Two important government institutions – the police and the justice system – operate largely in a black box. The police carry out most of their daily activities outside the watchful eye of the public. Judges, too, typically operate in empty courtrooms with limited public oversight. But since March 2020, the sunlight on these two government bodies has started to shine brighter.
The COVID-19 pandemic and the uprising for racial justice that followed the murder of George Floyd have provided new opportunities to observe the government in action. Police-worn cameras (BWC) and video taken by 17-year-old Darnella Frazier captured the brutal murder of Floyd at the hands of the Minneapolis Police Department, raising awareness of the importance of a strong right to record the police and the need for public access to BWC records. Social distancing requirements have forced courts to revisit decades-old policies banning recording devices in courtrooms and accelerating live audio and video technology, giving the public a glimpse inside the courts .
For these and other reasons, issues of access to BWC recordings, the right to record police, and cameras in courts have received increased attention over the past two years. This article discusses recent events surrounding these three important issues, the current state of the law, and what this means for the future of police transparency and access to courts.
Access to Police Worn Camera (BWC) Recordings
Access to BWC records has lagged behind the drastic increase in BWC usage over the past decade. In 2016, nearly half of US law enforcement needed BWCs, and police departments in many states, including California, Colorado, and New York, are required to use them. Yet access to BWC records is restricted in many jurisdictions. State legislatures have enacted a wide range of laws to determine if and when BWC records are made public.
In Texas, for example, the public can submit written requests for BWC recordings, but there are numerous exceptions to disclosure under the state’s public information law, and police cannot disclose any part a recording made in a private space or a recording involving the survey. an offense punishable by a fine only and which does not give rise to an arrest without the authorization of the person who is the subject of the recording. Other states offer a range of policies:
- California requires BWC records to be released within 45 days of an incident.
- Colorado requires BWC records to be released within 21 days of receiving a complaint. This period may be extended to 45 days if the dissemination of the recording risks compromising an investigation.
- Florida generally releases BWC recordings under the state public records law, but there are exceptions, such as when recordings capture private residences, health care and social service facilities, or places where there is a reasonable expectation of confidentiality.
- Maryland permits broadcast of BWC recordings under the state’s Open Recordings Act.
- New Jersey releases BWC recordings to those involved in an incident (or their attorneys) and when the public interest outweighs privacy interests.
- South Carolina requires records to be retained for at least 14 days.
The Journalists Committee for Freedom of the Press and the Brennan Center for Justice maintain databases showing the patchwork of BWC policies.
The BWC tapes played a pivotal role in Derek Chauvin’s trial as the public and jurors witnessed the violence of the Minneapolis Police Department up close. This month, BWC tapes changed the narrative surrounding the death of Amir Locke while executing a no-hit search warrant. The Minneapolis PD initially claimed that Locke pointed his gun at officers. But BWC tapes released days later contradict those claims, showing that Locke did not target the officers with his gun. Five days later, the police arrested the real suspect in the murder.
As the Amir Locke case shows, BWC tapes can be powerful tools for policing, but that oversight can only happen if the tapes are made public.
Right to register the policy
The First Amendment protects the right to publicly record police performing their duties in public in 61% of the country. Five federal appeals courts – the First, Third, Fifth, Seventh and Ninth Circuits – have recognized this right, while the other circuits have yet to decide the issue. This fall, the United States Supreme Court ducked the opportunity to pass a nationwide law to register police. See Fraser v. Evans992 F.3d 1003 (10th Cir. 2021), certificate deniedno. 21-57.
During protests after the murder of George Floyd and other incidents of police brutality, the public and the press exercised their right to police registration in record numbers. But the police often did not respect this right. The American Press Freedom Foundation found that 80% of the record 438 assaults and 142 arrests of journalists in 2020 occurred during protests. As of December 16, 2021, journalists have filed 45 lawsuits against police officers in 24 cities for First and Fourth Amendment violations following arrests and assaults during protests.
Many of these lawsuits are still pending. In August 2021, five news photographers sued the New York Police Department under 42 USC § 1983 for allegedly targeting them while peacefully recording police activity from a public street and sidewalk. Gray c. New York City, no. 21-cv-06610 (SDNY). The case is currently in the discovery phase of litigation. But other lawsuits have been resolved. In February 2022, the ACLU of Minnesota settled a lawsuit brought by journalists injured while covering protests in Minnesota. The state agreed to pay $825,000, change several policies, and end acts of violence against journalists. A list of other lawsuits filed by journalists against police officers is maintained by the US Press Freedom Foundation.
The doctrine of qualified immunity has also undergone recent reforms. When filing a civil rights lawsuit, a plaintiff must prove that the police violated a “clearly established” constitutional right. Because the United States Supreme Court has set the bar high when a right is “clearly established,” state legislatures have stepped in and passed qualified immunity laws. New Mexico and Colorado, for example, have banned qualified immunity. Yet winning a civil rights lawsuit remains a difficult and costly undertaking.
In addition to the civil lawsuits, criminal charges have been brought against the police for violence against the public and the press during demonstrations. For example, a Travis County grand jury indicted 19 Austin police officers for excessive force after about 30 protesters were injured during the George Floyd protests, according to the Austin American-Statesman. Officers allegedly used rubber bullets and rubber bullets against protesters, causing brain damage and broken bones. Austin officials have already agreed to a $10 million settlement for two of those injured protesters.
Cameras in the courts
Courts have recognized a right to access court proceedings and First Amendment documents, but this right has not been extended to the use of audio or video recording devices in court. Instead, the courts have largely banned the public and the press from recording court proceedings. For example, Federal Rule of Criminal Procedure 53 prohibits photography or broadcasting of federal criminal hearings. State courts vary on whether audio or video recordings are permitted.
Due to strict capacity limits during the COVID-19 pandemic, many courts have implemented new policies providing electronic or telephone access to parties via platforms such as Zoom and YouTube, and most courts have extended this. remote access to the public.
The pandemic has provided the public and the press with a front row seat for the Derek Chauvin trial in Minnesota. District courts in Hennepin County traditionally allowed cameras in criminal trials only with the consent of all parties. In the Chauvin case, his lawyers consented to the cameras, but not the prosecutors. But due to social distancing requirements limiting the number of people who can be in the courtroom, the court ruled that cameras should be allowed to preserve Chauvin’s Sixth Amendment right to an open trial and the right to Access to the First Amendment. The court wrote, “The press not only publishes trial information, but guards against miscarriages of justice by subjecting police, prosecutors and court proceedings to intense public scrutiny and criticism. (quoting Sheppard versus Maxwell, 384 U.S. 333, 350 (1966)). A coalition of media organizations has banded together to implement the court’s decision. Court TV broadcast the trial live, while two pool print reporters and two pool broadcast reporters served as eyes and ears for the audience in the courtroom.
The pandemic has also improved public access to the United States Supreme Court. While the Court had previously made available audio recordings of the pleadings on a deferred basis, beginning in May 2020 the Court streamed the audio of the pleadings live while judges and counsel participated remotely. After in-person proceedings resumed, the Court continued to allow live audio streaming. The Court has not announced whether this access will continue.