How a little-known, Uber-driving freelancer brought the lawsuit that forced Chicago to release a police shooting video

Journalist Brandon Smith, left, and activist William Calloway talk to reporters Thursday, Nov. 19, 2015, after a Cook County judge ordered the Chicago Police Department to release a video of an officer fatally shooting 17-year-old Laquan McDonald. (AP Photo/Charles Rex Arbogast)

It was the moment Brandon Smith and legions of media had been waiting for: the city of Chicago’s release of a damning video that showed a white police officer shooting a black teen 16 times as the young man walked away.

By any account, Smith, a 29-year-old, little-known independent journalist, deserved a front row seat to the city’s hastily called press conference Tuesday. In a place where police shootings are frequent and discipline for officers rare, activists and others had seized on the release of dashcam video showing the October 2014 fatal shooting of Laquan McDonald, 17, as a potential watershed moment. It was Smith—who left journalism school to pursue the real thing and scrapes by with part-time marketing and restaurant jobs and work as an Uber and Lyft driver to feed his investigation addiction—who had successfully sued the city to set in motion the day’s unprecedented events.

In the days since a court ordered the video released, anticipation had built to a fever pitch. Hours earlier, Jason Van Dyke, the officer who fired on McDonald, had been indicted on first-degree murder charges. But now, as reporters crowded inside police headquarters to hear Mayor Rahm Emanuel and city leadership answer for the video, Smith was left out in the cold: He didn’t have a press credential. 

“Waiting outside as the rest of Chicago establishment media get first access to the video I helped pry loose,” he wrote on Twitter, where he also suggested questions that journalists inside the room might ask the mayor. (It was “unclear,” Smith told CJR in a text message, whether city officials were trying to retaliate by barring him. A police spokesman did not immediately respond to a request for comment.)

“This is my first time really going up against the city,” Smith had said in an earlier interview, before the video’s release. “I’m in uncharted waters.” 

Others had played key roles in bringing to light the video, which directly contradicts the police department’s account of what happened 13 months ago. McDonald, high on PCP, had lunged at Van Dyke, who feared for his life and shot and killed him, officials had said. The Invisible Institute’s Jamie Kalven, a prominent activist journalist in Chicago, had learned of the video’s existence and called for its release in December. That led to a flurry of FOIA requests from national and local media, said Kalven, who also offered a detailed account of McDonald’s autopsy and the significance of the video in a widely read Slate piece in February.

Kalven and his colleagues have succeeded in making other important police records public, but in this case, “I had been told early on [the video] wasn’t something to FOIA,” he said. “I don’t want to minimize or dismiss his role,” he added, speaking of Smith. “It was kind of a lucky swing but a significant public service.”

Smith filed his own FOIA request for the video in May. By the time he filed suit in August, he wrote in the Chicago Reader, Chicago police had denied 15 different requests for the footage, including his own, citing the video’s connection to an ongoing investigation.

The lawsuit was made practical, even without a legal budget, by a provision in state law that allows public-records plaintiffs to recoup fees from the government when suits are successful. Smith was represented by Matt Topic, an attorney with the firm Loevy & Loevy, who has built a practice focused on FOIA cases. Topic doesn’t charge Smith, who has filed dozens of FOIAs with Chicago agencies, when he decides that a suit is worthwhile.

In response to the legal challenge, Cook County Judge Franklin Valderrama ruled that the police department could not deny the request for the video on the basis that it would taint the investigation of the incident, because it is actually another body, the Independent Police Review Authority, that investigates police shootings. The ruling reflects the state Legislature’s strengthening of the state FOIA statute in 2009, Topic said. “The courts are not allowing public bodies to wave their hands and say ‘ongoing investigation’ and get away with it.” 

Though Valderrama’s ruling is not legally binding on other judges, because it did not come from an appellate court—the city chose not to appeal—already some observers have speculated it could have far-reaching ramifications in public-records cases. 

Before coming to Chicago, Smith spent time at newspapers in his home state of Ohio, including stints at the Washington Court House Record Herald, Springfield News-Sun, and Wilmington News Journal. He’s spent much of the past three years learning cryptography and teaching it to others to facilitate communication with whistleblowers. “I was not making money in journalism, which was depressing, but I was teaching myself valuable skills,” he said.

Editors’ insistence on a current news peg and a local angle have sometimes rankled him. “Topics almost always get shot down by editors,” Smith said. He considers comedian John Oliver an inspiration—unafraid to cover important, wide-ranging topics.

He moved to Chicago in part because he wanted to be in a community with vibrant activism. In his adopted city, he has linked up with a loosely affiliated group of journalists and those interested in local issues called Allegedly, which has an activist bent.

“We’re one of those operations that likes to think there’s an activist role to journalism and a journalist’s role to activism,” he said. “We try to be fair in our reporting to everyone, but to think we can be objective is a farce.”

Smith said he was dismayed when many questions to him from other reporters after the judge ordered the video’s release were about whether it would lead to violence. 

“Am I concerned? Yes, it keeps me up at night,” Smith said. “But… to focus stories on that [rather than] the larger trend of violence perpetrated by police is irresponsible.” (He added that he didn’t think the release would lead to violence, and so far, it hasn’t).

Even with the release of the dashcam video and the charges against Van Dyke, Smith and others say much remains unanswered. The local NBC station in May reported on claims that 86 minutes were deleted by police from a camera at a nearby Burger King; officials have said there is no evidence of police involvement in the footage’s disappearance. Several other police officers were on the scene at the time of the shooting—what was their role in the aftermath? Why did it take so long for Van Dyke to be charged?

Along with Allegedly, Smith would like to play a role in pursuing those questions—ideally, one that comes with the stability of a full-time job. “It’s satisfying,” he said of his work. “And I hope to keep doing it.”

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Jeremy Borden is a freelance journalist. Follow him on Twitter @Jeremy_Borden.