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Blocked release of bodycam video in Brown case highlights North Carolina law

Bystander video, which courts have little control over due to First Amendment protections, has had the power to expose police misconduct in the past.
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A court ruling Wednesday to block the public release of body camera video in the death of a 42-year-old Black man in Elizabeth City, North Carolina, highlighted the role such video can play in cases where civilians are killed in police encounters.

Sheriff's deputies last week opened fire while serving a warrant on Andrew Brown Jr. in a shooting that was captured on four officer-worn body cameras. Superior Court Judge Jeff Foster on Wednesday in rejecting the video's release cited confidentiality concerns and a commitment “to protect either an active internal or criminal investigation or a potential internal or criminal investigation.”

Brown’s family will be allowed to view video privately, but will not receive a copy of any recordings. The family said Pasquotank County Sheriff's deputies on Monday showed them 20 seconds of the deadly confrontation. On Wednesday, numerous media outlets were also denied their requests to view and retain copies of any body and dash camera video in the case.

The judge also said he'd revisit the issue in 30 to 45 days once investigations of the incident are completed.

Attention has been turned to North Carolina’s law on law enforcement recordings, which has different carve-outs for disclosure and release of the recordings depending on whether someone is involved in the case, such as Brown’s family, or a member of the public. It also allows authorities to reject requests to view or release footage owned by law enforcement.

But many open record laws across the country have exemptions for active investigations, often used by law enforcement to delay the release of video evidence, according to NBC News legal analyst Danny Cevallos.

“In North Carolina, they're even more specific because they care about who you are making the request, which is why today you saw a different outcome for the media as opposed to the family,” Cevallos said. “A judge often has a lot of discretion in this area anyway, but when it comes to ... body cameras, it's not unusual for there to be special rules for body cameras or for them to be not presumptively releasable.”

Public release of video creates “pressure points” for law enforcement because it can create public outrage long before a charge is filed or a jury is selected. But there is little a court can do to prevent public interest, and rarely has that become a problem in prosecution, Cevallos said.

“The Supreme Court has said that pre-trial publicity can be so great that it creates a circus atmosphere, and it will threaten the right to a fair trial,” Cevallos said. “But those are so few and far between, they could be said to have never happened at all.”

Image: Demonstrators, led by clergy, march on April 28, 2021 from Mt. Lebanon AME Zion Church in Elizabeth City to the site where Andrew Brown Jr. was shot and killed by Pasquotank County Sheriff deputies.
Demonstrators, led by clergy, march on April 28, 2021 from Mt. Lebanon AME Zion Church in Elizabeth City to the site where Andrew Brown Jr. was shot and killed by Pasquotank County Sheriff deputies.Travis Long / The News and Observer via AP

The court has the duty to balance multiple factors in deciding whether to release video, but seeing the circumstances around the death of a citizen in broad daylight by police is a compelling reason that is hard to argue with, Chapel Hill-based civil rights attorney Brad Bannon told NBC News.

“It seems like this is a classic scenario where the power of the state has been brought down on a person, the most power the state can bring down on a person, which is to take their life without due process,” Bannon said. “There is video of that happening. It just seems like the public should know as soon as possible what that video depicts.”

Local officials have made conflicting statements about their desire to release the video and when. Pasquotank County Sheriff Tommy Wooten has repeatedly stated a desire to give the video to Brown’s family immediately, but District Attorney Andrew Womble fought to delay the release.

It’s understandable why prosecutors would want to maintain control over evidence, Bannon said, but in his experience, the release of a video alone is unlikely to impede an investigation.

Bystander video, which police and courts have little control over because of First Amendment protections, has had the power to expose police narratives in the past.

In the 1991 arrest of Rodney King, a case now synonymous with police brutality, Los Angeles officers claimed they were acting in self-defense. But video taken by a bystander showed a brutal beating of King, who was on the ground subjected to a stun gun and the batons of multiple officers. Officers in his case were acquitted in a criminal trial but convicted of violating King’s civil rights in a federal case in 1993.

Last year, Minneapolis police initially characterized the death of George Floyd as a medical event until cellphone video recorded by a teenage girl showed former officer Derek Chauvin kneeling on Floyd for nine and a half minutes. Chauvin was convicted of Floyd’s murder last week, and video from multiple sources and angles were a key piece of the prosecution’s evidence.

Brown was not killed in “any kind of protected space, where anybody had an expectation of privacy,” Bannon said. “And if regular citizens had been in that public space, with their iPhones running filming this whole thing, we would have already seen it. But because this video was taken in public, by the police, we can't see it until later on.”

The judge's decision has been criticized by Brown’s legal team, activists and civil rights organizations. Civil rights attorney Ben Crump, who is on the team that represents Brown’s family, called the decision deeply disappointing and vowed to keep pressure on the authorities.

“In this modern civil rights crisis where we see Black people killed by the police everywhere we look, video evidence is the key to discerning the truth and getting well-deserved justice for victims of senseless murders,” Crump said in a statement Wednesday.

Brown’s death was compared to the deaths of Emmett Till and George Floyd in a statement by NAACP National President Derrick Johnson, who urged the release of body camera evidence.

"Killings at the hands of police should never be hidden or banned from the public,” Johnson said. "America deserves to know what happened to Andrew Brown, Jr. There is no accountability without transparency."