Who Watches the Watchers?

by Jay Marshall Wolman

On May 25, 2020, George Floyd was killed by then-Minneapolis police officer Derek Chauvin during an arrest of Floyd for allegedly using a counterfeit $20 bill to purchase a pack of cigarettes.

A 17-year old filmed the arrest and murder, which was then shared and resulted in protests against system racism and police brutality in all 50 states. But, according to the criminal complaint charging Chauvin, it was not the teenager’s video that provided the evidence to support the charge. Instead, it was police body cameras.

That video has not been released. For all we know, if Chauvin does not have a trial (by plea deal or some legal defect in the charge), the video may never become public.

I am currently litigating a matter in Connecticut where my client is seeking police footage of her own interaction with officers. The police have resisted, under the state Freedom of Information law, under a provision that says they do not have to produce it if it contains “uncorroborated allegations” of criminal activity. Essentially, their argument is that if no one is convicted, state law allows the video to remain hidden.

Minnesota’s FOI law seems a bit more open, permitting disclosure in “inactive” case. Assuming there were no other videos or witnesses to his murder, and no uproar and investigation into the death as a crime itself, the body cam footage of George Floyd’s arrest and death could probably be disclosed, since the counterfeiting case would be “inactive”. If this had happened in Connecticut, since Mr. Floyd’s death precludes his conviction, the body cam footage might not be made public, as it may contain uncorroborated allegations of his unproven criminal activity.

The point of body cam footage is so that we do not simply take the responding officer at his/her word. All a Connecticut officer (or officer of another state with a similar provision) need do to escape liability for abuse is kill their victim or otherwise lose the case. Any innocent person who is unlawfully abused during the arrest, even the victim him/herself, would be denied access to the footage.

Police cameras do represent an intrusion into privacy, and there is a legitimate debate as to whether they should be wearing them. And, there are debates as to whether they should individually have the power to turn them off. (I think they should, such as when they use the bathroom, but if they turn them off in the context of their duties, they should be significantly disciplined and there should be a presumption against the credibility of their testimony as to the unfilmed interaction.) But, if the video exists, it should be made public or, if publicity would be against public interest (unduly invading someone’s privacy, compromising investigations, etc.) then it should still be releasable to subjects of the videos (or their estates), possibly subject to a protective order.

We should not have to rely on a 17-year old with the fortitude to record a crime in progress in order that criminals who happen to wear a badge face justice.

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