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Police often use broad exemption to keep videos from public

DEFENDER NEWS NETWORK — The video is brief but disturbing: An officer is seen hitting an unarmed suspect with his pistol as the man falls into the grass. An autopsy would later show that he died from a gunshot to the back of the head.

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By Defender News Service

The video is brief but disturbing: An officer is seen hitting an unarmed suspect with his pistol as the man falls into the grass. An autopsy would later show that he died from a gunshot to the back of the head.

After the death last July of 26-year-old Daniel Fuller in Devils Lake, North Dakota, investigators described the video to his grieving relatives. But for days, weeks and then months, they refused to release it to the family or the public. They did so only after a prosecutor announced in November that the officer did not intend to fire his gun and would not face criminal charges.

“It took forever for them to release the video because they kept saying it was an ongoing investigation,” said Fuller’s older sister, Allyson Bartlett. “I don’t think they wanted pressure from the community.”

Her experience is typical. An investigation by The Associated Press has found that police departments routinely withhold video taken by body-worn and dashboard-mounted cameras that show officer-involved shootings and other uses of force. They often do so by citing a broad exemption to state open-records laws — by claiming that releasing the video would undermine an ongoing investigation.

During the last five years, taxpayers have spent hundreds of millions of dollars to outfit officers’ uniforms and vehicles with cameras and to store the footage they record as evidence. Body cameras, in particular, have been touted as a way to increase police transparency by allowing for a neutral view of whether an officer’s actions were justified. In reality, the videos can be withheld for months, years or even indefinitely, the AP review found.

To be sure, some departments voluntarily release videos of high-profile incidents, sometimes within days or weeks. They also are forced to share them during civil rights lawsuits or air them when suspects face trial. Many also routinely release videos that show officers in a positive light, such as when they rescue people from accidents, fires and other dangers. But how requests are handled when they are requested by citizens, reporters and government watchdogs varies widely.

The AP tested the public’s ability to access police video for Sunshine Week, an annual celebration of open government, by filing open records requests related to roughly 20 recent use-of-force incidents in a dozen states.

They were met with a series of denials and failed to unearth video of a single incident that had not already been released publicly. Some videos could be released in coming months or years once criminal and disciplinary investigations are concluded. By then, the public interest in knowing what happened may have waned significantly.

In rejecting or delaying the requests, most law enforcement agencies and prosecutors cited exemptions that allow them to keep records of pending investigations secret. One county claimed the exemption would allow it to keep the video of a motorist’s fatal shooting secret forever — even though the investigation has concluded and cleared the deputy involved.

Critics say the exemption is often misapplied to keep from public view video that might shine an unfavorable light on the actions of officers. The exemption is intended to protect sensitive details about investigations that might tip off suspects that they are under scrutiny or alert them to what evidence police have obtained. But when officers shoot or otherwise use force on suspects, they know their actions are the focus of the investigation and often have access to the videos of the incidents.

“It is for that reason that the investigative records exemption literally makes no sense and should have no place when it comes to police body camera footage. It is a square peg in a round hole,” said Chad Marlow, an expert on laws governing body cameras at the American Civil Liberties Union. “We didn’t know that would end up being the get-out-of-FOIA free card for police departments, but it has certainly turned into that.”

Authorities say they have good reason for withholding video during investigations, such as preventing the memories of witnesses from being tainted or sparking protests with an out-of-context snippet of a deadly encounter. But the problem, said former federal prosecutor Val Van Brocklin, is that “there is no national standard of when and how this stuff gets released.”

“It’s such a mish-mash, and that creates a problem with expectations,” she said.

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In West Virginia, a prosecutor withheld a video that led to the firing of two state troopers for allegedly beating a 16-year-old suspect. In Georgia, a county sheriff’s office refused to release video of a 22-year-old man who allegedly shot himself to death while struggling with police, an explanation that has been questioned and sparked protests.

In Atlanta, where officers were recently criticized in an audit for failing to use their body cameras as intended, the department would not release video of an officer-involved shooting that happened last summer, saying the officer could potentially still face disciplinary action.

“I see it all over the nation that police departments use this catch-all of ‘ongoing investigation’ to basically throw up a stone wall in front of those that might like to find out the truth,” said attorney Jonny Hibbert, who is representing the family of an 18-year-old Atlanta man who was shot and killed by an off-duty officer after allegedly stealing his car. His request for any video of that incident was recently denied.

