Can the public fight for police body cam footage? NC high court ruling adds clarity

North Carolina’s highest court cleared the way for the release of law enforcement footage from a 2020 march in Alamance County where authorities used arrests and pepper spray to break up a crowd of hundreds that included young children.

In a 5-2 ruling Thursday that split the North Carolina Supreme Court’s Republican bloc, the majority concluded that appellate judges were partly wrong to block the release of video from the march sought by a coalition of media organizations that included The News & Observer. The decision now goes back to a superior court judge, who in 2021 ordered both the Graham Police Department and Alamance County Sheriff’s Office to turn over the footage.

The use of pepper spray in Graham that day — the last one of early voting in the 2020 election — drew international attention and prompted allegations of voter intimidation, The N&O reported. Two lawsuits filed shortly after the incident made those claims directly.

Leaders with the police and sheriff’s offices have maintained their use of force during the march and rally was appropriate.

But in this case and countless others nationally, media organizations have sought body-worn and dashboard-camera video in an effort to reveal more about the interactions between the police and the public.

The state Supreme Court’s ruling will likely add some clarity to the process the public must follow to obtain law enforcement recordings, which for almost a decade have been subject to an uncommon carve-out in North Carolina law.

Such video is not public record, and law enforcement agencies can’t release it on their own.

But under a measure passed by the legislature in 2016, news organizations have repeatedly obtained law enforcement recordings through a special petition that sets a very specific legal procedure in motion. It leaves the question of what to release — and what to keep confidential — up to a judge.

The appeals court decision in the Alamance County case, however, cast doubts on that process in December 2022.

The Republican majority of appellate judges ruled that release of video was contingent upon certain eligibility requirements that the lower court failed to consider. If that finding stood, it would likely have limited the ability of the general public — and media organizations — to fight for the release of law enforcement footage.

But in Thursday’s decision, the state’s high court overturned that ruling, finding that state law doesn’t impose strict eligibility requirements on the public’s ability to seek body and dash cam video. The majority did agree with the appeals court, however, on the ability of a judge to place “conditions or restrictions” on what to release publicly.

Justices also rejected an argument from the Graham Police Department that those seeking law enforcement video should be required to file an expensive civil lawsuit, rather than filling out a $200 petition to the court.

“To me, the upshot is that it will be less cumbersome to pursue release of these things,” Mike Tadych, the attorney representing media organizations, said of the ruling Thursday.

Police video yields insight on conduct

The case will now return to Superior Court Judge Andrew Hanford, who can decide whether to enforce his original release order or modify it given the findings of the high court.

Tadych said he expects another hearing on the matter in about a month.

What the judge will actually release, he said, will likely be an easy call because so much of the footage was recorded in public and outdoors during the “I Am Change” march on Oct. 31, 2020.

Coming in the wake of the murder of George Floyd, the Black man killed by Minneapolis police earlier that summer, the march of about 200 people culminated in a rally near the old Alamance County courthouse in Graham.

The N&O reported that shortly after a moment of silence for Floyd, police and sheriff’s deputies told marchers to clear the road before they used pepper spray. Law enforcement began dismantling the rally’s sound system before scheduled speakers finished, and officers and deputies told the gathering to disperse, using more pepper spray on the crowd.

Children as young as 3 and 5 were caught in the cloud, The N&O reported, prompting several to vomit. More than a dozen people, including a local reporter and a church pastor who organized the event, were arrested at the scene.

The media organizations petitioned for the release of video captured by body-worn cameras and other devices operated by the Graham Police Department and the Alamance County Sheriff’s Office during the march. But while the effort to obtain the video was stalled by an appeal from Graham police, N&O journalists were able to review some of the footage in early 2021.

After reviewing video released through related court cases against protesters, The N&O reported that Graham officers joked about using the pepper fog on the crowd.

“I knew you’d spray first, I knew it,” one officer tells another. “I love it. I love it.”

In another clip, The N&O reported, an officer tells a colleague, “OK, so eight minutes from now, we’re going to start clearing these mother****ers.”

One day after the excerpts were published, The N&O reported, Graham’s police chief acknowledged officers made “unprofessional comments” and asked for grace from the community as they dealt with long hours, challenges from the pandemic and demonstrators who “attempted to incite them to react negatively.”

“Although we always strive for perfection, police officers are also people and they are not perfect. Police officers are like members of any profession and sometimes they make mistakes or fall short of expectations,” Graham Police Chief Mary K. Cole wrote.

Neither city officials nor the Graham Police Department responded to a request for comment by Thursday afternoon.