Police in Madison denied requests for body camera footage of officers shooting and killing Dana Fletcher, a man taking photos at a gym two years ago. In Huntsville, Crystal Ragland’s family is still calling for the release of videos showing police shoot and kill the Army veteran in 2019.
In Montgomery, the city is still fighting to keep the public from seeing video of Joseph Pettaway, a man killed by a police dog three years ago.
Even before the state Supreme Court ruled last week that bodycams, dashboard camera videos and other police records don’t have to be released to the public, Alabamians seldom got to see the footage.
In rare instances, police and prosecutors released videos of officers using force after family outcry or public protests. But in most cases police have denied requests, citing an exemption to the Alabama Open Records Act that protects records related to investigations.
That’s what happened when Lagniappe, a weekly newspaper in Mobile, requested bodycams and other records from Baldwin County Sheriff Huey “Hoss” Mack’s office after a deputy shot and killed a man in 2017.
The Alabama Supreme Court last week confirmed that police can keep denying such requests, no matter the public controversy. The court, in an 8-1 decision in a lawsuit Lagniappe filed against the sheriff, ruled on Friday that videos, recordings of 911 calls, photos, autopsy records, emails and texts are related investigative materials.
That simply “settled” the debate about whether those materials are public records, said J. Evans Bailey, an attorney for the Alabama Press Association, in an interview with AL.com.
“Before this decision, because it was unsettled, you could at least negotiate with law enforcement to get a portion of an investigative file,” Bailey said. “Now that it’s out there, the public interest side had lost all but a sliver of negotiating power.”
Sheriff Mack and other police officials around the state praised the ruling, calling it an important move to protect ongoing investigations.
“We believe that we were right all along in this,” Mack said in an interview this week. “I think there is information that should be released to the public. But we also have to find balance with protecting investigations.
Not worth it
Bailey worries the ruling will discourage news outlets from fighting for police records, he said, as lawsuits are costly and the chances of winning are slim to none in light of the ruling.
“There’s no way it’s worth it anymore,” Bailey said.
He added: “When things are hidden from the public’s view, it becomes harder to keep the government accountable.”
Police still have the choice to release a video or recording if they want. But in Alabama that tends to involve cases in which the video might help clear officers in the public view.
After clearing an officer of criminal charges in the 2018 fatal shooting of E.J. Bradford at the Riverchase Galleria mall in Hoover, a case that led to repeated protests through city streets, the Alabama Attorney General’s Office released surveillance footage of the Thanksgiving night scene.
Earlier this year, the Birmingham Police Department released video showing an officer shoot and kill Desmon Ray, a man who fired shots during an Easter Sunday police chase.
In the Fletcher case in Madison, prosecutors showed news reporters still images taken from bodycam videos on the day they announced the officers who fired the fatal shots were “entirely justified.”
In Decatur, after surveillance video showing an officer punch a liquor store owner in the face circulated on social media last year, police called a press conference and showed news reporters an edited clip of bodycam footage.https://www.youtube.com/embed/ZhpQy71c7dM?feature=oembed
Unless the Supreme Court grants a rehearing and reverses its own decision, Bailey said, the only way to make police records more accessible to the public is for the Alabama legislature to amend the Open Records Act.
Bills to strengthen the law have failed in the legislature in recent years, and Bailey said he’s dubious that lawmakers will pass reforms.
“But I’m always hopeful,” he said. “I think it depends on whether the public gets up in arms about it. Issues like this come up from time to time and there’s some interest but then people seem to forget about it.”
Judges step in
On the rare occasion in recent years that the public in Alabama has seen bodycam footage showing officers in an unfavorable light, it’s often been released through court cases, not by police departments.
The public last month saw bodycam footage showing a Huntsville police officer shoot and kill a man threatening suicide three years earlier.
But it took an order from a judge, over a last-ditch protest from the city, for the public finally to see a shooting that had divided public officials for years and even prompted the city council to spend taxpayer money on the officer’s criminal defense without watching the video.
In the end, a Madison County judge released the footage in response to a request from AL.com after a jury watched the videos and convicted the officer, William Ben Darby, of murder for killing Jeff Parker.https://www.youtube.com/embed/ysfIvaB81UA?feature=oembed
Three years ago, a judge in Mobile County ordered the city police force to release bodycam videos showing officers pepper spray students celebrating after a football win. Local TV station Fox 10 sued for release of the videos after the Mobile Police Department refused to make them public.
In his order releasing the videos, Circuit Judge Rick Stout said he was doing so because there was not an ongoing criminal investigation. He also wrote that the decision was not establishing a precedent for releasing bodycams.
When AL.com last year published bodycam footage showing a Huntsville police dog biting two officers and a man suspected of car theft, a police department spokesman threatened to sue AL.com.https://www.youtube.com/embed/UxENSKGLhIU?feature=oembed
Huntsville police did not release the videos. AL.com obtained copies of the footage from an attorney representing the man in a federal lawsuit against the city.
That’s how the full video in this recent state Supreme Court case also came to light, as a federal lawsuit over the deadly shooting in Baldwin County worked its way through the courts.
‘Closed Records Act’
After a Baldwin County deputy shot and killed a man whose car crashed along Interstate 10 in 2017, Sheriff Mack spoke at a press conference to discuss the case. In announcing that the shooting was justified, local authorities showed news reporters portions of video from the scene.
When Lagniappe, a weekly newspaper based in Mobile, asked for copies of all the videos and other records of the investigation, the sheriff’s office denied the request.