The department in Sugar Land, Texas, which recently released dramatic video of officers rescuing a woman from a lake, refused to divulge footage of a 2016 struggle in which a man alleges he was beaten and severely injured by officers. In Seagoville, Texas, the department would not release video showing an officer using a stun gun to subdue a teenager brandishing a toy gun, even though it had publicized the incident as a textbook example of officers showing restraint. The department denied access because AP didn’t know the name of the teen involved in the Oct. 4 incident. It said that piece of information must be provided to request police videos under Texas law.

In North Liberty, Iowa, a city lawyer responded to a request for video of a traffic stop by calling it a confidential investigative record — then demanded the AP not publish footage of the incident it had already obtained.

The city had fired a patrol supervisor for mishandling the stop, claiming he violated the rights of suspects in a road rage incident, failed to draw his weapon and made other procedural errors. The supervisor has filed a lawsuit contesting his firing, and his attorney provided the AP with footage that he says shows his client acted appropriately. The city released a redacted version of the video only after AP declined the city’s request.

In the aftermath of the 2014 shooting of Michael Brown in Ferguson, Missouri, and similar deaths of unarmed black men, police departments around the country faced public pressure to begin using body cameras. Rather than resist, said Marlow, the ACLU expert, they embraced cameras — but often only released videos that showed police in a positive light.

“The decisions about whether footage is being released or not is being dominated by the group that is supposed to be watched,” he said. “When that happens, police body cameras go from being a tool for transparency and accountability into a propaganda tool.”

It’s not that way everywhere.

California’s state capital, Sacramento, has been roiled by protests over police shootings of unarmed black men — most recently, after the district attorney and state attorney general declined to bring charges against two officers in the fatal shooting of Stephon Clark, who was found to be holding a cellphone after he was killed. Police video of that shooting helped fuel the protests.

The department is among the most transparent in releasing officer videos; city policy that predates the Clark shooting requires the police department to release footage within 30 days of a major incident or justify why it won’t. In some cases, the department has released footage within days.

“We hope to say that we’re leading the way in releasing it and being transparent,” said a department spokesman, Marcus Basquez. “That’s a big priority for us, to build that trust with our community, and we feel releasing body-worn camera footage is one way.”

A state law taking effect in July requires all state and local law enforcement agencies in California to make audio and video recordings of critical incidents publicly available after 45 days, unless it would hinder an investigation. If it withheld recordings longer than a year, a department would have to show “clear and convincing evidence” of that assertion.

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Police videos are considered public records in nearly every state, but vague laws and exemptions often give police chiefs and prosecutors wide discretion to determine when to release them.

A few states have limited the release of footage by exempting police videos from open records laws or requiring court orders to obtain their release. Others have carved out privacy exemptions for videos that show private homes, hospitals or juveniles.

The New York City Police Department, the nation’s largest, stopped releasing body camera videos entirely last year after a police union successfully argued in court that they were confidential personnel records. But the department vowed last month to continue releasing video of officer-involved shootings after an appeals court ruled that the union’s argument “would defeat the purpose of the body-worn-camera program.”

Adam Marshall, a lawyer for the Reporters Committee for Freedom of the Press, in 2015 called police body camera videos the “Wild West of open records requests” because of the uncertainty surrounding how they would be handled. Today, he says a growing number of court cases and state laws have made for more certainty — that many requests will be denied or delayed.

“It’s disappointing,” he said. “Unfortunately, it does not reflect the type of transparency and openness that the public hoped would result from body cameras.”

This article is originally appeared Defender News Network

Bay Area

Vallejo Police Chief Issues Statement After Chauvin Verdict

“Creating a systemic culture that embraces the core values of dignity, safety, respect, and compassion is our charge in leadership and a call to action for us all. The status quo isn’t acceptable. We can and must do better. We will do better.”

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“Today, justice was appropriately served. Police officers should be guardians of the communities we are sworn to protect and serve. Our task is to embrace the principle of safety with respect — respect for human dignity, respect for the sanctity of life, and respect for what our communities are demanding of us.

“As a law enforcement executive, I acknowledge it is my obligation to lead with purpose and urgency. Policy change isn’t enough. Creating meaningful cultural change is imperative.

“Creating a systemic culture that embraces the core values of dignity, safety, respect, and compassion is our charge in leadership and a call to action for us all. The status quo isn’t acceptable. We can and must do better. We will do better.

