Local government leaders who lobbied to make police body camera video confidential might lack the stomach for secrecy when loose lips could land them behind bars.
In a fascinating legal twist, appellate judges last week upheld a gag order imposed on Greensboro City Council members who sought and received permission to watch police video on the condition that they keep it to themselves.
Greensboro council members petitioned Superior Court Judge Susan Bray to let them watch bodycam footage from a September 2016 incident in which a man alleged police harassment led to his and his friends’ arrests. Judge Bray approved the viewing, with conditions. City officials who watched the video could only discuss it “amongst themselves in the performance of their official duties.”
Speaking about the tape with people not authorized to see it would result in a $500 fine and up to 30 days in jail. When constituents started asking questions about the incident, the restrictions made these elected officials squirm.
Greensboro asked the N.C. Court of Appeals to overturn the gag order, arguing that it “impermissibly violates the First Amendment rights of its council members and otherwise impairs their ability to engage in open government.”
A unanimous three-judge panel rejected that argument in an Aug. 6 ruling. Council members have a right to express their opinion, but not to divulge the contents of police video. Those who watched the bodycam recordings wanted to make a wise determination about what happened between the officers and residents. But it was a devil’s bargain — the knowledge they gained came at the expense of their ability to share their informed conclusions.
“The gag order does not violate the city’s First Amendment rights because the gag order only restricts the council’s speech about matters that the council, otherwise, had no right to discover except by the grace of the legislature through a judicial order,” Judge Chris Dillon wrote in the appellate opinion. “Indeed, our General Assembly chose not to make bodycam footage a public record.”
It’s tempting to sympathize with Greensboro here. City council members want to share the facts with the people who elected them, and courts are standing in the way. But it’s tough to shed many tears considering this restriction on government is a mess of government’s own making.
Once upon a time, police dashboard camera video was public record and bodycam video was presumed public. Transparency was helping to build a bridge of trust between police and residents. Then state lawmakers invented a solution in search of a problem. In 2015, they voted to make dashcam and bodycam video exempt from the public records law and required people to petition Superior Court judges for access.
Local government — city councils, mayors and county boards of commissioners — lined up in support of needless state secrecy. Police chiefs fretted that letting the public see bodycam footage could harm active investigations, despite the absence of a single real-life example of such disclosure scuttling a prosecution. Skittish lawyers wrung their hands over liability. And your elected officials fell hook, line and sinker.
Chalk this case up as an unintended consequence. Could it be the ripple that starts a tidal wave?
It’s clearly in the public’s interest to have access to recordings of public servants performing their work on the taxpayers’ dime. When local officials realize transparency is in their interest, too, perhaps they can prevail upon Raleigh to undo the damage.