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Official attitudes shifting on when videos of police shootings should become public

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Video was supposed to be the hammer behind promises of better accountability in the way police use force.

Cameras in patrol cars and on officers’ vests or eyeglasses would provide a definitive record to remove doubt from oft-criticized police investigations, and restore credibility to a skeptical public.

But in some cases, failure to make the videos public is fueling additional skepticism.

The Rev. Phillip Duvall, an activist questioning the necessity for a St. Louis officer to kill Anthony Lamar Smith in 2011, can recite the answers he received in seeking video:

• “It’s part of an ongoing investigation.”

• “We don’t want to jeopardize the investigation.”

• “We want to protect the integrity of the case.”

Appearing with about two dozen clergy and activists at a news conference last week, Duvall said, “That is an articulated pretext that sounds good, but we’re seeing the release of videos across the country and they don’t seem to hamper the prosecution of those cases.”

The Smith case is particularly sensitive because former officer Jason Stockley was charged this spring, 4½ years after the shooting, with first-degree murder. Officials have blocked official release of police-held videos, although the Post-Dispatch obtained and published them last month.

Those videos reinforced another frustration: Many do not provide a clear sense of what happened. The St. Louis images do not appear to sustain nor dispute Stockley’s claim of shooting Smith in self-defense.

But the release of any details — especially videos — represents a major shift for many police agencies.

The Ferguson police shooting of Michael Brown, in 2014, was a turning point for some. Officials chose silence to protect their investigation while critics of police used social media to spread information — often false — to fire up protests. There was no video of the Brown confrontation.

Concerns remain about tainting witnesses or potential jurors. But experts and officials interviewed for this story could not point to a police shooting case that fell apart because of the early release of information.

St. Louis Circuit Attorney Jennifer Joyce said she believes that’s because police and prosecutors have done a good job in managing pretrial publicity.

But she admits the idea of silencing all information until investigations are complete is dated.

“The traditional and myopic goal is to uphold justice and play by the rules, but we’re not realizing also that the confidence of the public needs to be considered,” she said in a recent interview. “We can’t just disregard it and say I’m going to stick to my knitting.”

Who makes the call?

Though police chiefs typically work with prosecutors, they don’t work for them. Chiefs are free to disseminate information before charges are issued.

St. Louis Police Chief Sam Dotson said he plans to release video evidence in police shootings as soon as possible.

“That way, everybody sees the same information and can come to hopefully the same conclusion as to whether the officer’s actions were justified or not,” he said. “But the video is not the end-all, be-all; it only helps to paint a picture of what happened. There can still be questions.”

Joyce cringed when asked if she agreed with Dotson’s decision to release a bystander’s cellphone video of the city police shooting of a man with a knife, Kajieme Powell, 10 days after the Ferguson shooting. But she said she understands why Dotson did it.

Dotson said his mission differs from Joyce’s. “My goal is to ensure the community trusts the police department, and her role is to get a conviction. We have different roles and different jobs at different times.”

Joyce said her reluctance to release evidence can fuel a perception that prosecutors are protecting the police.

“Pre-Ferguson, I would have said, absolutely not, nothing gets released,” she said. “But what I’m wrestling with right now is the climate we’re in and the lack of understanding on the part of many activists and the public who believe that if this information isn’t out there, then you’re hiding something.”

In reality, she said, “It’s the exact opposite.” She said her goal is to prosecute police, if that’s warranted. “It’s the same goal as the activists’.”

Withholding evidence about police shootings to insulate the jury pool is an argument for defense lawyers to make, not prosecutors, said Eric Miller, a criminal procedure expert from Loyola Law School of Los Angeles who is a visiting professor at Washington University here.

“The public comes to very different opinions about what happened in a police video based on their view about the police,” Miller said. “The video doesn’t change a person’s views of police, so if you select the right jury, you’ll get the result you want, video or not. All you need is jurors who are able to follow the law, even if they have an opinion one way or another.”

In the Stockley case, a federal judge put the evidence under seal during a civil lawsuit that resulted in a $900,000 settlement for Smith’s daughter in 2013. Joyce objected to a Post-Dispatch request to lift the order, citing concerns that it could lead Stockley’s lawyers to seek a change of venue.

She told a reporter that her office had “described the pertinent parts of the video” in court documents. Release of the actual videos, she said, “doesn’t add anything to the discourse, and the potential for an unfair trial is there.”

A mixed bag

When authorities have released video evidence, public reactions have been mixed.

Within two days after an officer in Tulsa, Okla., shot Terence Crutcher on Sept. 16, police played video evidence for his family, who watched it with pastors and elected officials. The department released video, some from a police helicopter, days later. Prosecutors quickly filed a manslaughter charge against the officer.

Activists told reporters there that the release of the video helped calm tension.

Tulsa Police Chief Chuck Jordan told the online site VICE News that he had “seen what happened in other cities” that withheld video.