“Those of us entrusted with the responsibility of law enforcement must build trust where we have it, restore trust where we’ve lost it, and earn trust where it never existed. These responsibilities should only be entrusted to those who have a record of successful accomplishments consistent with these values.

“This is what our citizens and communities want, this is what they deserve, and this is what we must deliver.”

Vallejo Chief of Police Shawny Williams

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Community

A Diverse Jury Delivers Justice for George Floyd

Right up to when the verdict was read the anxiety level was so high, people all over the country were fearful. This case was really the People vs. the Cops. Leave it to diversity.

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Mural in Oakland, Calif. June 7, 2020 Photo Credit: Christy Price

All-white jury? There’s no more feared phrase among civil rights lawyers. But that’s not what Minnesota gave us in the Derek Chauvin trial. The jury that decided the fate of the white former police officer who had his knee on George Floyd’s neck was more  diverse than the Minnesota county where the trial was held.  And that means the odds of getting justice were probably a lot higher than anyone could have imagined. 

Right up to when the verdict was read the anxiety level was so high, people all over the country were fearful. This case was really the People vs. the Cops. Leave it to diversity.

Minnesota’s Hennepin County has 1.3 million people, according to Census data from 2019. The racial breakdown is 74.2% are white, 13.8% black, 7.5% Asian, 7%  Latino, 3.3% biracial, 1.1% Native American. How much lower would your anxiety level be with a 12-member jury that had only nine white people?  Not much.

But again, praise diversity. The Chauvin jury included six whites — two male, four female. And there were four Black people (three of whom are male, plus a 60-year-old black woman). The remaining two jurors were multiracial. But now, what’s in their heads?

The questionnaires all the potential jurors filled out asked about policing, protests and criminal justice. Among the selected was a white man in his 20s, who was the only juror who said he had not seen the cell-phone video of Chauvin with his knee on Floyd’s neck. The man, a chemist, said in his questionnaire, “I rely on facts and logic and what’s in front of me.”

To me that sounded like a guy who might want to see some evidence again. That indicated to me the potential for a long deliberation and not a quick one.

One of the Black jury members, in his 30s, said he had not seen the cell-phone video in its entirety. In his questionnaire he said he didn’t believe Chauvin “set out to murder anyone,” but noticed how three officers on the scene stood by and didn’t take action.

It seemed to reflect a balanced, open-minded jury that could deliberate on the truth.

The prosecution skillfully framed its case around the cell-phone video we have all seen, the 9:29-long video of Chauvin with a knee to the neck of Floyd. “You can believe your eyes,” said attorney Jerry Blackwell in the opening. In closing, his prosecuting partner, Steve Schleicher, said it again and added, “This wasn’t policing. This was murder.” 

In the end, the jurors did not allow themselves to be gaslit by the defense, who presented alternative facts as to how Floyd died. But jurors could see for themselves in that video:  Chauvin wasn’t demonstrating “reasonable” policing. 

The jury delivered guilty verdicts on all three complicated murder charges: second-degree unintentional murder; third-degree murder, and second-degree manslaughter. Trifecta. 

To think Chauvin wanted to plead to at least 10 years, but former U.S. Attorney General William Barr wouldn’t approve it because there was fear that 10 wouldn’t be seen as severe enough. Now Chauvin, whose bail was revoked and sent back into custody, could get up to 40 years.

A triumph for the people. And for diversity.  A system so biased toward the cops was beaten. It happens. 

Savor it peacefully and think of others who have come up empty-handed in their quest for justice. Let this be an energizing reminder, how alive justice can make us all feel.

Emil Guillermo is a journalist and commentator. See his vlog at www.amok.com  Twitter @emilamok FB @emilguillermo.media

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Bay Area

What Oakland’s Homeless Audit Says About Evictions, Policing, and Fire

Although the audit was vast in its analysis, this guide attempts to outline key points from the audit related only to evictions and hygiene services, police response and costs, and fire department response and costs.

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A tent in Oakland that serves as a home for a resident, October 2, 2019 Photo Credit: Zack Haber

On April 14, Oakland’s City Auditor Courtney Ruby released an audit of the city’s homeless encampment management interventions and activities for the fiscal years 2018-19 and 2019-2020. The 95-page report includes data and estimations about interventions, populations, costs, and availability of services related to homeless people and their communities. 

