.Upfront: Eyes wide open

By Tom Gogola

The ongoing national debate over police, videotapes and transparency—and particularly body-cams and dash-cam videos—roosted in Sonoma County last month.

District Attorney Jill Ravitch attempted to restrict defense attorneys’ use of videos via a “protective order” that they would have to sign before being granted access to dash- or body-cam videos. In its initial iteration, which did not ultimately hold sway, defense attorneys would have been banned from using video from a criminal case as evidence in a civil case, and would have been compelled to return the videos to the district attorney once a case was adjudicated.

The ruling was met with stiff opposition from civil rights groups and local defense attorneys, and Ravitch ultimately backed down from the more onerous aspects of the protective-order policy and returned with a less restrictive ruling that nevertheless was viewed as an unnecessary and duplicative gesture that would handcuff lawyers’ ability to properly defend their clients. The order was scaled down to a requirement that neither defense nor prosecuting attorneys could release any videos unless they gave a 15-day notice to all parties in a legal proceeding.

Ravitch says her office was just trying to anticipate the intersection where modern policing technology collides with rights of privacy—especially when videos capture persons who are not parties to a crime. And yet defense lawyers argued that disclosure rules are already in place to deal with exactly those issues, especially in cases involving sex offenders.

Santa Rosa defense attorney Izaak Schwaiger has spent a lot of time and energy on police and corrections-guard transparency and accountability, and says that when Ravitch revealed the new policy, a fellow attorney congratulated Schwaiger for having it essentially named after him.

Schwaiger has made a mark in local accountability circles for his relentless investigation into instances of alleged misconduct by law enforcement, especially at the Sonoma lockup. Those efforts often begin when public defenders approach him about their clients with claims that they were subjected to excessive force. Recalling the controversy over the Ravitch ruling, Schwaiger notes that “it was interesting because I didn’t release a whole lot of videos.”

Once he’s contacted by the public defender, Schwaiger says, he contacts the police department, obtains the video and makes a determination about whether the officers’ treatment of the arrestee might be actionable.

His most high-profile case was a recent settlement with Sonoma County that involved a man being Tasered multiple times as officers tried to subdue him at the Main Adult Detention Facility. In-house video of that incident was recorded by Sonoma County corrections officials in order to show that the arrestee was highly intoxicated and unruly—a strategy that backfired when the county was forced to pay out $1.25 million in damages.

In recounting the debate over the Ravitch rule, Schwaiger recalls that many defense attorneys refused to sign off on it. The initial order said that attorneys granted access to the videos in a criminal proceeding could not use them to pursue civil actions against the police—and that the attorneys had to return the videos once a case had closed. That’s not typically how public records are treated. As noted, the rationale was to protect innocent people who might be filmed in those encounters, but Schwaiger scoffs at that notion. “It was specifically and problematically crafted to deter lawsuits against the police.”

The issue hasn’t been raised in Marin County, which has seen its share of questionable police activities—including the 2013 shooting of a Marin City man by a sheriff’s deputy that led to a $585,000 payout by Marin County, according to the Marin Independent Journal, on top of a $10 million lawsuit filed by the unarmed black man who was shot, Chaka Grayson. The episode was apparently not filmed. In 2014, the Marin County Civil Grand Jury issued a report that surveyed the use of dash-cams and video-cams throughout the county, and recommended that law-enforcement agencies that weren’t up to date on the technology find the money and political will to do so. “We found that many police departments in Marin County are already using some of this technology, some are not using any video, and others are keenly interested in acquiring it,” reported the grand jury. Fairfax and San Rafael did not use the cams whereas Novato and Tiburon each utilized dash-cam and body cameras (the grand jury also surveyed the use of license-plate scanners in the county).

The Marin County Sheriff’s Office does not use the devices, either, though it does deploy a couple of the license-plate readers. The grand-jury report offered a few observations in its nine-page report: “On-officer cameras have been found to reduce citizen complaints and increases officer safety, but only three law enforcement agencies in the county are using these cameras; financial constraints are the reasons most cited by the law enforcement agencies that have not purchased modern audiovisual equipment; as of this report, the Sheriff’s Department has not expressed an interest in purchasing body cameras.”