“I think it was important to my community, no matter how bad the footage was, that they needed to see it, see what we saw, immediately,” Jordan said. “I think no matter how disturbing it is, we’re the city’s police department and we have accountability.”

In Charlotte, N.C., police showed Keith Lamont Scott’s family members video from dashboard and body cameras after he was killed Sept. 20. Police Chief Kerr Putney vowed not to release the material publicly, telling reporters, “I promised transparency, but not full transparency.”

After several nights of violent protests, his department did release two videos of the shooting. But those did not answer the question of whether Scott was armed as police claimed, and the protests continued.

Law enforcement must guard against the notion of, “If you don’t show it, we will riot,” said David Klinger a University of Missouri-St. Louis criminologist and former California police officer. He has studied hundreds of police shootings across the country. Videos, even from body cameras, he said, don’t necessarily show the officer’s true perspective and therefore won’t always tell the whole story.

“We must not bend to the mob,” Klinger said. “Where does it end for the community’s demands for transparency? Transparency doesn’t necessarily mean, ‘Transparency now!’”

He added, “The people who are demanding legal accountability if an officer did something wrong should be most concerned with the integrity of the investigation.”

Still, Klinger opposes a complete shutdown of information following a police shooting, pointing to Ferguson as an example.

St. Louis County Police Chief Jon Belmar, whose department conducted that investigation, held one press conference about the shooting a day later but did not counter claims that Brown died while surrendering. Belmar did not respond to a request for comment for this story.

Klinger said authorities concerned with releasing specifics had options other than silence.

“They knew within the first week that the evidence was not consistent with the narrative of, ‘He had his hands up, don’t shoot,’” Klinger said. “I would have had no problem with the release of a statement to say the physical evidence contradicts the claim that he had his hands up.”

St. Louis County Prosecuting Attorney Robert McCulloch isn’t so sure.

There wasn’t anything anyone could have said that would have prevented the riots we had here,” McCulloch said in an interview Friday. “I thought it was more important to protect the integrity of the grand jury investigation.”

When a St. Louis County grand jury decided not to indict the officer, 106 days after Brown was killed, McCulloch released most of the evidence. A Justice Department report released the following year reached a similar conclusion.

McCulloch has shown a willingness to bend.

He said he believes ethical rules for prosecutors need to “catch up with technology.”

There was video evidence available after a police officer shot an 18-year-old man at a gas station in Berkeley in December 2014. Violence erupted and protests ensued but were quelled by release the next day of video from a surveillance camera.

“It’s proper to release when there is bad information out there and you can correct it,” McCulloch said, adding that a grand jury investigation did not occur in that case. “It did calm things down and also laid it out: Here’s what happened.”

The topic has been front and center for the national Association of Prosecuting Attorneys. The group is working with prosecutors in the 35 largest cities to examine advantages and disadvantages of releasing information about police shootings. Its members prosecute a third of the country’s crimes, and hope to have a use of force report completed in January, said its president and CEO, David LaBahn.

He said, “There is no way to come out with a national model that says, ‘Here is the best practice. Everyone follow this and there’s not going to be violence, there will be trust and the family of the decedent will be happy and the department will feel like it’s been properly investigated.’”

Instead, LaBahn said, “We want to look at, ‘How can you establish that trust so when difficult things happen, there are different models that folks can chose to use?’”

Respect the process

Release of video is, in some places, subject to restrictions in law.

In Florida, for example, if police show family members evidence or video, it must become public, LaBahn said.

In Oklahoma, police body camera video can be released. There are exceptions if it depicts a death, unless the death was caused by a police officer.

Effective Oct. 1, North Carolina police are allowed to release videos only with a judge’s permission.

In July, Missouri Gov. Jay Nixon approved a new law barring public access to body camera and vehicle camera video during ongoing investigations.

In Illinois, a legislative effort that would require a judge to rule on whether video evidence is released has stalled.

Kim Gardner, the Democratic nominee to run for St. Louis circuit attorney in November, noted that San Diego County, Calif., releases some, but not all, evidence to give the public a sense of what happened.

In August, officials there announced what they called the nation’s first countywide policy on the release of video recordings of police shootings, promising to make them public after the district attorney’s office completes its investigation, according to the Los Angeles Times.

The controversial killing Tuesday of Alfred Olango, 38, by El Cajon, Calif., police, put that policy to the test. Police released a still image from a bystander’s cellphone within hours, but protesters demanded the video in its entirety and not just the “police spin,” according to the Times.

Gardner said earning the community’s trust ahead of time is important.

“It’s not a black-and-white answer,” she said. “You have to pursue justice even for the defendant, and if that means we can’t do something, let’s talk about why we can’t. Let’s have some dialogue.”

She added, “It’s not going to always be pretty, but at the end of the day, we must respect the process.”

But the process in El Cajon has already changed. After violent protests, police released cellphone and surveillance footage of the shooting on Friday.

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