I had the unusual experience this week of arguing two cases before the Ohio Supreme Court back to back. The cases involved the public record status of police camera. The first case involved an Ohio Highway Patrol dash board camera that captured the pursuit and apprehension of a motorist who was ultimately charged with a number of offenses ranging from a missing license plate to possessing an illegal firearm.
The second case involved a missing license plate as well. In that case, a University of Cincinnati Police Officer, wearing a body camera, pulled a driver over because the car was missing a license plate. That encounter escalated and the police officer shot and killed the driver.
The issue before the court was whether the footage in both cases could be classified as a “Confidential Law Enforcement Investigatory Record.” If so, the police and prosecutors would have no obligation to provide a copy of the footage to the public or the press.
In a 2001 case called State ex rel Beacon Journal v. Maurer, the Ohio Supreme Court decided that an initial incident report detailing the initial interaction between the police and public related to some occurrence is not an investigatory record. The Court ordered the report – which contained detailed written narratives provided by four different police officers -- produced upon request, without redaction.
Another way of phrasing the question before the court was whether the Maurer decision would apply to the footage in the two cases. To the extent the reports set forth the events from that interaction, they are no different from the footage. One reflects the observations of police on the scene; the other reflects the observations captured by a camera.
But to the extent the question is phrased in that fashion, a related question is: what is the meaning of Maurer? And why did the court find that the record of the initial interaction between the police and the public be available for immediate and unedited public consumption?
The answer is that the manner in which the police conduct the initial interaction with the public speaks volumes about the police’s relationship with the citizenry and dictates the level of respect citizens will have for the police. Are police courteous and professional in their dealings with the public or dismissive and confrontational? Do police mete out equal treatment in those encounters? Are certain citizens afforded better treatment? Do police use excessive force or take unnecessary risks in their interactions with the public? Footage of those interactions will answer all of those questions.
And those initial interactions – even the ones at issue in the cases before the court – are not inherently criminal investigations. A car proceeding down the street with a missing license plate could be doing so for any number of reasons – but that fact alone does not make the driver a criminal. And so the initial stop – which occurs to initially determine the existing facts – did the plate fall off in route; is it in the car; is there some honest mistake – does not constitute a criminal investigation.
If in the course of the initial interaction the facts suggest a further investigation is needed, then those subsequent steps may fall under CLEIR, but the initial interaction and any record of it does not.
That makes perfect sense. Because if the entire interaction is “investigatory” the footage may never see the light of day. And it doesn’t take an extraordinary imagination to think of the potential mischief that could result from this scenario. Imagine an Ohio town that is less than friendly to outsiders, especially outsiders with dark skin. Now imagine the police in that town routinely pull drivers of color over and hassle them. The message is clear: “you’re not welcome here.” Of course, if the police prepare incident reports of these interactions, there would be no mention of hassling, and no indication of the driver’s race. All we’d see is a sanitized account in scrubbed language. But if the police in those encounters were wearing body cameras, we’d see what the drivers looked like. We’d hear the officer’s tone. We’d observe body language. And as a result, a much more accurate picture would emerge.
But that accurate picture wouldn’t necessarily emerge if the footage were deemed “investigatory.” The police could hold it as long as they felt like it. In the example I mentioned above, the driver would be an “uncharged suspect” and that would allow the footage (and all the footage like it) to be withheld forever. Which begs the question, how would the press and the public discover and expose the wrongdoing?
And the concern is hardly hypothetical. We saw last year in Chicago the extreme lengths to which the city and its mayor went to withhold the footage of the Laquan McDonald shooting. The footage conveniently remained under wraps until after the mayoral election. Few people consider that a coincidence. And it illustrates how the “investigatory record” exception can be misused to hide truth.
When I argued the cases this week, a camera recorded the argument and live streamed it to the World Wide Web. That footage is available in the Ohio Supreme Court’s Web site for anyone to see. And I have no problem with that. I am proud of the work I do and happy to represent my clients to the best of my ability. The world is welcome to watch. And I suspect 99.9% of police – the ones who do their job professionally and courteously – feel the same way about video capturing their performance. The rank and file police – who are unburdened by political ambition – aren’t the ones working to shut out the public. That effort comes from a higher pay grade.
Disclosure leads to closure. Non-disclosure leads to chaos. In the cities where riots followed police involved deaths – Ferguson and Baltimore – there was no video of the precipitating incident. In the cities where police involved deaths did not lead to riots – Cleveland, New York and North Charleston, South Carolina – the public was able to see the video of the event. Neither of those examples is a coincidence.
The Ohio Supreme Court got it right in 2001 with the Maurer decision. The Court has a chance now to reiterate the point – the record of the initial interaction between the police and the public is not an investigation. And that includes the video record.