This article was originally published on The Huffington Post by Andy Campbell on March 11, 2017.
A police department in Wilmington, North Carolina, is backtracking after one of its officers was captured on video telling a citizen ― falsely ― that he couldn’t record their interaction.
It’s a sobering incident that raises broader questions about how much privacy a police officer can expect amid the delicate balancing act of transparency, officer safety and investigation integrity.
On Feb. 26, that balance was thrown off when Wilmington Police Sgt. Kenneth Becker told citizen Jesse Bright that a new state law prohibited him from recording police. Such a law doesn’t exist, and Bright questioned the officer about which law he was referring to. Bright expected he would know if one existed; he’s an attorney.
Bright, who was working his side job as an Uber driver at the time, told the officer that he was “scared” and wanted to keep “recording in case anything happens.”
Eventually, officers searched his car after telling him that their K-9 unit detected drugs, but they found nothing, Bright told news station WECT. They let him go, and Wilmington Police Chief Ralph Evangelous released a statement Wednesday saying that an investigation had been launched and acknowledging that citizens have a right to shoot video of officers:
Taking photographs and videos of people that are in plain sight including the police is your legal right. As a matter of fact we invite citizens to do so when they believe it is necessary. We believe that public videos help to protect the police as well as our citizens and provide critical information during police and citizen interaction.
If Bright’s footage hadn’t been released, we would never have seen that the officer either lied about his rights or propagated a gross misunderstanding of the law.
“It’s extremely disturbing that a police officer would give false information like that and try to prohibit a person from exercising their right to film police,” Mike Meno, spokesman for the American Civil Liberties Union of North Carolina, told The Huffington Post. “This is an incident where the driver happened to be an attorney. He knew the law. What would have happened if someone who didn’t know the law was being told this falsehood?”
It’s hard to say. Meno told HuffPost that his office has heard this kind of story “with some regularity,” but this is the first time they’ve had access to tangible evidence of such an interaction.
It’s also unclear which law Becker was interpreting, if any.
House Bill 972, which took effect in October, makes footage from dashboard and police-worn body cameras effectively private in North Carolina, barring almost anyone who isn’t featured in the video from viewing it without a court order. It also allows law enforcement agencies to withhold video if it would “harm the reputation or jeopardize the safety of a person.”
Certainly, the bill doesn’t apply to Bright’s case because it doesn’t involve police footage, and we don’t know whether the officer was trying to repurpose that law to fit his narrative. But that incident and H.B. 972 exemplify why states are having such a hard time nailing down any law pertaining to police interaction and video, as they try to keep both officers and the public happy.
At the end of the day, officers don’t want to be demonized without due process over a recording that may not present the whole picture; the public, meanwhile, has seen far too many videos that contradict police statements, so for them transparency and the speedy release of evidence are paramount.
Exempting video from public record “poses a perception issue about accountability,” Tod Burke, a professor of criminal justice at Radford University and a former Maryland police officer, told HuffPost.
“In a day and age where citizens are requesting additional transparency from police, it seems to go counter to that request,” he said. “However, there’s also an officer safety issue that’s involved. You don’t want the recording of an incident to jeopardize the officer’s safety, their family’s safety or their investigative ability.”
Many of the laws created thus far have leaned heavily in favor of officer privacy. Several jurisdictions have passed legislation requiring officers to wear body cameras, only to exempt that footage from open records laws. North Carolina’s law has been criticized for following suit and effectively barring public access. Meanwhile, a bill that had some movement in the Virginia General Assembly would have made releasing the name of an officer involved in a police-shooting investigation a misdemeanor ― though it was withdrawn last month by its sponsor.
Critics are wary of any legislation that blocks access to public documents. But those laws are often grounded in legitimate concerns for officers, Burke said. He noted that officers sometimes face threats of violence and property damage after a video is released, before and regardless of whether any wrongdoing is established.
The laws are a mess. But the silver lining, as Burke and ACLU officials note and as has been said before, is that there’s a national discourse in the first place and real attempts to make legislation that works for everyone.
“There are always going to be unanswered issues, and nothing should be cut in cement,” Burke said. “But we need to have something in place, and we need to revisit it … we hold ― and should hold ― police officers to a higher standard, but they’re in the job to enforce the laws, not to be abused.”
Just to reiterate: You can record your interactions with police. While there are no uniform federal rules on recording police specifically and federal appeals courts in some areas of the country haven’t ruled on the matter, you do have the right to film in a public space. In general, that includes filming police, unless you’re actively hindering an investigation.