The ongoing debate over public access to police body- and dash-cam videos can be viewed through the lens that sees a national tug-of-war over whether black lives or blue lives matter more. As numerous viral-video encounters have indicated over the past year, there’s a problem with the way some officers interact with communities of color.

And in this frustratingly binary construction around policing and accountability, there’s been a reaction from police departments around the country when it comes to limiting public access to body-cam and dash-cam videos, and aggressive posturing in legislatures focused on the rights of victims or their families, but which critics say are obvious attempts to shield the police from lawsuits by any means necessary.

In that sense, efforts to restrict public access to the videos seems to have taken a page from another ongoing national debate, over the right to access a voting booth, to the extent that restrictive voter-identification laws have been dismissed by one court after another in recent weeks as chasing after a problem that does not exist, or is otherwise dealt with in existing federal law.

To bring the analogy home, the California Public Records Act already includes exceptions and rules governing disclosure, says Jim Ewert, general counsel at the California Newspaper Publishers Association, which has lobbied vigorously against two such legislative efforts in Sacramento this year.

One bill, AB 2533, sought to grant police officers the right to sue to prevent newspapers or the general public from accessing dash- or body-cam videos. That bill died, says Ewert, in large measure because of pressure from newspapers around the state that editorialized against the bill, “and those stories helped legislators understand how much of a threat this bill was to the Public Records Act, that anyone who is subject to a request—in this case it was police officers—could sue to prevent the release” of videos that would ordinarily be a part of the disclosure process in legal proceedings.

The other body-cam video bill hits at a highly sensitive issue around videos that are taken when a police officer is killed in the line of duty, SB 2611. The Officer Down Memorial Page reports that four California law enforcement officers have died in the line of duty this year. Factor in the shootings of multiple police officers in Dallas and Baton Rouge this year, and it’s not hard to see why law enforcement agencies are keen on protecting their own. Yet Ewert notes that SB 2611 is not the answer, even as it works its way through the California Legislature.

“That’s on the Senate floor,” Ewert says, “and in some respects, 2611 poses an even greater threat to the Public Records Act than [AB 2533], because it absolutely prohibits the disclosure of any body-cam [information], whether audio or video, that shows an officer being killed in the line of duty, unless the officer’s family consents to its release.”

The bill may have a well-intentioned rationale of protecting a family from watching the horror of a loved one killed on the local news, but Ewert notes that it is “problematic for several reasons. First, it flat-out dismisses any public interest there might be in that footage. And more important—and even more dangerously—it hands the grieving family of the officer the veto power of the access to public records.

“And while it’s being spun as this mom-and-apple-pie bill that protects the families of slain officers, it really has the opposite effect,” adds Ewert. “When you have incidents in communities, with the ubiquity of cameras, [the videos] are going to go absolutely viral, and the local agency will be totally unable to counter the notion that the officer was somehow at fault. Instead of protecting the family, the entire focus is going to be on that family.”

Ewert adds that the bill’s defenders—it was introduced by Silicon Valley Democrat Sen. Evan Low—have claimed that granting the veto power to the families of slain officers would “protect the families against having to see a video of their loved one over and over again. Of course, it will have the exact opposite effect.” And, as with Ravitch’s attempt to limit access to video in Sonoma County, there are already limits on what can and what can’t be released.

Ewert notes that “current law already protects the family in a manner that doesn’t shift the burden to them.” The California Public Records Act already enshrines a balancing-act methodology that would “probably favor nondisclosure most of the time.” But it also allows for the release of those videos if there is a demonstrated public interest in their release.

Ewert agrees with the general proposition that these efforts to limit disclosure can be seen as analogous to recent efforts to restrict voting rights on the spurious grounds of rampant voter fraud. “There is a broader energy at work here,” he notes. “Law enforcement agencies in California just have to control the flow of information about themselves.”

Pacific Sun
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