High Court denies review of appellate ruling, limits law enforcement options regarding body-camera footage
By Jordan Ferguson, Best Best & Krieger.
The California Supreme Court recently denied considering an appellate court ruling from a case in Eureka that police arrest videos cannot be considered confidential officer personnel records and therefore kept from public view simply because it is considered part of a complaint against a law enforcement officer.
The ruling effectively narrows the options law enforcement agencies have to keep video taken in the field from public disclosure. It comes as police departments nationwide deploy body-worn cameras to increase transparency and officer accountability, while government entities, law enforcement agencies, courts and legislatures grapple with complex privacy concerns and open record laws affecting public access to recordings.
Weighing privacy against transparency
Events across the nation have proven that footage from police cameras — be they body or dashboard — can provide critical information on how situations unfolded, particularly officer-use-of-force incidents.
But while the technology’s use is on the rise, recordings have not been readily available to the public.
Gaining access is often on a case-by-case basis, without clear policies or legal requirements. The issue is further compounded by an agency’s need to strike a balance between transparency — meaning public access — and the privacy of law enforcement officers, suspects, witnesses and victims.
California lawmakers failed to pass measures in 2016 to both increase transparency and restrict access.
Even though no legislative traction was made this year, California is among at least 20 states and the District of Columbia to have laws regarding public accessibility to body-camera footage, according to the Reporters Committee for Freedom of the Press, which tracks such laws countrywide.
Last year, the state Senate approved legislation aimed at unifying local agency efforts to adopt effective camera procedures and data controls. With the use of the technology and storage of its information still new, disclosure between cities, jurisdictions and cases can vary widely. Access to BWC recordings under the state’s Public Records Act also remains disputed between those seeking open access and those who seek to place the decision to release recordings in the hands of law enforcement.
The lack of direction from lawmakers means the access question has largely fallen to local agencies and the courts.
Law enforcement departments throughout the State equip officers with body cameras, but have generally restricted public access to footage outside the courtroom and police review panels. Police departments in San Diego and Fresno counties broke rank with other agencies this year by releasing body-camera footage showing graphic, deadly police-public encounters amid intense community pressure and criticism.
These releases, however, have remained on an individual basis. Courts, too, are now being called to weigh in on the public’s access to police video and audio recordings.
Preventing use of the personnel record defense
The state Supreme Court’s recent refusal to review the appellate court ruling in the Eureka case means the previous ruling — that footage from body-worn cameras do not fall into confidential personnel files simply because the recording was considered in an officer misconduct investigation — stands as binding precedent in California’s First Appellate District, where the case was decided, and that the decision can be cited as precedent throughout the State moving forward.
The appellate court expressed no opinion on whether the arrest video would be considered a public record under the PRA, leaving that an open question for now.
The decision stems from a more than two-year legal battle between the City of Eureka and North Coast Journal news editor Thadeus Greenson over public access to a police arrest video. The video captured on a patrol car’s dashboard camera shows the arrest of a 14-year-old suspect — an encounter that led to criminal excessive force allegations against a Eureka Police Department officer.
In its ruling, the appellate court concluded the video of an arrest captured by a patrol car’s dashboard camera is not a confidential police “personnel” record, and thus is not protected by Pitchess statutes, which set the state standard to make such records are confidential and protected from indiscriminate disclosure. As that was the City’s only basis for withholding the video, the court ordered a portion of the arrest video in question be released to Greenson.
In December 2012, a Eureka police officer chased the 14-year-old, who, according to court documents, “was pushed to the ground, fell to the ground, or just gave up and laid on the ground.” Another officer arrived shortly thereafter with their patrol car’s video equipment activated.
Following the incident, a citizen filed a complaint regarding the officers’ “handling of the minor” and the police department conducted an internal investigation. The first officer on scene was later charged with misdemeanor assault by a police officer without lawful necessity. The video was reviewed by experts for the prosecution and defense who determined force was not used. The charges were dropped.
Greenson wrote articles in local newspapers about the arrest and litigation before filing a California PRA request with the City of Eureka in August 2014. The request was denied. In turning down the request, the City cited discretionary exemptions for personnel records and investigative files.
The editor then filed a request for disclosure, pursuant to Welfare and Institutions Code section 827 allowing release of confidential juvenile records under limited circumstances. The Humboldt County Probation Department objected stating Greenson had already obtained records containing descriptions of the captured events. The City also urged the court to deny the request.
In early 2015, the minor waived his right of confidentiality and consented to the video’s disclosure. The City and County continued to resist its release. The City argued that, because the police department had conducted an internal investigation, the video was part of the investigation and could not be released without a Pitchess motion.
The court concluded video footage of an arrest is not information traditionally considered subject to a Pitchess motion, but rather information that could lead to a criminal complaint against an officer.
Since such videos do not relate to an officer’s “advancement, appraisal, or discipline,” they cannot be considered a personnel record for purposes of Pitchess statutes, the court determined. The court held only records generated in connection with appraisal or discipline are protected from disclosure, not records that may eventually result in appraisal or discipline.
Given the ruling, law enforcement agencies can no longer claim body-worn and dash-cam videos as part of a confidential personnel record simply because the recording is considered in that personnel inquiry. However, these videos may still be exempt from disclosure under the PRA and other provisions of California law.
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Jordan E. A. Ferguson provides legal services to cities, special districts and private clients across Southern California. An associate in Best Best & Kreiger’s Los Angeles office in the Municipal Law and Special Districts practice groups, Ferguson’s practice involves city attorney and general counsel services on privacy rights, emerging technologies, free speech regulations, privacy rights, the Brown Act and public safety regulations. He can be reached at jordan.ferguson@bbklaw.com.