Claiming that the city “lacked an effective strategy…and did not provide sufficient policy direction or adequate funding,” Ruby also included recommendations for better addressing homeless communities. Although the audit was vast in its analysis, this guide attempts to outline key points from the audit related only to evictions and hygiene services, police response and costs, and fire department response and costs.

Evictions and hygiene services

The audit’s data on evictions and hygiene services is limited to the 2018-19 fiscal year and the first eight months of the 2019-20 fiscal year, when the city suspended most homeless evictions and cleaning interventions due to the COVID-19 pandemic in March 2020. During this timeframe, the city evicted 181 homeless communities. Of these evictions, 123, or about two-thirds of the total, were classified as “re-closures,” which the report defined as occurring “when homeless individuals return to a previously closed [homeless community].”  In the fiscal year 2018-19, about 60% of evictions were re-closures. From July 2019 through February 2020, this ratio increased, and about 77% of evictions were re-closures.

The audit reports 1,599 interventions classified as “hygiene and garbage services,” and defines such interventions as “providing portable toilets, hand-washing stations, regular garbage service, and/or traffic barriers.” For each of these services performed per homeless community, the audit counts one intervention. These interventions are lumped together and lack individual data, meaning that the audit did not report precise data on how often the city provided trash pick-up to homeless communities.

The audit reports that the city increased its hygiene and garbage interventions. From 2018-19, the city provided 797 such interventions, or about 66 per month. During the first eight months of 2019-2020, the city performed 802 such interventions, or about 100 per month. After March 2020, in response to COVID-19, the audit claims the city increased the number of homeless communities that receive hygiene interventions from 20 to 40, but the vast majority of homeless communities in Oakland still do not get hygiene and/or trash services with any regularity. The audit estimates that there are at least 140 homeless communities in Oakland but acknowledges “that this estimate may be conservative.”

Police response and costs

Data recorded in the audit shows police response to 911 calls in homeless communities was not timely. While over 99% of 911 calls were classified as “Priority 2,” which the audit claims “ideally should be responded to in 10 to 15 minutes,” data provided by OPD showed the median police response time to Priority 2 calls was two hours in 2018-19, while the mean response time was four hours. In 2019-20, response time slowed by about 50%, with the median response time being about three hours, while the mean response time was about six hours. Data OPD listed related to response time range show the department took over two days to respond to at least one 911 call in 2018-19 and over six days to respond to at least one other 911 call in 2019-20. Although OPD recorded 1,458 calls to homeless communities during the two years of the audit, the audit only analyzed 988 of these calls, claiming that “response data was incomplete” for 470 calls.

The audit records OPD using about $3.1 million in costs associated with homeless communities. But that $3.1 million does not include an accurate account of overtime pay. OPD only started recording overtime pay related to homeless communities in February 2020, just before the frequency of interventions, notably evictions, declined dramatically.

About $1.7 million, a slim majority of OPD’s recorded costs related to homeless communities, are recorded as labor costs that went to the three members of The Homeless Outreach Team. The Homeless Outreach Team consists of one sergeant and two officers who dedicate 100% of their time to homeless community work. 

    The Abandoned Auto Unit incurred over $800,000 in labor costs to provide support at moderate to large homeless community evictions. They were responsible for “traffic control and tagging and towing vehicles at [homeless communities] when necessary.”  About $600,000 went to labor costs incurred by Patrol staff responding to 911 calls.

Fire Department response and costs

The audit reports that The Oakland Fire Department responded to 988 fires in homeless communities in 2018-19 and 2019-20, which is more than one a day. The data recorded shows that the OFD response times for such fires were timely, arriving in just over seven minutes and 50 seconds to over 90% of calls. Such responses were slightly faster than responses to non-homeless community related calls, which, in 90% of cases, OFD responded to in about eight minutes and 10 seconds. OFD has recorded no injuries to firefighters fighting fires at homeless communities. One homeless resident died in 2020 as a direct result of a fire. The audit did not record fire-related injuries to homeless people or their lost possessions.

OFD-related costs accounted for an estimated $1.8 million in funds related to homeless communities in 2018-19 and 2019-2020. About $676,000 went to “fire prevention labor,” which includes labor costs associated with fire hazard inspections, investigations related to fires, and removal of hazardous waste. Over $ million went to both labor and equipment costs related to “fire suppression.” Fire suppression costs include costs related to fighting fires and rescue activities. OFD costs related to homeless communities rose over 40% from 2018-19 to 2019-20 while total fires at homeless communities increased about 17% over these years.

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