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The Watchman Blinded: Does North Carolina Public Records Law Frustrate the Purpose of Police Body Worn Cameras, 94 N.C

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The Watchman Blinded: Does North Carolina Public Records Law Frustrate the Purpose of Police Body Worn Cameras, 94 N.C NORTH CAROLINA LAW REVIEW Volume 94 | Number 1 Article 7 12-1-2015 The aW tchman Blinded: Does North Carolina Public Records Law Frustrate the Purpose of Police Body Worn Cameras Brian Liebman Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Brian Liebman, The Watchman Blinded: Does North Carolina Public Records Law Frustrate the Purpose of Police Body Worn Cameras, 94 N.C. L. Rev. 344 (2015). Available at: http://scholarship.law.unc.edu/nclr/vol94/iss1/7 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 94 N.C. L. REV. 344 (2015) The Watchman Blinded: Does the North Carolina Public Records Law Frustrate the Purpose of Police Body Cameras?* INTRODUCTION A man lies dead in the middle of the street, shot by a police officer. Before the body is even taken away, two distinct accounts of the shooting emerge. The officer claims that the shooting was legitimate, done in self-defense after the man reached for the officer’s gun, started to run away, and then turned and charged the officer through a hail of bullets. However, the dead man’s friend claims that the officer initiated the contact, reaching through his cruiser’s window to choke and batter the man, who ran and was shot while attempting to surrender. Forensic evidence generally supports the officer’s account, but is not dispositive. Witness testimony is unreliable— stories change, accounts vary between witnesses, and no consensus emerges. With no definitive evidence on either side, the grand jury declines to indict the officer and the community explodes in outrage. Anyone who followed the news in 2014 will recognize in this scenario the features of the Michael Brown shooting, which dominated the news between August, when the shooting occurred,1 and late November, when the grand jury declined to indict Ferguson police officer, Darren Wilson.2 In the wake of the Brown shooting and other incidents of alleged police misconduct,3 high-profile public officials and advocacy groups have called for police officers across the nation to begin wearing body * © 2015 Brian Liebman. 1. In News Conference, Police Speak of Struggle Before Officer-Involved Shooting, KMOV (Aug. 10, 2014, 1:09 AM), http://www.kmov.com/story/28461350/in-news-conference-police-speak- of-struggle-before-officer-involved-shooting [http://perma.cc/KXZ7-MNGS (dark archive)]. 2. Monica Davey & Julie Bosman, Protests Flare After Ferguson Police Officer Is Not Indicted, N.Y. TIMES (Nov. 24, 2014), http://www.nytimes.com/2014/11/25/us/ferguson-darren- wilson-shooting-michael-brown-grand-jury.html?_r=0 [http://perma.cc/2N3X-HH99]. 3. A few days after the grand jury declined to indict Darren Wilson, police in Cleveland shot and killed a twelve-year-old boy who was armed with only an air gun. Jane Onyanga-Omara & John Bacon, Police: Video Clearly Shows Shooting of Ohio Boy, 12, USA TODAY (Nov. 24, 2014, 6:14 PM), http://www.usatoday.com/story/news/nation/2014 /11/24/cleveland-shot-boy/19471925/ [http://perma.cc/HRB6-QY6H]. A few days later, a New York City grand jury declined to indict a police officer in the death of Eric Garner, who died after being put in a chokehold. Larry Celona, Kirstan Conley & Bruce Golding, Cop Cleared in Chokehold Death of Eric Garner, N.Y. POST (Dec. 3, 2014, 2:15 PM), http://nypost.com /2014/12/03/cop-cleared-in-eric-garner-chokehold-death/ [http://perma.cc/W8JP-8AZE]. 94 N.C. L. REV. 344 (2015) 2015] BODY CAMERAS & PUBLIC RECORDS LAWS 345 cameras4 in an effort to document and eventually root out most police misconduct.5 States and cities across the country have responded to the call; by November 2014, forty-one of the one hundred largest cities in America equipped at least some of their officers with body cameras.6 Another twenty-five large cities have plans to begin use of body cameras in the future.7 New Jersey and South Carolina have already introduced legislation requiring law enforcement officers to wear body cameras.8 Additionally, Maryland, Connecticut, Texas, Illinois, Oregon, Michigan, and New York have either passed legislation or are considering expanding, regulating, or otherwise 9 encouraging the use of body cameras. 