welty believes the law provides a procedure for balancing transparency and privacy and puts that control in the hands of the courts. "As far as I know, we're the only state that needs a court to be the decision maker in the first instance," he said.
Eddie Caldwell, executive vice president and general counsel for the N.C. Sheriff's Association, said the body camera law is "one of the best drafted bills and best functioning pieces of major legislation."
He said it has given guidance to both those who keep the footage and those who want the release of the footage, noting that the law has "taken a big burden off of the law enforcement agencies."
But Susanna Birdsong, policy counsel with the American Civil Liberties Union of North Carolina, said the law is "extremely restrictive" and goes too far in restricting access to the footage for anyone who isn't part of a law enforcement agency. While she agrees the law has provided consistency and clarity, she said that consistency has also resulted in a lack of transparency.
She noted the minimum amount of access is allowing those who are depicted in the footage — or their representatives — to view it, but because of how the law is written, a law enforcement agency could still choose not to disclose it to them. "That in our opinion is the bare minimum of access if body cameras are going to serve the purpose they were designed for."
The ACLU of North Carolina isn't advocating for all footage to be released or accessible through public records law, but says police use-of-force claims should be more readily available so the public can inspect the footage. And the group argues that all subjects in the footage, or their representatives, should have access no matter the case.
In North Carolina, the shooting death of Keith Lamont Scott in Charlotte in September 2016 was one of the last use-of-force cases where video was released without needing a court order — only because it happened right before the law went into effect. Amid pressure from the public, the Charlotte-Mecklenburg Police Department released the footage.
The body camera law has been out of the spotlight for awhile, save for several court cases in the state in which news organizations successfully petitioned to get the release of footage.
In October, Superior Court Judge W. Todd Pomeroy ordered the release of footage from the Sept. 6, 2017, shooting death of of Reuben Galindo, who was shot by police in Charlotte. The Charlotte Observer and the SAFE Coalition NC petitioned for the release of the footage. Pomeroy found that releasing the footage was "necessary to advance a compelling public interest," and that releasing the recordings wouldn't interfere with any internal investigations.
In February, another Mecklenburg County Superior Court judge did not release footage related to a police shooting outside of police headquarters on Jan. 11. Judge Nathaniel Poovey ruled the video wouldn't be released even though the attorneys for Charlotte police and attorneys for the officers involved didn't object to it being released. However, the assistant district attorney objected to the release because the DA's office hadn't finished its investigation into the incident. In that case, WBTV reporter Nick Ochsner filed the petition on Jan. 12 — the day after the incident. He represented himself in the court hearing.
A case in Asheville illustrates the constraints of the law. In late February, The Asheville Citizen-Times obtained a copy of a police body camera video that shows an officer beating Johnnie Jermaine Rush, a black man who was accused of jaywalking late at night in August 2017.
Rush was stopped on his way home from work that night. Afterwards he briefly ran from the cops before he was beaten. Since then, the Asheville Police Department has initiated a criminal investigation into the officer's actions that night, but had the video not been leaked, the public might never have found out about it. The officer involved wasn't disciplined until months after the incident.
"This is exactly the type of instance where the public has every right to inspect these interactions between police and community members," Birdsong said of the Asheville incident. "He was stopped initially for jaywalking. How did a stop for jaywalking escalate to being pinned down and beaten? The public should have know about that sooner than they did. These are the instances you think about why body cameras are so important."
Faircloth is already working to update the bill in some ways — but ways that wouldn't change how the footage is released. House Bill 797 has cleared the state House and would update some of the language around who within a local government would be able to view the footage.
"Where we've seen glitches, we've tried to iron that out," Faircloth said of the changes.
During the legislative process, however, a portion of the bill was removed that would have allowed for the release of footage to a citizen review board upon the recommendation of the city manager and a majority vote of the city council, so the board could avoid going through the full legal process. Now the bill is stalled in the Senate Rules Committee, but Faircloth doesn't think it's because anyone in the Senate has an objection — it just has to wait its turn to be heard. "I think I've taken care of the concerns that were there (on HB 797), and I think if the Senate would work with me, we could accomplish that change and get the bill passed," he said.