Town of Carrboro preempts legal challenge to N.C. body camera law

By Ari Sen 

Carrboro’s town attorney thinks body camera video should be seen by community leaders.

And he thinks he just might have a way around a new state law that would prohibit such disclosures.

“The statutes say the council of a city runs, or are the corporate officers of the city and that includes the police department. The statutes say that the manager is essentially the chief executive officer and administrator of all personnel in the city,” Town Attorney Nick Herman said in an interview.  “So if you’ve got the police department doing something on tape arguably under the statutes that would empower the manager to be the administrator of the city and he outta be able to see that tape.”

After two years of deliberation and refinement, the Carrboro Board of Alderman passed a measure 4-1 at the Feb. 28 board meeting which would authorize body camera use by the town police department. Body camera video disclosure is governed by N.C. General Statute 132, which went into effect on Oct. 1, 2016.

Under the new law, police body and dash camera recordings are no longer part of the public record and only legal representatives of those in the recordings could request to see the footage from a police department. The police department, however, would not be legally required to allow them to view the footage.  If the footage wasn’t handed over to the representative, they could then request the footage from a superior court judge. For any other person who wants access to the footage, they must request access to it in court from a superior court judge.

The Carrboro resolution was developed in a collaboration between the aldermen, the town police department and attorneys for the town, police department and the American Civil Liberties Union.

Upon request from the ACLU, the town implemented measures in the new policy that places the presumption on disclosing all footage unless the police chief has a legitimate reason not to do so.

The aldermen also authorized four new motions to the policy before it passed on Tuesday night including resolutions striking language that reiterated the general statutes excluding the recordings from the public record and adding language allowing the town to read the new policy in ways that could potentially allow their access to any police tapes.

“My position on that is that we are bound by the statute… we cannot bring a facial challenge to it,” Herman said in the meeting. “There is nothing unlawful about the statute itself, its enactment or what it says. What the fight would be potentially is an interpretation of the reach of the statute—what it means. Some of us believe that the statute must be read in light of other statutes that the manager is empowered to do certain things and empower (the alderman) to do certain things. Viewed that way is disclosure or release may be more expansive than just what’s literally stated in this.”

UNC-Chapel Hill School of Government professor Jeff Welty said in a September interview that despite other states passing laws governing body camera footage, North Carolina’s law is unique.

“(Other) states are all over the map,” Welty said. “But one aspect of our law that that’s unique is that I don’t think there is any other state in which there is no way to get access to a recording like this except through a court order.”

Alderman Sammy Slade voted against the policy Tuesday night because he said the state law limits one of the original intentions of body cameras.

“I feel that one of the values that video footage has… is for the public to serve to hold accountable not just the police force but (also) the justice system itself,” Slade said in the meeting.

“A superior court judge is accountable to a larger group of people who vote for him than a Board of Aldermen or an elected body is. Other people participating that have other issues or concerns may not feel the accountability that may happen is as direct”

Alderman Bethany Chaney said that despite objections to the state law she supports the new policy.

“I’m very much in support of this policy,” Chaney said. “I think the two years it’s taken to get here has been appropriate.”

Gov. Pat McCrory said when he signed the law on July 11 that statute is designed to increase transparency.

“This legislation fulfills our commitment to protect our law enforcement and gain public trust by promoting uniformity, clarity and transparency,” McCrory said.

Gov. Roy Cooper opposed the law in his campaign against McCrory, criticizing it as misleading and not transparent.

“Cooper has consistently said he supports the use of body cameras in law enforcement but the law signed by Governor McCrory doesn’t do enough to ensure transparency,” Cooper campaign spokesman Ford Porter said in a statement. “Transparency is vital to building trust and respect between law enforcement and the communities they protect. It’s a shame that (the) Governor insists on attempting to mislead voters instead of taking responsibility for the law he signed.”

Herman said that releasing the tapes to the public could potentially expose the town to legal action.

“My view is the manager needs to know about (an incident) immediately and then the manager outta be able to to come in here and closed session and show you the tape and say ‘We gotta do something about this’ because what your lawyers gonna say is ‘We are gonna get the hell sued out of us,’” Herman said after the meeting.  “Now releasing to the public is sticky wicket. There would be at least legitimate arguments about some safeguard about putting this out in the public domain only because take an ambiguous tape—everybody sees what they want to see.”

Local ACLU attorney Susanna Birdsong, who collaborated on the Carrboro policy, also criticized the law in September after violent protests erupted in Charlotte, N.C. over the shooting death of Keith Lamond Scott.

“Under this shameful new law, North Carolinians will have to spend time and money seeking a court order if they want to obtain police footage they themselves are in – and even then, they could still be denied,” Birdsong said in a statement. “The law also prohibits law enforcement agencies from releasing footage in the public interest – as we have seen officials do recently in Greensboro, Charlotte and Tulsa, Oklahoma – without a court order, which is why it has been criticized by police chiefs in Burlington, Fayetteville, and Greenville, and people across the state.”

The Carrboro policy would allow officers to view recordings prior to writing their reports, except in cases of officer involved shootings. In the event of a shooting, the officer would be suspended for two to three days and then would be required to write a statement about the shooting before they could view the tape. The written statement could then be amended thereafter, but the original draft of the statement would be kept.

Carrboro Police Chief Walter Horton said he supports the new policy, but it will not be the panacea to police-resident relations.

“My two cents—we’ve got a solid policy,” Horton said in the meeting. “I am looking forward to (body worn cameras) but they are not gonna be the end-all solution, the everything that’s gonna answer every question… but I’d rather have it and not need it than need it and not have it.”

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