4. See, e.g., Doug Oakley, In Oakland Meeting, Attorney General Eric Holder Calls for Body Cameras, CONTRA COSTA TIMES (Feb. 6, 2015, 6:43 AM), http://www .contracostatimes.com/breaking-news/ci_27469077/oakland-meeting-attorney-general- eric-holder-calls-body [http://perma.cc/33BG-4MG4]; Thomas Vick, Barber Expected To Lead State NAACP Support Effort for Police Body Camera Mandate in NC General Assembly, GOLDSBORO DAILY NEWS (Dec. 12, 2014), http://goldsborodailynews.com /blog/2014/12/12/barber-expected-lead-state-naacp-support-effort-police-body-camera- mandate-nc-general-assembly/ [http://perma.cc/HX4T-SMR8]; White House Urges Body Cameras for Police After Ferguson, FOXNEWS.COM (Dec. 1, 2014), http://www.foxnews .com/politics/2014/12/01/white-house-encourages-use-body-cameras-for-police-after- ferguson/ [http://perma.cc/FE5H-RL7L]. 5. JAY STANLEY, ACLU, POLICE BODY-MOUNTED CAMERAS: WITH RIGHT POLICIES IN PLACE, A WIN FOR ALL 1 (2013), https://www.aclu.org/files/assets/police _body-mounted_cameras.pdf [https://perma.cc/SM7X-CHV5]; Timothy B. Lee, Here’s Why Cops Should Be Required To Wear a Lapel Camera While on Duty, WASH. POST: THE SWITCH (Oct. 10, 2013), http://www.washingtonpost.com/blogs/the-switch/wp /2013/10/10/heres-why-cops-should-be-required-to-wear-a-lapel-camera-while-on- duty/ [http://perma.cc/XR2L-VWPS]. 6. Abigail Tracy, EJ Fox & Ryan Walsh, Is Your Police Force Wearing Body Cameras?, VOCATIV (Nov. 15, 2014, 10:11 AM), http://www.vocativ.com/usa/justice-usa /police-force-wearing-body-cameras/ [http://perma.cc/W9AC-CGXL]. 7. Id. 8. See, e.g., Geoff Mulvihill, All New Jersey Troopers To Get Body Cameras Within a Year, ASSOCIATED PRESS (July 28, 2015, 4:24 PM), http://bigstory.ap.org/article /5916b323ff0244379ab023828c2cb8ac/new-jersey-troopers-getting-body-cameras-under-new- policy [http://perma.cc/J85Q-Z6H8]; Lindsay Tuman, South Carolina Body Camera Law Takes Effect with No State Guidelines, WRDW (July 2, 2015, 12:14 AM), http://www.wrdw .com/home/headlines/South-Carolina-body-camera-law-takes-effect-with-no-state-guidelines -311358381.html [http://perma.cc/77PB-4VH3]. 9. Maxine Bernstein, Oregon House Votes 50–9 To Support Police Body Camera Bill, OREGONLIVE (June 15, 2015), http://www.oregonlive.com/politics/index.ssf/2015/05 /oregon_house_votes_49-10_to_su.html [http://perma.cc/H3HX-UMYE]; Will Bredderman, Democrats Push Bill To Make Cop Body Camera Footage Available to Public, N.Y. OBSERVER (Aug. 6, 2015, 4:55 PM), http://observer.com/2015/08/democrats-push-bill-to- make-cop-body-camera-footage-available-to-public/ [http://perma.cc/L23M-LZAV]; Michael Dresser, State Begins Drafting Rules for Police Body Cameras, BALT. SUN (Aug. 4, 2015, 7:47 PM), http://www.baltimoresun.com/news/maryland/politics/blog/bs-md-body-camera-panel- 20150804-story.html [http://perma.cc/UKF2-Z5QZ]; Kathleen Gray, Police Body Cams: Bill Would Exempt Footage from FOIA, DET. FREE PRESS (Apr. 14, 2015, 5:22 PM), http://www 94 N.C. L. REV. 344 (2015) 346 NORTH CAROLINA LAW REVIEW [Vol. 94 In North Carolina, state Rep. Cecil Brockman has introduced a bill requiring all law enforcement officers to wear body cameras.10 Proponents of this requirement point to studies indicating that body cameras effectively reduce the number of violent police encounters, decreasing the likelihood that either the officer or the citizen will resort to violence.11 Others in favor of the requirement claim that body cameras will provide a sense of accountability and transparency between police and the public that is currently lacking.12 A first- person13 video record of an incident provides the best possible .freep.com/story/news/local/michigan/2015/04/14/emerging-body-camera-technology- prompts-privacy-concerns/25778495/ [http://perma.cc/A4A2-7VDJ]; Jessie Hellmann, Illinois Senate Sends Rauner Police Body Camera Measure, CHI. TRIB. (May 30, 2015, 4:53 PM), http://www.chicagotribune.com/news/local/politics/ct-illinois-police-body-camera-20150530- story.html [http://perma.cc/6QNK-LNJV]; Eva Hershaw, Senate Approves Body Camera Legislation, TEX. TRIB. (Apr. 23, 2015), http://www.texastribune.org/2015/04/23/senate-oks- bill-creating-statewide-police-body-cam/ [http://perma.cc/5QQR-3CWU]; Mark Pazniokas, Legislators Approve ‘Second Chance,’ Body Camera Bills, CONN. MIRROR (June 29, 2015), http://ctmirror.org/2015/06/29/house-approves-police-accountability-bill/ [http://perma.cc/AQN9-GSNZ]. 10. H.B. 395, 2015–2016 Gen. Assemb., Reg. Sess. (N.C. 2015); Amanda Lehmert, Bill Calls for Police Body Cameras, GREENSBORO NEWS & REC. (Dec. 7, 2014, 5:15 AM), http://www.news-record.com/news/bill-calls-for-police-body-cameras/article_68c1e520- 7d94-11e4-9047-4bd147b13002.html [http://perma.cc/LQG4-YMC9]. 11. See infra Section II.A; see also Barak Ariel, William A. Farrar & Alex Sutherland, The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial, 31 J. QUANTITATIVE CRIMINOLOGY 509, 526–27 (2015) (highlighting the results of a twelve-month study that found that body cameras resulted in fewer use-of-force incidents and fewer citizen complaints in Rialto, California); Stav Ziv, Study Finds Body Cameras Decrease Police’s Use of Force, NEWSWEEK (Dec.
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