In 2019, Lagniappe pursued its only other recourse: it filed an Open Records Act lawsuit and fought the case all the way up to Alabama’s high court. The court last week ruled against the newspaper.
Tom Parker, the chief justice of the Alabama Supreme Court, was the lone dissent. He wrote that the ruling “shrinks the right of the people of Alabama to the vanishing point.
“After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act,” Parker wrote.
David McDonald, an attorney who represented Lagniappe in the lawsuit, called the ruling “dangerous.”
“Public records acts are put in place so public officials can be held accountable,” McDonald told AL.com. “We know the best way to keep and maintain the best public officials is to make sure they know they’re going to be held accountable.”
Good for law enforcement
Montgomery County Sheriff Derrick Cunningham, the president of the Alabama Sheriff’s Association, told AL.com the ruling is a “good thing for law enforcement” because it helps protect investigations.
While Cunningham also spoke of a need for public accountability and transparency in investigations involving allegations of government wrongdoing, he said releasing videos and other evidence without proper context can paint an incomplete picture.
“Anytime you’re looking at a public corruption case, or a case where a police officer went off the deep end, we should absolutely be transparent,” he said. “I would rather the public hear about it from Derrick Cunningham than hear about it on the street and get lopsided information.”“I think there is information that should be released to the public. But we also have to find balance with protecting investigations.”Baldwin County Sheriff Huey “Hoss” Mack
Patrick Mardis, the director of public safety at the Tuskegee University police department and the outgoing president of the Alabama Association of Chiefs of Police, said he is “totally in agreement” with the Supreme Court ruling. He said in an interview this week that once an investigation is completed the public should be informed of the outcome but evidence like videos and witness statements should remain confidential.
Bailey, the press association attorney, said that the Supreme Court’s ruling leaves the door open for releasing videos and other evidence once a case is finished. “The court stopped short of saying yes or no,” he said.
Some departments share more than others. In Florence, the department has released multiple videos under Chief Ron Tyler.
Tyler said he takes into consideration how graphic a video is and the level of public scrutiny a situation is under in deciding whether to release or show footage to someone who files a complain, to family members of someone who is injured or killed, or to the general public.
“Sometimes video provides the necessary perspective,” he said in an email to AL.com. “There are other times that we should release video when we are not at our best and we should be prepared to take it on the chin. When that happens, I’ll take responsibility, own it, and fix it.”
Tyler said that in his experience almost all videos show officers doing their jobs appropriately.
“I realize we are under the microscope in law enforcement,” he said. “Due to the behavior of a few, maybe rightfully so. But that should never overshadow the scores of officers who do the right thing, the right way, day in and day out.”
‘A chilling effect’
While its lawsuit wound through the state court system, and long before the Alabama Supreme Court’s Friday ruling, Lagniappe ended up getting copies of the videos and other evidence in the Baldwin County case.
Those materials were admitted into evidence and made public in a lawsuit filed by the family of Jonathan Victor, the man who was shot and killed on May 12, 2017 by Cpl. Matt Hunady, the sheriff’s deputy.
Rob Holbert, co-publisher of Lagniappe, said while the newspaper was fortunate to be able to publish the materials because of the federal lawsuit, “the public can’t count on that happening often.”
Attorney Griffin Sikes, of Montgomery, agreed.
Sikes represents the family of Joseph Pettaway, a man killed by a city police dog bite in 2018. It took two years for the family to get copies of footage from the scene, and the city is still fighting to keep the public from seeing the video.
Sikes said lawyers for police around the state often insist that bodycams be classified as confidential under protective orders in civil rights lawsuits. Then it’s up to the person suing to convince a judge that the video should not remain secret.
“Particularly in cases of police misconduct or excessive force, the interested party here is not just the plaintiff — it is the public,” Sikes said. “It is the public’s interest in seeing and understanding and knowing what the actions of its police force are.”
Kira Fonteneau, a Birmingham attorney who handles civil rights cases, told AL.com that the state Supreme Court ruling could make it more difficult for people to sue when police violate their civil rights. If those people can’t access evidence, like bodycams, through public records requests, they might not be able to build a case, she said.
“They may be shutting the courthouse doors for a wide range of people who have been wronged by the police,” Fonteneau said. “It’s already been difficult for us to get records, we already get pushback from law enforcement, and this basically just tells them they don’t have to.
“It will have a chilling effect on getting bad cops off the street,” she added. “People who have been seriously harmed may never see justice.”
‘A world of hurt’
Holbert said the evidence in the Baldwin County case “indeed revealed the troubling set of circumstances that ultimately led to Mr. Victor’s death.”
The video shows Victor ignore commands to stop and continue to approach Hunady and several other deputies while in a shooting stance. Victor didn’t have a gun. But he had a pair of scissors and police said his wrists were bleeding.
A federal judge, in declining to dismiss the lawsuit and denying qualified immunity, wrote that the deputy used deadly force “in a situation that posed no imminent threat.”
The Baldwin County Major Crimes Unit investigated the shooting, and a grand jury declined to indict Hunady.“It is the public’s interest in seeing and understanding and knowing what the actions of its police force are.”Civil rights attorney Griffin Sikes
Holbert said the differing narratives between the federal lawsuit and the sheriff’s press conference with other law enforcement officials four years ago illustrate why public access to videos and other records are so important for accountability.
“… law enforcement can pick and choose clips of ‘investigative materials’ to skew public opinion of an incident, then hide behind this wrongheaded opinion to avoid public scrutiny,” Holbert said in a statement to AL.com.
“This ruling leaves it up to the police to police the police,” he said. “If this is Alabama’s definition of open records, we’re in a world of hurt.”